Systemic lying.

Author:Simon-Kerr, Julia
Position:Deception in the legal system - Abstract through I. Systemic Lying: Four Case Studies, p. 2175-2208


This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that we should know how to identify it and then try to address it once we see it happening. Accordingly, this Article presents a guide to identifying a set of symptoms that are the hallmarks of systemic lying and posits a unitary cause, although not a one-size-fits-all solution. Through a series of case studies, it shows that systemic lying emerges as a saving mechanism that mediates between culture and law. Rather than allow the law to take its course and deliver what would be perceived as unjust outcomes, participants lie and preserve the facade of a system that delivers results consonant with popular moral intuitions. Systemic lying is both persistent and powerful because it achieves a type of licitness that individual lies or underground deception lack. At the same time, it poses a unique threat to the legitimacy of the system by signifying that truth is not paramount in the courtroom.

TABLE OF CONTENTS INTRODUCTION I. SYSTEMIC LYING: FOUR CASE STUDIES A. Pious Perjury B. Fault Fictions in Pre-Reform Divorce C. Jury Nullification and the Post-Reconstruction South D. Testilying II. TOWARD A THEORY OF SYSTEMIC LYING A. Systemic Lying as a Response to Moral-Formal Conflict B. A Typology of Systemic Lying? C. Systemic Lying as Problem or Solution 1. The Truth Imperative 2. Procedural Integrity CONCLUSION INTRODUCTION

An English jury finds that the theft of a pair of pants constitutes manslaughter. A wife accuses her husband of adultery to obtain a divorce, and he goes along with it, even though they both know this is a he. A southern jury acquits a white man of violence against a black man, despite clear evidence that the man is guilty. A police officer says he saw a man holding drugs in plain view, even though the drugs were concealed and were found in a search without probable cause. What do all these cases have in common? They are all examples of "systemic lies": lies that participants in the legal system tell repeatedly, knowing they are lies and with the complicity of all participants, for what they see as a higher purpose.

This Article addresses two questions: Do these kinds of lies in the courtroom ever have efficacy? Can a legal system that relies upon truth telling for both procedural and substantive fairness tolerate systemic lying? These questions may seem surprising in the context of the American legal system, which offers the ideal of justice through two related guarantees--procedural fairness and outcome accuracy--that take truth telling by actors within the system for granted. (1) Yet, these questions deserve attention because over a long span of history, our legal system has experienced repeated bouts of what I will call "systemic lying." These episodes are not historical relics. By many accounts, lying under oath by law enforcement personnel occurs as a matter of routine and stands as a modern and ongoing example of systemic lying. (2)

This Article examines the phenomenon of systemic lying and offers a two-part answer to the questions posed above. Systemic lying in the legal system is inevitable and seemingly beneficial at times. It is inevitable because disjunctions between the law and social beliefs will arise that, when severe enough, provoke systemic lying as a way to recalibrate the system when formal change is not forthcoming. Thus, systemic lying alerts us to the existence of a strong and collective dissonance between moral beliefs and legal prescriptions. At the same time, systemic lying is not a desirable mechanism for reducing that dissonance. Although it may at times accomplish desirable ends, systemic lying is never a positive state for the legal system for two main reasons. First, it undermines the premise that truth is a means of achieving accurate and fair outcomes through law. Second, the open disregard of procedural checks intended to secure truth in the courtroom undermines the appearance of procedural fairness, which is an important key to legitimacy and obedience to the law.

Systemic lying, as I term it, has three key characteristics. First, unlike the act of one jury, one judge, one prosecutor, or one witness, it involves the cooperation of multiple actors within the system. Second, it must be done repeatedly and for a reason that is linked to the participants' conception of justice. (3) In other words, systemic lying requires that diverse actors in the system apply a particular principle that guides their deception across many cases. And finally, in a corollary of the first two requirements, systemic lying must be accepted within the system to the degree that it becomes an open secret. When these elements are met, lying may fairly be described as systemic because it takes on the characteristic of a functioning mechanism within the system rather than an inevitable byproduct of the human tendency to lie. (4) Precisely because lies are systemic, in the sense of being widespread, recurring, and told or tolerated by many participants, systemic lying in a legal system that privileges truth telling merits examination.

A subsidiary claim of this Article is that not all lying in the legal system can or should be understood to be the same. As framed here, systemic lying focuses on lies told in the courtroom or in ancillary proceedings, such as depositions, conducted under the formality of the oath. This focus tracks the dichotomy drawn in our system between the standard of truth expected in the courtroom and the standard tolerated beyond its boundaries. This Article uses the term "courtroom" metaphorically to encompass lies told under oath, whether in an actual courtroom or in some other setting in which sworn testimony or statements are given. It is the oath, not the physical space, that determines the boundary. Within the courtroom, under the force of the oath, our system unambiguously rejects material lies; outside that boundary, it is at times friendly to or tolerant of deception.

The American legal system overtly prioritizes truth in the courtroom through enforcement mechanisms such as the oath, (5) the threat of prosecution for perjury and false statement, (6) evidentiary rules allowing for the impeachment of witnesses, (7) and strong norms requiring obedience to and compliance with legal rules. (8) These formal and informal truth-enforcing devices apply not just to witnesses but to all participants in the system. Jurors swear oaths to uphold the law, (9) attorneys are bound by oaths and codes of ethics requiring truthfulness, (10) and judges and other government actors are bound by their own oaths to uphold the law. (11)

Outside the courtroom, by contrast, our legal system tolerates and sometimes welcomes deception. (12) For instance, unlike European countries, such as Germany, that prohibit lying to the accused during questioning, (13) American courts largely treat deceptive interrogation tactics as lawful as long as the defendants have been previously advised of their Miranda rights. (14) There are outer boundaries to the ability of law enforcement to use deception in interrogation, but they are fuzzy. For example, New York's highest court recently reversed a conviction based on evidence uncovered through "patently coercive" police lies. (15) Although not officially sanctioned, other forms of deception outside the courtroom have been greeted with a degree of indifference that arguably amounts to the same thing. For example, scholars have argued that the system tolerates prosecutorial deception in the form of suppressing exculpatory evidence by failing to provide a remedy for such conduct. (16)

Systemic lying would be of interest even were it the kind of behavior we would expect to be openly tolerated in the courtroom. Lying of many varieties is often socially transgressive even if not prohibited by any formal stricture, such as a legal or religious imperative. (17) Yet the practice of lying becomes far more problematic if it is formally prohibited by the very system in which it takes place. Thus, this discussion of systemic lying focuses on practices that deviate from the standard of truthfulness that our legal system purports to expect from its various participants.

Because lying is a multifaceted and complex phenomenon, the definition used here requires further clarification. There is an enormous literature, across disciplines, on the general theme of lies and truth telling and the ways in which our ideas of truth and expectations for honesty are contingent upon social and cultural context. (18) This Article employs a definition of lying that tracks the legal system's own approach to enforcing truth mandates in the courtroom. By this measure, there are multiple ways an actor may "lie" in the courtroom. The most straightforward of these is by telling a factual untruth when under oath. This tracks the definition of perjury. (19) Yet, the legal system is also concerned with exposing deceptive testimony in the courtroom. Evidentiary rules aim to uncover deception by witnesses by allowing the introduction of prior inconsistent statements, (20) as well as impeachment with convictions for crimes involving "a dishonest act or false statement." (21) Thus, this Article treats deception in court as a form of "lying" whether or not it would qualify under the formal definition of perjury. Finally, intentionally breaking the oaths that constrain...

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