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Culture, Criminal Law and Lying

Lance Armstrong was America's most famous cyclist.  He won the Tour de France seven times.  The feat was remarkable, to say the least.  Indeed, it was so remarkable that he was widely suspected of doping.  For years, he adamantly if not snarlingly denied that he had done any such thing.  He pointed the the fact that he had taken dozens of doping tests and passed all of them.

It was all a pack of lies.  He was doping all along.  He had devised a method to scam the testing.  Eventually the mass of evidence against him was so overwhelming that he was stripped of his victories and banned from competitive cycling for life.

Q:  What to do?  A:  What else?  Go on Oprah Winfrey to "confess."

The Armstrong case and his decision to give an interview to Oprah (who to the best of my knowledge knows zip about cycling) tells us something.  It's not directly about criminal law (not yet, anyway, although who knows what criminal fraud cases lie ahead.  Armstrong made a great deal of money by cheating).

What it tells us is that we live in a culture of deceit that gets hugged and sobbed over on Oprah Winfrey, but not punished.  I have posted about this before, albeit in a different context.

The successful operation of our courts depends, at bottom, on a culture that condemns  --  I mean actually condemns  --  lying.  This one doesn't.  The amount of lying that goes on every day and in every medium is astounding, but attempting to hold liars accountable is snoozingly dismissed as old-fashioned, Puritanical hectoring.

Made-up Constitutional doctrine like the "analyses" in Miranda and Lafler represent a threat to the criminal justice system, but nothing compared to a culture that shrugs its shoulders at lying.


Caylee Anthony got no justice because 12 jurors had patience for a liar.

"The successful operation of our courts depends, at bottom, on a culture that condemns -- I mean actually condemns -- lying. This one doesn't."

How about legal professionals who condemn it?

In '92 I spoke with an ADA from Westchester County, NY in a very small group college setting, regarding a contemporary case which involved lying. Similar to Arizona's Jodi 'many stories' Arias, the man accused of rape initially averred
not to know the victim, subsequently
not to have had relations, then finally
to have had decidedly consensual sex. Charges were dropped, and maybe he had not forced anything in reality, determined through means other than confession.

The ADA stated that whilst some people, including her, wished otherwise, other prosecutors and judges gave little to no weight to lying by the accused, in deciding if a prosecutable crime occurred. Furthermore, some were demonstrably reluctant--as with making losers pay court costs in civil suits—to press the charge of lying to law enforcement.

Why so? Though such equates to actus non facit reum, a person lying about more than one thing is likely to lie about others (a meaningful pattern as we are creatures of habit, no?) Should this not somewhat shift presumption?

She claimed that: (1) prosecutors and judges recognized that Defence attorneys routinely advised clients to avoid admitting anything,
and that (2) some people's natural inclination is to "deny everything" upon confrontation, regardless of actual guilt.

What do you think, B. Otis?

Cf: "in a sample of 466 adult men, those with convictions for property crimes were significantly more likely to have been rated as liars…"--Lying as a problem behavior in children: a review, Clinical Psychology Review, vol.61986


If a defendant (or just a potential defendant) wishes to say nothing, so be it (although coming clean is the only true beginning of redemption. The problem is that few people are interested in redemption; they're interested in beating the rap. Indeed, the entire ethos of the defense bar is built on this sole objective).

But lying is not silence; it's the opposite of silence.

When I was in the USAO, I vigorously promoted the idea of bringing more false statements and perjury charges. The idea got nowhere for reasons related to the ones you note. The system expects the defendant and his group to lie, and sub silentio accepts their doing so as "natural" and no big deal.


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