Michael Eriksson's Blog

A Swede in Germany

A few more thoughts on lies under oath

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A recent post ([1]) of mine contained a brief discussion of lies under oath and similar circumstances*, especially with the claim that the accused** should be given some leeway to lie, not just to refuse a statement. Having run this through my head a few times since then, especially while writing [2], a few additional points:

*There are plenty of cases in various jurisdictions where telling a lie is punishable even with no oath present. For the sake of simplicity, I will speak just of “oath” below; however, most of what is said will apply with no, or very little, change to such other situations. Similarly, I will focus on criminal trials below, but at least some of the contents will generalize to other contexts. Notably, if someone is sued for civil damages over a killing (as e.g. OJ Simpson), he must have sufficiently similar rights, lest the civil case forces an incrimination that makes his rights during a criminal trial moot. (However, a more general right to lie during a civil suit should not be inferred: The clear majority of civil suits will give no defensible reason for a lie.)

**I stress that this is not extended to the accuser, be he a claimed victim or a prosecutor, who is in a very different position. Further, that an extension, if any, to witnesses would be restricted to the protection of the accused and others (including the witness, himself) who might be quasi-accused through a truthful statement, with very considerable other restrictions applying. For instance, a mere “he is my friend and I want him to go free” would not be enough motivation to justify a lie; in contrast, the “Jewish friend” example from [1] would. An example like “I did not do it; Y did” shows why I do not give even the accused free reign, just “some leeway”. (But I have not thought this area through sufficiently to give a suggestion for an explicit set of rules. A particular complication is that such rules would likely involve the “justness” of laws involved; with the secondary complications that this area is somewhat subjective and that the justice system will typically consider all laws just or to-be-obeyed-irrespective-of-justness in a blanket manner—even when it comes to e.g. violations of international norms or commonly accepted human rights.)

It is tempting to take the view that if lying is not allowed, trials become that much easier: Confront the defendant with a point-blank question and he will now either confess and we are three-quarters done, or he will reject the accusation and, should he have lied, face harder punishment than if he had told the truth. With sufficiently harder punishment, the guilty will have a strong incentive to tell the truth. There are several problems with this, however, including:

  1. That a confession is not necessarily truthful. For one thing, we have situations like Sture Bergwall (cf. [2]); for another, we replicate the problems around U.S. plea bargains*, if the additional punishment for lying under oath is severe enough (and if it is not, the system will not work anyway): Some, possibly many, innocents will proclaim themselves guilty in order to reduce the potential punishment, especially when they know that the risk of conviction is large**.

    *These come quite close to the above situation, the main difference being that a “rebate” is offered to those who confess, rather than a punishment extended to those who do not.

    **Note that this can be the case even for the innocent, be it through misleading evidence, a prejudiced jury, or some other circumstance.

  2. That a question could be (deliberately or accidentally) constructed to remove the possibility of expressing mitigating circumstances, be misunderstood by the accused through an imperfect understanding of legal terminology or the laws involved, or otherwise be causing a misleading answer. Consider e.g. the question “Did you in cold blood put the gun against the victim’s head and press the trigger? Yes or no!”: If that is what happened, the answer must be “yes”; however, central points of the longer answer “yes—but he told me that the gun was not loaded” are lost. Even if someone deliberately tried to construct a fair question, or even set of questions, chances are that he would fail.*

    *I am beginning to suspect that similar complications have contributed to the plea system: We start with an abstract plea of “innocent”/“guilty”/whatnot and use the trial to elaborate on the defense’s view (as well as the prosecution’s, etc.), because it is not normally realistic to present this view as the response to a single question. (In my first draft, I listed an “almost invalidation of the plea system” as one of the items speaking against the type of “point-blank question” discussed here, the two being similar in general principle but potentially very different in details and implications. However, by now I suspect that if the “point-blank question” was tried, it would actually, over time, evolve into some variation of a claim of “innocent”/“guilty” with an ensuing interactive elaboration, which basically brings us back to a plea system or something very similar.)

  3. This would severely reduce the possibility for citizens to cope with unjust laws and unjustly large punishments, say regarding a ban of certain political opinions.
  4. The question of who determines the truth grows even larger than it is today, with ample room for abuse, be it through incompetence or malice. View the courtroom scenes from “Pleasantville” for a good example of the potential problems.
  5. Not every faulty claim is actually a lie, and a rule like this could lead to punishment for accidental errors: If the matter seemed too unimportant at the time (e.g. because it did not occur to the perpetrator that his actions could be illegal), if too much time has passed, if the original situation was too stressful, or similar, it is quite possible that someone would be honestly unaware of, or have honestly misunderstood the implications of, an act that he actually committed.

On the other hand, we could have a possible credibility* issue: The point of taking an oath to tell the truth is the implied greater credibility, ideally to the point that whatever is said can be taken to be truth. Allowing lies would obviously reduce this credibility, doing more harm than good to the actually innocent. However, outside of times where people honestly feared divine punishment for violating oaths*, the actual gain in credibility is likely quite low as it is. To boot, it is well-known that memory imperfections and influenceability make most people poor witnesses—even when they do try to tell the truth: No oath can make up for a flawed memory. As a juror, I would almost certainly give less weight to oaths than to the consistency and plausibility of the claims themselves. Possibly, also to perceived credibility, impartiality, whatnot of the witness. (My reservations arising from the knowledge that it is very easy to misjudge people, especially when having no individual base-line for comparison, and the relatively weak correlation between apparent confidence and e.g. being truthful or being factually right, between apparent and actual friendliness, etc.)

*Indeed, in my impression, the taking of oaths is a legacy from a time where trials needed to be settled mostly through the credibility of the involved parties and their witnesses, due to factors like a complete absence of forensic science, the need to wait for months until a traveling court came by, whatnot. (As an aside, with the growing means of manipulating evidence and the near uselessness of digital evidence, we might eventually move back in this direction.)

A way to partially resolve these issues, without allowing lying, is to strictly forbid a certain type of question (e.g. “Did you shoot him?”), and, going by TV, this might actually partially be the case in the U.S. However, I am skeptical as to whether this would allow the same degree of protection.

As an aside, some of the above discussions and [2] also point to why I strongly believe in statutes of limitation*, even for e.g. murder, and that the common trend to increase or abolish them is a sign of barbarism, not civilization: To, say, put someone in court for a murder that took place fifty years earlier more-or-less guarantees that memories will have been distorted or lost—for instance, what accused can say what he did at a certain day fifty years earlier, let alone at what time. Outside of the main topic, it also severely increases the risk of physical proof being destroyed or contaminated, alibis and other witnesses dying, etc.—usually in a manner that one-sidedly favors the prosecution, which could document evidence and testimony shortly after the murder, while the innocently** accused might not even have heard of the event until said fifty years later and might now have to drum up a defense out of nothing. For sufficiently young perpetrators (who are guilty) relative the time passed, we might also have to consider factors like changes as a person over the intervening time—is it really right that a ninety-something is dragged into court because he served in a Nazi extermination camp when he was twenty? At such extremes, it seems less like justice to me and more like vengeance—or even abuse of the justice system for political gains.

*Exactly what limits for what crimes is a too big question for this post, with the need to carefully judge the severity of the crime, the options for the investigation, chance of new evidence, whatnot, vs. fairness towards the suspect. For murder, I could imagine that we land somewhere between five and twenty years, but where in that wide interval would be pure guesswork. (A deeper analysis would also need to consider the possibility of waiting periods and extensions, and possibly other exceptions to a plain limit.)

**Obviously, laws around statutes of limitations must accommodate the presumption of innocence. The common blanket reasoning that there should be no statutes of limitations, to ensure that no guilty party will go unpunished, is not compatible with this principle. Generally, many of the problems with debates around law enforcement and the justice system, including e.g. surveillance, go back to a too great focus on “getting the bad guy” and too little regard for the danger of getting the innocent instead. (As is likely clear from my recent posts, I am very aware of that danger.)

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Written by michaeleriksson

May 11, 2018 at 11:45 am

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