“Truth,” the proffering of some determinate version of what really happened … [is] a construction produced in and through practical activity. (Pollner 1987, xi)
This chapter is about the construction of “truth” by judges in legal decisionmaking. It investigates how judges operating within an adversarial system of law are able to “find the true facts” from the competing evidence presented to the court by parties to a dispute. In the process, it identifies the techniques used by judges to explain the phenomenon of conflicting accounts of reality in such a way that the belief in a single reality is not threatened. Fundamental to this analysis is the notion that language plays an integral role in the production and reproduction of social facts and social order.
Where a dispute between parties is heard before a court in an adversarial system of law, at least two competing accounts of reality are presented—the applicant’s and respondent’s. In addition, there may be additional versions of events related to the court by any witnesses called by the parties. In jurisdictions that use an adversarial system of law (such as Australia, the UK and the USA), the judge is not permitted to undertake any investigations into the facts in dispute before the court. Judges are restricted to deciding the case based solely upon the evidence brought before them by the parties to the case, and such evidence must comply with the requirements of the rules of evidence that apply in that jurisdiction. This is in contrast to the inquisitorial system of law that exists in many European countries, where the judge acts as an independent investigator to the case.
From the judge’s perspective, the competing claims of the opposing parties stand in some unknown relationship to the “real” or “actual” state of affairs (Pollner 1987). In determining “what really happened,” the judge is faced with a dilemma, for the “real” event occurred independently of the evidence brought before the court by the parties to the dispute. Yet this evidence is the only way the event in question is made “observable” to the judge. As a consequence, the judge’s determinations of “what really happened,” or the “‘truth,” must be founded on an anticipation of the formal structure of real things (Garfinkel 1967; Pollner 1987, 30). And so, from this collection of competing claims, judges rely upon certain beliefs about reality to make a “finding of fact” which is the legally authoritative declaration of “what really happened.”
This chapter takes as its focus the rulings made by federal judges of the Family Court of Australia between 1976 and 1995 in which allegations of domestic violence were considered as part of the decision-making process. It employs theoretical approaches drawn from the fields of ethnomethodology, the sociological analysis of motivational accounts, and studies of narratives in discourse. Of particular value to the analysis is the work of Garfinkel (1967) in relation to legal decisionmaking and justification, Sacks’ (1979) concept of “membership categorization devices,” and Pollner’s (1987) analysis of the process of mundane reason and the explanation of conflicting accounts.
Family Court Judgments and Case Reports
The narratives that form the basis of this analysis were drawn from published case reports of judgments of the Family Court of Australia. Central to the judgment is the judge’s “finding” of the “facts” of the case, which is the judge’s interpretation and resolution of the litigants’ testimony of the events relevant to the dispute before the court. This highly condensed account of the judge’s construction of the “facts” combines with the authority of the law to become the “truth,” the definitive legal reality of the litigants. The judge makes a final ruling by applying his or her interpretation of the relevant law to these “true facts” of the case.
In addition to the obvious and immediate impact of the judge’s ruling on the lives of the parties before the court, the judgment published in a case report also has the potential to shape the law into the future. Under the “doctrine of precedent,” if a case can be demonstrated to have facts that are consistent with an authoritative case, then a strong legal argument can be made for the new case to be decided in accordance with that authority. Published cases are easily accessible to legal practitioners, and so are more likely to be cited and applied in legal argument in future cases. References to past decisions published in case reports is also a means by which judges and legal practitioners can maintain or challenge certain social issues in a “continuing legal conversation” across time in a way that maintains the authority of legal language in resolving social disputes (see Mertz 1996, 153). Accordingly, published case reports can be seen as especially valuable examples of legal reasoning and the construction of reality. Even though they may not represent a typical cross-section of cases heard before the Family Court, published reports do represent the more influential decisions made by the Family Court.
The case reports selected for this study were in relation to court hearings heard pursuant to the Australian Family Law Act (1975) between 1976 and 1995, and involved a consideration by the court of allegations of violent acts perpetrated by the male respondent against the female applicant. Around 30 case reports were found to have been published over this period that contained references by the judge to an event of violence. Of these reports, 20 were selected that contained at least two paragraphs of description of a violent event. Of these 20 case reports, 10 dealt with disputes around child access or custody, 9 related to restraining orders, and one report concerned an application for common law damages for assault.
The selected case reports were read in detail, with attention paid to instances throughout the texts where conflicting accounts of a violent event were presented to the court by the parties to the case and were then resolved by the judge. From this detailed reading, three stages emerged as fundamental to the way in which judges resolve conflicting accounts of reality into one authoritative version of “the truth.” The first stage involves the judge reconciling a mundane belief in a single version of reality with the fact that different versions of reality are presented before the court for resolution. The second stage is where the judge makes a “finding of fact” from the conflicting accounts of reality by constructing a narrative within the judgment of “what really happened.” The third stage of the decision-making process relates to the way in which the judge justifies the decision based on the “facts” which were “found.” This chapter looks in detail at the first and second stages—the application of “mundane reason” to resolve conflicting accounts of reality and the “finding of facts” by judges.
Mundane Reason and the Resolution of Conflicting Accounts of Reality
Pollner (1987, 23) argues that rather than there being a reality “out there” that is impervious to individuals’ social construction of it, an objective reality is advanced and sustained through a process of “mundane reason” supported by certain beliefs and prejudices about the nature of reality. Pollner analyzes these beliefs and prejudices to demonstrate how they effectively protect the process of mundane reason from outside challenges.
The primary function of a judge in the Family Law Court of Australia is to resolve a dispute between two parties. Accordingly, a judge expects that parties to a case will have conflicting accounts of certain sets of events. However, the process of mundane reason used by a judge to resolve conflicting accounts is based on the belief that there is only one objective reality. If, as mundane reason holds, a single, independent “real world” does exist, then logically every person should observe it in the same way. The existence of conflicting accounts of one reality poses a fundamental threat to the key assumption of mundane reason and the judge is faced with a problem. On the one hand, the judge needs conflicting accounts of reality in order to function as a “judge” and resolve the dispute. On the other hand, the process of reason employed by the judge to resolve conflicting accounts is based upon the belief that there is only one objective reality that, presumably, every person should experience in the same way.
According to Pollner (1987), mundane reasoners deal with conflicting accounts of a single reality by explaining a contradiction in one of three ways. First, a mundane reasoner may hold that the observers were experiencing fundamentally different events, objects or scenes (explanation at the level of object). Second, it may be suggested that the observer’s experiential or cognitive processes were impaired or distorted in such a way that they had poor vision or were psychologically impaired (explanation at the level of experience). Third, a mundane reasoner may state that the observers were relating the experience in a non-literal method—that is, that they were lying, joking or speaking metaphorically (explanation at the level of account).
The selected case reports were analyzed to identify how judges resolved the dilemma of conflicting accounts of violent events between the parties. The analysis was informed by Pollner’s identification of techniques applied in order to protect threats to mundane reason, namely: explanations at the level of object, experience and account. The results of this analysis are discussed in this section.
Explanation at the Level of Object
An explanation of conflicting accounts at the level of object relies upon an assumption that the two parties were observing a different scene, object or event. In none of the case reports included in this analysis did a judge resolve competing accounts of reality by way of explanation at the level of object. This is a somewhat unsurprising result, as a violent act committed by the husband against the wife requires that both parties be present in the same time and space and be engaging with each other. Logic therefore precludes a judge from explaining different accounts of the alleged act of violence by saying that the parties were actually witnessing a different event, or that they were present at different times.
Explanation at the Level of Experience
An explanation of accounts at the level of experience makes reference to the cognitive or experiential processes of the account-giver in order to resolve conflicting versions of events. Explanations at this level may include the claim that the observer “got the version of reality wrong” because he or she had poor vision, poor memory, was hallucinating or had a psychiatric disease. In the case reports analyzed, two types of explanation at the level of experience were found. The most common of these was the judge’s reference to the psychological state of the party relating the account. There was also one case where an “appeal to memory” by one of the parties to explain conflicting accounts was considered by a judge, and this is discussed later in this chapter in the context of “lying.”
In those instances where the judge appealed to psychological factors as a means of explaining and resolving conflicting accounts of reality, differences emerged in terms of the psychological defects identified in husbands and those identified in wives. The psychological defect most commonly attributed to the husband in this context was the inability of the husband to see the chain of causality of his actions. For example, in one case, the judge concluded that the wife committed adultery because she was seeking solace from her unhappy marriage. The judge said:
[The husband] lives by a set of standards which he considers right for him and which he can amply justify in his own eyes, and it seems to me that he does not allow that his conduct could in any way have contributed to the rather sad and miserable affair into which his wife entered. (Gillie and Gillie 1978 FLC 90–442)
In contrast, the psychological defect most commonly attributed to the wife was a belief that events were actually much worse than they were. In the following example, the judge accepted that the wife was convinced that the events occurred in the way she described, but the judge explained that she only held that belief because she had been subjected to stress and psychological problems:
In terms of credibility, I find the applicant to be a basically honest witness, prone at time to exaggerate the magnitude of her husband’s alleged faults, but in view of her stressful history and her difficulties in coping with it, I think the degree of their magnitude is real enough to her. (J. v. J. 1982 7 Fam. LR 1, 011; emphasis added)
The judge’s appeal to the psychological state of the parties is used to explain how a party could make a claim about events that “did not really happen.” When there was a disjuncture between the events that the husband claimed had occurred and the “true events” as the judge found them, the judge found that the husband “believed” his actions were not as severe or as significant as they were. In contrast, when the wife’s account of events was different to the judge’s finding of the “true events,” the judge typically found that the wife genuinely “believed” that the events were worse than they were. In referring to the psychological state of the party, the judge reconciled anomalies between versions of reality by saying that the parties themselves believed their versions to be true, even if they were not aligned with the judge’s findings of the “true facts.”
Explanation at the Level of Account: Lying, Exaggeration and Truthfulness
The most frequently used technique used by judges for explaining conflicting descriptions of an alleged act of violence in the case reports was explanation at the level of account. In these instances, the judge explained the existence of two competing versions of reality by finding fault with one (or both) of the accounts. This meant the judge could dismiss one (or both) of the accounts as implausible, and so maintain the belief that there can only be one “true” account of events. There were two types of faulty accounts identified by judges. The first was that an account was given by a witness who was “lying,” which meant that the judge believed that his or her version of events did not occur at all. The second was the judge’s finding that the witness’s version of events was an “exaggeration” of the real events. In other words, the judge believed that the basic events did occur, but the witness “added on” extra events for effect. This section explores “lying,” “exaggeration” and “truthfulness” in greater detail.