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Lying in Court
by Judge Roderic Duncan
Copyright © 1992 Nolo Press
One of the things schools don't teach in courses on the court system is
that in
almost every trial, at least one of the parties will step up to the
witness
stand, swear to tell the truth "so help me God" and then sit down and
violate
that oath.
Lying under oath is an accepted element of most trials. If that weren't
true,
there would be little need for a jury. Juries are just supposed to
decide what
the facts of the case were. Was the traffic light green or red when the
accident
occurred? Did the store clerk say that your new computer would handle
the just
released whiz-bang software, or did she just say she thought it might?
In most
cases the jury simply decides who it believes.
Once the jury decides who is telling the truth, it is the judge who
applies the
law to the facts and decides what the judgment will say.
Another fact little known to those who don't live in the court system
every day
is that there is rarely any earthly punishment for lying in court. (I
say
"earthly" because there remains the possibility St. Peter may not take
kindly to
those who swear falsely.) There is, of course, the crime of perjury,
described in
the California Penal Code as follows:
"Every person who, having taken an oath that he or she will
testify...truly
before any competent tribunal..., willfully ...states as true any
material matter
which he or she knows to be false...is guilty of perjury."
But all of us who have been around the court system for a while know
that perjury
is almost never prosecuted. District Attorneys say they have learned
juries won't
convict anyone of perjury no matter how strong the evidence. Whether
this is
based upon actual experience or myths passed down from their elders
isn't clear.
But I can state with some experience they won't prosecute. I sent a
slam-dunk
case of perjury to my local D.A. a couple of years ago and pointed out
that one
of the parties admitted in my court that he had lied under oath. The
D.A. never
even responded to my letter.
One peculiarity I have noticed in judging at several levels of the court
system
is that small claims court seems to be the most perjury-free. Day after
day, in
case after case, I recall people standing up in small claims court and
testifying
to facts that clearly damaged their cases. Things such as: "Well, the
light was
either yellow or red, but I thought I would have time to get through the
intersection on time...besides, that other car was coming on entirely
too
fast."
In Superior Court, where I now sit, it is extremely rare to hear anyone
admit
something that might damage their case. In Family Court, no one I know
has ever
heard a wage-earner in a support case admit that he still was earning
overtime
after the divorce papers were served.
Once in a while it does happen. A warring spouse will look out across
the
courtroom and say something nice: "I know she hates me now, but I'd like
it to be
clear that when we were together she was always a very good mother and a
wonderful wife." When it happens, it sort of blows me away. If he goes
on to say
that they had always agreed that after he finished medical school she
should have
the support necessary to get her M.B.A., I usually end up believing most
of the
rest of what such a witness says.
Is the fact that witnesses seem more honest in small claims court--where
lawyers
aren't allowed--attributable to the fact that when a lawyer gets into a
case, he
or she will advise the client to lie? In a few cases I am sure it
happens, but in
most instances I think a lawyer just points out to the client that if he
admits
he is still earning overtime, the judge is going to increase the support
he is
ordered to pay. The client understands that truth equals a financial hit
and
decides to lie.
Is the lawyer doing something wrong? It depends on nuances too delicate
to
quantify. A lawyer who explains the adverse consequences of certain
testimony, is
only doing his or her job. A suggestion that the truth be "modified," of
course,
is unethical behavior.
I see no evidence that people are lying in court more now than they did
thirty
years ago when I started as a lawyer. The situation probably does not
mean that a
new reform movement to fight lying in court should be formed. People
going to
court representing themselves should just be prepared to prove every
essential
element of their case--and not depend on the other side to admit any
more than
the obvious facts of the situation.
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