by Sherry F. Colb
In my Verdict column for this week, I discuss the case of Warger v. Shauers. Warger involves Federal Rule of Evidence 606(b), which prohibits, among other things, the introduction of juror testimony in an effort to undermine the validity of a verdict. The petitioner, Gregory P. Warger, wants to introduce a juror's testimony about a fellow juror's comment during deliberations, not as itself an error affecting the verdict but instead as evidence that the latter juror materially lied during voire dire and should never have been seated on the jury. In my column, I consider whether the petitioner's distinction -- between prohibited juror testimony about a fellow juror's improper statements during deliberations and permissible juror testimony about a fellow juror's disclosure during deliberations of lies during voire dire -- is tenable.
In this post, I want to explore the meaning of a deliberate "lie." In Warger, the petitioner claims that one of the jurors lied during voire dire about her impartiality and ability to award damages if the plaintiff satisfied his burden of proof. We know that she lied, argues the petitioner, because the juror revealed during deliberations that if her daughter had been sued for the accident for which she -- the daughter -- was responsible, the lawsuit would have destroyed the daughter's life. The petitioner's inference is that this statement -- about the juror's feelings about the lawsuit -- demonstrated the falsity of the juror's claim of impartiality and willingness to award damages if appropriate. Had the juror said during voire dire, "I am biased against plaintiffs because a plaintiff could have ruined my daughter's life," then the juror would have been successfully challenged for cause and accordingly precluded from serving on the jury.
Though there is room for quibbling, I am prepared to concede to the petitioner that the juror's statements about her daughter are logically inconsistent with her prior claim to be unbiased. Does this mean, however, that the juror was necessarily lying? Was her claim of objectivity comparable to a claim she was childless, even though she in fact has a daughter, as revealed by her comment during deliberations? I think not.
To lie is to to utter a statement that one knows and understands to be false at the time of the utterance. Because we humans so regularly engage in rationalization and subconscious self-deception, however, the category of "lies" turns out to be quite a bit narrower than the category of "self-evidently false and illogical claims."
Thanksgiving is tomorrow, so it seems an appropriate time to cite a familiar example of the phenomenon of non-lying utterance of self-evidently false propositions. Americans in overwhelming numbers claim that they find unnecessary violence against animals to be morally reprehensible conduct and that they would never intentionally cause unnecessary suffering to an animal. Yet most Americans will be feasting tomorrow on the post-mortem remains of an innocent, curious, and nurturing bird who suffered tremendously during his or her radically abbreviated life and then felt terror and pain when facing his or her slaughter at the end. Furthermore, unlike most days of the year, on which the average American may quietly consume the flesh, lacteal, and ovulatory secretions of a tortured being at virtually every meal, Thanksgiving seems to license consumers to openly celebrate the privilege of carving up a corpse whose identity as a "bird" is not even hidden.
Does all of this make Americans' claim that they would never intentionally and unnecessarily harm an animal false? Yes, plainly. Purchasing turkeys and other animal products generates demand for cruelty that is extreme, profound, and entirely unnecessary. Vegan Thanksgiving feasts (some recipes here and here) are delicious, joyous, and far less likely to yield the food poisoning that is the frequent aftermath of our so-called "Turkey Day" (a name that makes me think of designating a day on which several prisoners on death row are executed as "inmate day").
But false statements -- even preposterously false statements -- are not the same thing as deliberate lies. I suspect that many and perhaps even most of my fellow Americans who participate in a tradition of cruelty and slaughter do so without acknowledging to themselves the horror that they are thereby collectively inflicting on approximately forty-six million of their fellow earthlings. I "loved animals" for years before I became vegan, and I managed for most of that time to inure myself to the fundamental contradiction at the heart of my conduct at mealtime, patting the dog next to the table as I consumed a tortured bird's flesh or ovulatory secretions on that same table.
If we understand that the enormous inconsistency surrounding American consciousness at Thanksgiving is not precisely a "lie," then it would be difficult to accuse the juror in Warger of having lied during voir dire. I suspect that she believed, as most of us believe of ourselves, that she would be fair and open-minded. She probably was not even thinking about her daughter's situation when she answered the attorneys' questions. Likewise, most Americans, if asked "Would you hurt an innocent, feeling creature who loves being patted, displays empathy toward others, and enjoys cranberries and mashed sweet potatoes as much as you do?," would state and would believe that they would not, that they would do the right thing and refrain from violence.
The solution to self-deception is not to call it a lie -- because that does not accurately describe what is going on (and can therefore be called a falsehood in its own right). The solution is to allow ourselves to see the truth that has been there all along and to act accordingly. The problem is rarely the utterance of a deliberate lie. It is more commonly the failure to look clearly and unflichingly at ourselves, at our values, and at how those values can and do manifest themselves in our conduct in the world. And the good news is that we can make the decision to change.
Please enjoy a compassionate and non-violent Thanksgiving.