“Truth” or Consequences

Much has been made of the fact that David Radler is testifying before his own sentencing, which can have a negative impact if the prosecution decides he did not testify “truthfully.” Calling the version of the relevant history that the prosecution agrees with—because it builds their case against Black and the other accused—“the truth” begs a crucial question. If nothing else, it constantly reminds the jury their loyal servants in the prosecutor’s office are not just presenting evidence; they are putting forth “the truth” as they believe, in all their public service earnestness, to the bottom of their public servant hearts, to be the one and only.

The discerning reader might wonder at the fairness, not to mention illogicality, of such a situation. In fact, objectively, there would seem to be a certain corrupting potential in a situation where a witness must stick to a story that has demonstrably pleased the prosecution, under pain of penalty for any deviation.

A Canadian, and even British reader, concerned about facing criminal charges and having such a situation arise at their own trial can rest easy: this is pre-eminently an American phenomenon. It arose in the context of American justice having evolved into a marketplace of guilty pleas. The overwhelming majority of American criminal cases are resolved by plea bargains. Contested trials are very much on the endangered species list. In that environment, it is unsurprising that the purchaser’s COD logic—“I’m not paying until you have delivered”—would be applied to turncoat witnesses bargaining for their own interests with their evidence.

British jurisprudence and in turn Canadian criminal law, while in strict theory allowing accomplices to testify before they themselves have been sentenced, limit such a situation to exceptional circumstances. The basic rule is that accomplices should be sentenced before they testify. Australia and New Zealand agree. To allow a witness to testify while unsentenced could impact on the witness almost like a bribe or a threat. When a witness’s testimony can lead to a payoff or benefit, or evidence of which the prosecution disapproves can lead to a higher sentence, it defies everything we know about human nature to assume the witness will be unaffected. The witness’s agreement with the prosecution is usually placed before the jury at the prosecution’s behest, but some judges do not allow the prosecution to read to the jury the standard paragraph in plea agreements about “promising to tell the truth” because it artificially enhances the witness’s credibility. No one on the prosecution side knows what the real truth is. The clause really means “tell the story that we have declared acceptable.” Judges that allow the paragraph about telling the truth to be placed before the jury usually caution the jury along the lines above: that they should disregard that phraseology in their decision as to whether they believe the witness or not, and further, just because the prosecution is happy with that witness’s “truth” does not make it true. What is “true” is the jury’s decision.

All in all, another reason the accused would undoubtedly much prefer to be standing trial in Canada.