Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or strikes the very foundations of our belief system. This week’s word is the latter.

Written by: Steve Glista

John thinks he saw brake lights before the impact. Mary knows that the light was yellow but the Impala didn’t slow down. John sees the impact of the airbag eject the cell phone from the driver’s hand, Mary notices the child seat in the back of the Honda. John is paralyzed with fear … Mary dials 911 with one hand while she runs to check whether anyone is hurt.

Even though they experience the same event, John and Mary perceive it differently. Their subconscious will filter their perceptions even further before they form long-term memories, and by the time they write out a statement for the police each might describe an entirely different set of circumstances. In the vocabulary of the law, the differences inherent in individual perceptions, opinions, biases, and beliefs are all bundled together into the term “subjective.”

Evaluation of subjective beliefs may play a part in many diverse areas of law. In tort and criminal law, it matters whether the guy who stomped on a victim’s toe subjectively intended to do her harm. Hurting someone else on purpose is deemed more offensive than a clumsy accident, but sometimes the only difference is Bigfoot’s subjective intent. In contract law, the court sometimes considers whether parties acted as though they believed there was a contract. Subjective belief in the truth of a published opinion can be used as a defense to a defamation lawsuit, because “there is no such thing as a false idea.”

Subjective standards are often presented in contrast to objective tests. A subjective belief must be inferred from other evidence, and can depend on personal bias. An objective test can be resolved by examining independently verifiable facts, and (at least in principle) should not depend on the opinions or personal bias of the examiner. While John and Mary have conflicting subjective memories about whether or not the Chevy slowed before the accident, a court can examine the airbag impact recorder to objectively determine whether or not the driver touched the brakes.