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The Facts On Facts
By Michael A. DePompolo
Facts can be right, wrong, or indifferent, but they are nevertheless facts. We tend to think that facts must have inherent truth, but that is a common misunderstanding. That mentality causes us to see things in terms of black and white instead of varying shades of gray. In law, facts can be partly or even completely wrong and misleading. The jury will ultimately decide what facts are right and wrong, which should be relied upon and facts to ignore.
The origin of a fact is less important than its empirical nature. Facts are all too often scrutinized by foundational and admissibility requirements, rather than for their own merit. Whether the jury should be aware of a fact is the first question, not how will it go into evidence. Lawyers can become incredibly creative when entering factual material.
A fact is not an opinion, but an opinion can be a fact. "I think that you will get something out of reading this article." That statement is my opinion, but it is not a factual matter that you will gain even a glimmer of satisfaction. However, my opinion has been stated here for all interested persons to read. It will endure. The actual reality and existence of the stated opinion makes it a fact.
Facts rooted in native intelligence often carry more weight than facts based on created intelligence. Common sense will prevail over contrived wisdom. Therefore, fact witness testimony on facts may carry equal or sometimes even more weight then that of an expert.
The interpretation of a fact may change the attributes of the fact. Unconscionable as it may seem, this is the reason for the proliferation of the testifying expert in law and the spin doctors of politics.
The attributes of a fact may become more important than the fact. How a fact is developed, assembled and disseminated affects the acceptance of the fact. Perhaps, the most widely known example of this was in how the American people received the Starr Report in the historic political Whitewater matter of the Clinton era. By the time the report containing factual material and opinion was made public, there was a collective yawn of, “Don’t bother me with the facts, my mind is already made up.”
A fact not in evidence may be just as powerful as one that is in evidence. You do not intend for the jury to know everything, do you?
Ignoring a fact does not make it go away. A fact can be accept or rejected. Regardless of what you do with it, the fact remains.