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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
almost every trial, at least one of the parties will step up to the
stand, swear to tell the truth "so help me God" and then sit down and
Lying under oath is an accepted element of most trials. If that weren't
there would be little need for a jury. Juries are just supposed to
the facts of the case were. Was the traffic light green or red when the
occurred? Did the store clerk say that your new computer would handle
released whiz-bang software, or did she just say she thought it might?
cases the jury simply decides who it believes.
Once the jury decides who is telling the truth, it is the judge who
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
is that there is rarely any earthly punishment for lying in court. (I
"earthly" because there remains the possibility St. Peter may not take
those who swear falsely.) There is, of course, the crime of perjury,
the California Penal Code as follows:
"Every person who, having taken an oath that he or she will
before any competent tribunal..., willfully ...states as true any
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
is almost never prosecuted. District Attorneys say they have learned
convict anyone of perjury no matter how strong the evidence. Whether
based upon actual experience or myths passed down from their elders
But I can state with some experience they won't prosecute. I sent a
case of perjury to my local D.A. a couple of years ago and pointed out
of the parties admitted in my court that he had lied under oath. The
even responded to my letter.
One peculiarity I have noticed in judging at several levels of the court
is that small claims court seems to be the most perjury-free. Day after
case after case, I recall people standing up in small claims court and
to facts that clearly damaged their cases. Things such as: "Well, the
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
In Superior Court, where I now sit, it is extremely rare to hear anyone
something that might damage their case. In Family Court, no one I know
heard a wage-earner in a support case admit that he still was earning
after the divorce papers were served.
Once in a while it does happen. A warring spouse will look out across
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
the support necessary to get her M.B.A., I usually end up believing most
rest of what such a witness says.
Is the fact that witnesses seem more honest in small claims court--where
aren't allowed--attributable to the fact that when a lawyer gets into a
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
he is still earning overtime, the judge is going to increase the support
ordered to pay. The client understands that truth equals a financial hit
decides to lie.
Is the lawyer doing something wrong? It depends on nuances too delicate
quantify. A lawyer who explains the adverse consequences of certain
only doing his or her job. A suggestion that the truth be "modified," of
is unethical behavior.
I see no evidence that people are lying in court more now than they did
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
court representing themselves should just be prepared to prove every
element of their case--and not depend on the other side to admit any
the obvious facts of the situation.
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