Truthiness at law

D.O.M. has been much pressed for time of late, so I’m going to look at some dissents he’s noted and ultimately make good on his promise to revisit Gilbert. These opinions present a problem I can’t tackle in a single post, so I have to proceed episodically. I want to suggest that what Stephen Colbert dubbed truthiness is spreading through the law like a nasty virus and that, whatever harm truthiness inflicts when spewed by politicians and propagandists, its employ in opinions may be even worse. And the dissenters are sounding the alarm.

D.O.M.’s quote from Judge Wilson’s Duke v. Allen dissent shows that the majority's affirmance of the state courts’ facts is indefensible. “But,” as Justice Scalia recently wrote, “reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand.” Far more grave is this claim by the Duke majority: defense counsel’s saying “‘let the record reflect that the district attorney pointed straight at the defendant when he said that,’ is just an oral motion made by a lawyer; it does not establish the fact of a gesture having been made.”

Leaves you dumbstruck, right? The law now considers a plain statement of fact—let the record reflect—to be a motion. If you’re the dissenting judge, what do you say to that? How do you explain how a record is made to someone who seemingly doesn’t grasp it from the word “record” itself? My first thought was that one could cite a few of the thousands of reported cases where a judge uses the phrase (and maybe for emphasis allude to the scene in My Cousin Vinny where the judge says to the court reporter, “Let the record reflect that counsel is holding up two fingers.”). A judge would hardly make a motion to himself (or to a court reporter), ergo the phrase must not signal a motion.

Judge Wilson chose another tack. In addition to a couple of cases in which counsel used the phrase, he cited evidence gurus Mueller & Kirkpatrick for the proposition that a statement for the record is no motion. But he didn’t cite M&K’s authoritative five-volume Federal Evidence treatise. No, he cited page 17 of their law school textbook, the one I use to teach evidence to UM’s 2Ls and 3Ls. Maybe I’m seeing more than what’s there, but I think that when, in a published case, one judge disputes another judge’s holding with reference to a law school textbook, there’s a veiled message there.