'Here!' cried Alice, quite forgetting in the flurry of the moment how large she had grown in the last few minutes, and she jumped up in such a hurry that she tipped over the jury-box with the edge of her skirt, upsetting all the jurymen on to the heads of the crowd below, and there they lay sprawling about, reminding her very much of a globe of goldfish she had accidentally upset the week before.
'Oh, I BEG your pardon!' she exclaimed in a tone of great dismay, and began picking them up again as quickly as she could, for the accident of the goldfish kept running in her head, and she had a vague sort of idea that they must be collected at once and put back into the jury-box, or they would die.
'The trial cannot proceed,' said the King in a very grave voice, 'until all the jurymen are back in their proper places-- ALL,' he repeated with great emphasis, looking hard at Alice as he said do.
Alice looked at the jury-box, and saw that, in her haste, she had put the Lizard in head downwards, and the poor little thing was waving its tail about in a melancholy way, being quite unable to move. She soon got it out again, and put it right; 'not that it signifies much,' she said to herself; 'I should think it would be QUITE as much use in the trial one way up as the other.'
~Lewis Carroll, Alice's Adventures in Wonderland
***
The quest for truth is elusive. Truth is an ideal - ethereal, unattainable. It leaves a shadow, a lingering scent, a fading memory. We rely on the myth of a knowable truth.
On the first day we discovered that King Solomon's wisdom drew neither from omniscience nor from a divine ability to render justice. Rather, the King's skill was in devising a judgement of which the people of Israel would stand in awe. The simplicity of his inquiry and the opaqueness of his logic insulated his declaration from reproach.
Like King Solomon, the jury is charged to discover an unknowable fact, permanently lost to us. The rules of evidence delineate the rules of the game. They seductively assure us that they have been designed "to the end that truth may be ascertained." They bolster the notion that the process is methodical, resulting in a reliable, even scientific determination. Yet the assertion that a dying man would not expire with a lie on his lips echoes folklore, not science.
And yet, in the absence of truth the jury must nonetheless secure justice. But justice predicated on what?
From a void, the judicial system seeks to compose a story -- one that is credible to society, that may be accepted as the truth, even though it may not be. The jury is cast in the role of author. It facilitates the resolution of disputes in a manner perceived as fair. It permits the meting out of punishment, and the compensation of damages. It allows us to function as a society. For without the definitiveness of the jury's decisions, we might forever be trapped in limbo -- lost between the realities of what might be.
The jury can exist outside of its box no more than Alice's goldfish could outside of their bowl. The inarticulateness of the jury's verdict is a shield which protects its decision from scrutiny. Just as the fact that the lizard may be upside down is of no import, so too is the composition of the jury of no significance. We must trust the verdict of the jury.
***
At this moment the King, who had been for some time busily writing in his note-book, cackled out 'Silence!' and read out from his book, 'Rule Forty-two. ALL PERSONS MORE THAN A MILE HIGH TO LEAVE THE COURT.'
Everybody looked at Alice.
'I'M not a mile high,' said Alice.
'You are,' said the King.
'Nearly two miles high,' added the Queen.
'Well, I shan't go, at any rate,' said Alice: `besides, that's not a regular rule: you invented it just now.'
'It's the oldest rule in the book,' said the King.
'Then it ought to be Number One,' said Alice.
~Lewis Carroll, Alice's Adventures in Wonderland
***
The rules of storytelling indelibly bear the imprint of those who design them. A struggle to control the narrative manifests itself in the types of evidence we accept or reject. This power dynamic may account for the liberal admission of the past sexual conduct of rape victims, prior to the enactment of rape shield-provisions. The rules delineate the permissible components of our story. In doing so, they protect the interests of some parties, while diminishing the stature of others.
The rules touch upon not only the substantive content of what may be considered, but also the form in which information is presented. The inquisitor permitted to pose leading questions retains control of the story. The respondent is confined to answering these questions and is never able to frame the account in her own terms.
In the sorting of what is relevant and reliable, we prevent the telling of certain stories. Evidence which is insufficient to carry a matter through the procedural gates of the judicial system lacks the stamp of credibility and is often rendered invisible. When judges confront issues of scientific proof of causation, their assessment of the foundation of an expert's opinion may be an effective bar to recovery. Instead of responding to the intermediate nature of proof, we play a high stakes, all-or-nothing game.
For countries whose history is marred by oppressive and violent regimes, the consequences of evidentiary gate-keeping are even greater. The retelling of history is critical to rebuilding society and the healing and reconciliation of the community. Yet requirements of proof may prevent official recognition of testimony, thereby undermining the validity of many stories. How can the victim who was blindfolded prove the identity of his captors? When the rules are designed by those with something to hide, the applicable standard of evidence may reflect not an effort at fairness, but an attempt to exonerate the accused.
Who then should be empowered to write history? Who is impartial? The danger in asking this question is that it necessarily excludes some stories, and advocates the concept of one official version of the past. We avoid the assumption that a single version exists by reforming the question. "How," we should ask, "may history be told?"