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Lying, More Lying, and Millions Down the Perjury Rathole

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Anyone who has practiced criminal law knows that lying in court is epidemic.  Almost all of it comes from the defense, either the defendant directly or his associates.  This should hardly be a surprise:  Since almost all defendants are factually guilty, their telling the unvarnished truth is the quick route to jail.  Can't have that!

This is not to say that lying by prosecution witnesses is unheard of.  Just recently, Chief Judge Alex Kozinski of the Ninth Circuit wrote a scalding opinion in Mike v. Ryan about a police officer who testified, without any corroboration and seemingly falsely, that the defendant had confessed to him.  This is not the only episode of police lying, and such lying is unacceptable under all circumstances (as of course is the vastly more common defense lying).  The system can't and won't produce justice on a diet of perjury.

A different angle on this was highlighted today is this WSJ article, "The Economic Truth About Lying."  It turns out that the moral costs of perjury are closely matched by its economic costs.  The author, Matthew Lifflander, talks mostly about the costs of lying in civil suits.  But criminal cases take quite a bite, too.  Medicare fraud, insurance fraud and fake disability claims against all levels of government are three prominent examples.

Lifflander echoes a suggestion I made for years when I was a federal prosecutor: That lying should not be tolerated as part of the boys-will-be-boys cheating we have come to expect from losing litigants (among whom criminal defendants are near the top of the list).  The way to stop tolerating it is to start prosecuting it.  When word gets around the local defense bar that your client has a really good chance of going to jail for an additional stint for perjury, the court will get  --  guess what!  --  less perjury.

2 Comments

Your analysis is extremely flawed and clearly based on anecdotal evidence from your own, clearly limited, life experience. I direct you to this response: http://blog.simplejustice.us/2013/03/28/lying-liars-bill-otis-style.aspx?ref=rss

I allowed your comment to appear because I believe in giving opposing viewpoints reasonable exposure.

The response to which you refer, however, is little more than an ad hominem hatchet job by a snark specialist. This is an example of what passes for the author's "analysis":

"When Gideon asked me if I had read Crime and Consequences lately, I responded that I only read it when I'm having way too much fun and need something to bring me back to a life of misery."

Right there you know it's going to get worse, and you don't have to wait long.

"The message contained in this first paragraph of Bill's screed is that truth, from the mindset of someone who believes in prosecution as a religious faith, is whatever they decide it is."

My religious faith is nobody's business, not that this nonsense intends to be taken seriously. But if a point be made of it, the proposition that I look upon the prosecution as a religious faith is point-blank false.

But he's nowhere near finished:

"Similarly, when a defendant, or his associates (I'm really getting to like that word), testify at hearing or trial, and their testimony conflicts with the testimony of an agent or officer, the anticipated outcome is that the judge or jury is going to accept the word of the guy with a shield. The set up dictates as much, one being an alleged criminal having an excellent reason to lie in order to avoid the consequences of his heinous conduct, the other being a trusted public servant who has saved kittens from trees. Who you gonna believe?"

I guess that's supposed to pass for "argument." Maybe it does, in ninth grade.

The response continues, noting that I made a reference "to Milke v. Ryan [which I mistyped as Mike v. Ryan], the case where Armondo Saldate was able to make up confessions while making sure that there was no extrinsic evidence, like video, to show what really happened, and nobody in the legal system (which includes the prosecutors) seemed at all troubled by it. Don't blame Bill for getting the plaintiff's name wrong. It must have been brutally painful to spell out four letter. To use all five might have killed him. Can't have that!"

That's so impressive! Go to town on a typo!!

I was wrong. This stuff is not ninth grade level. It's sixth grade. But you sign on to it. Hey, feel free.

Still let me ask you some questions.

Do you agree that lying is epidemic in court, particularly in criminal cases?

Do you believe that most defendants are factually guilty?

Do you believe that a factually guilty defendant is going to see a full and straightforward rendition of the truth as a quick route to jail?

Do you think that most defendants would prefer to avoid jail?

Do you think that they therefore have a motive to lie and otherwise mislead?

Do you think that defendants and defense witnesses lie more frequently than government witnesses? Or is it the other way around?

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