Academic journal article William and Mary Law Review

Systemic Lying

Academic journal article William and Mary Law Review

Systemic Lying

Article excerpt

ABSTRACT

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. …

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