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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 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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