Friday, March 18, 2011
Artificial turf in front of the Harris County Civil Courthouse. What a perfect metaphor for what happens in trial.
In trial an action is deconstructed before our very eyes and ears. That same action, or a reasonable facsimile, is then rebuilt through testimony and physical evidence. But few, if any, of the actors really know what happened. Memories fade. We speculate. We look for patterns that we can plug what we see and hear into to try and make sense of it.
If you ever speak to artificial intelligence gurus they will tell you that the key to building a more intelligent machine is to develop pattern recognition algorithms so that the machine can make assumptions based upon the context of the information fed to it. That's how our brains work. We see part of a picture or part of a word and we fill in the blanks based on the context. Most of the time we're right -- but sometimes we're wrong.
Witnesses "refresh" their memories by reviewing documents prepared by someone else sometime after the events occurred. They testify in absolutes. Let's face it, most of us don't remember what we had for dinner two or three nights ago -- but witnesses will testify as to exactly what happened one night over a year ago based upon a casual glance.
The attorneys have an agenda. We ask questions that we know will give us the answers we need to fit into our theory of the case. We don't want a witness rambling on about what they saw, heard or thought they saw or heard.
We take the raw earth and we construct our own structure atop it. A structure that may or may not bear any semblance to reality. We then expect six or twelve folks plucked off the street to make sense of what happened and render a judgment as to who's at fault or who acted badly.
What happened on the night may be fact. But what we see and hear in the courtroom is anything but.