Legal Archeology

The Intelligent Man's Guide
to Lying Under Oath
 

by David Kopel

Sometimes perjury serves a higher truth.

Is it ever morally permissible to mislead the government under oath? President Clinton's flagrant lies during the Paula Jones deposition and his grand-jury testimony have led his defenders to claim that it's all right to commit perjury, if the perjury is just about private matters like sex. Are they right?

Presenting misleading testimony under oath may be the moral thing to do under certain limited circumstances. At least that was the stance taken by many victims of religious persecution in England in previous centuries. The decisions they made provide important lessons for contemporary Americans.

During the late 16th century, Anglican forces won control of the English government. They made it a crime for England's small Catholic population to attend Catholic Church, required everyone to go to Church of England services, outlawed Catholic communion, and forbade the entry of any Catholic priest into England, Scotland, or Ireland. The punishment could be as severe as death by public torture.

Despite this totalitarian effort at thought control, many Catholics continued to practice their faith secretly, and the Catholic Church continued to send priests into England. The main smugglers were the Jesuits, and the government's discovery of one of their training manuals for English priests caused a sensation.

A Treatise of Equivocation instructed priests going into English territory that, even under oath, they and their flock need not condemn themselves when interrogated by the English authorities. The treatise offered four techniques of equivocation: ambiguity (answering "a priest lyeth not in my house" could mean that the priest hidden in the home did not tell lies); incomplete answers ("I went to his house for dinner," omitting that "I also went to attend a secret mass"); hidden gestures and pronoun references ("I did not see anyone go that way," while pointing the other way with one's finger hidden in a pocket); and the most sensational technique: responding to questions both verbally and mentally. According to that treatise, a Catholic could "securely in conscience" provide answers with a "secret meaning reserved in his mind."

If an English government attorney interrogated someone suspected of being a priest named Peter, the attorney might ask "Is your name Peter?" A Treatise of Equivocation instructed that the priest could speak the word "No" in response. The priest could then continue, speaking in his own mind but not out loud, "so as I am bound to utter it to you, since you have no lawful jurisdiction over me."

Likewise, if a lay person were asked, "Did you hear mass today?" she might orally answer "No," while noting to herself that she "did not hear it at St. Paul's or such like" — even though she did hear mass in her home.

In late 20th century America, it's easy to see the natural rightness of religious dissidents misleading (but in a sense, not lying to) the minions of an unjust and tyrannical government. Hardly anyone would deny the moral right of a Jew in Nazi Germany (or modern Iran) to give equivocal answers to questions from a government interrogator.

Do the equivocations of the Anglo-Catholics have any lessons for Americans nearly four centuries later? I think they do.

First of all, A Treatise of Equivocation never aimed to erase the general moral rule against untruth. Equivocation was for "very limited" circumstances, allowed only in response to government interrogators. Capitalism depends on trust, and nothing in A Treatise of Equivocation justifies any type of misleading answers to the many people with whom one voluntarily associates.

According to the treatise, a speaker must "answer directly" if the government interrogator meets five conditions:

1. He is a lawful agent of the sovereign.
2. He has personal jurisdiction over the person being questioned.
3. He limits his questions to topics over which he has legal authority.
4. He is enforcing a just law (since "a judge in the execution of an unjust law is no judge").
5. He has probable cause for his questions.

President Clinton fails every element of the five-step test: He acknowledges that Judge Starr was lawfully appointed (under a law supported by the president), that Judge Starr has legal jurisdiction over the president, and that the judge was investigating an issue which was specifically authorized by Attorney General Reno. President Clinton does not claim that the laws against sexual harassment or against perjury are unjust, and there is no dispute that the questions put to him were based on probable cause from evidence previously discovered.

One of the two cases in which A Treatise on Equivocation achieved its greatest notoriety was the "Gunpowder Plot" trial, which followed some Catholics' failed attempt on Nov. 5, 1605 (now known as Guy Fawkes Day), to blow up Parliament and King James I, following the King's refusal to relax the late Queen Elizabeth's stringent anti-Catholic laws.

The other sensational equivocation case was the 1613 prosecution of Irish Catholic grand jurors in Dublin. The grand jurors had refused to indict Catholic defendants accused of being "recusants" for failure to attend the Anglican Church. When the grand jurors took their oaths, they made mental reservations about their conscience and religion. When prosecuted for perjury, one juror insisted he made his equivocations "to defend my self against the captious and injurious demands of an unlawful judge." The Irish jurors and the gunpowder plotters were, of course, convicted, and A Treatise of Equivocation was introduced as evidence against them by the prosecution.

Today, many people called to jury service in the United States face a moral dilemma similar to that faced by the Irish grand jurors. According to a recent study by the National Law Journal, 76 percent of Americans agree that "whatever a judge says the law is, jurors should do what they believe is the right thing." Thus, if a juror feels that a person is being unjustly prosecuted for acting in self-defense, or for committing a victimless crime, the juror should vote to acquit the defendant.

As a matter of legal history, the modern American 76 percent, like their Irish predecessors, are plainly correct. The jury is intended to interpose the conscience of the community between the government and the defendant. America's first Supreme Court Justice, John Jay, and America's second president, attorney John Adams, recognized and applauded the jury's right and duty to vote its conscience.

Unfortunately, for many decades judges who are unfaithful to America's history of jury rights have been falsely telling jurors that they are mere fact-finders, and must accept unequivocally the judge's instructions about the law. As the Fully Informed Jury Association continues to spread the word about jurors' rights, many judges are working harder than ever to exclude informed jurors from hearing cases. During the voir dire process, some judges demand that potential jurors disclose whether they have ever read anything about jurors' rights; any potential juror who does know his rights is automatically "excused."

The state of Colorado recently witnessed a type of prosecution not seen in the United States since 1776. Juror Laura Kriho was criminally prosecuted because she allegedly voted to acquit a drug defendant based on her conscience. (Technically, she was prosecuted because she did not, during voir dire, tell the judge about her own prior drug conviction, which had been expunged from her record. She says she didn't disclose it because no one asked. The real reason for her prosecution was that after she hung the jury, one of her fellow jurors complained to the prosecutor that she had compared drug laws to witch hunts.)

Given the data from the National Law Journal, it appears that many jurors equivocate during voir dire. Asked if they know about jurors' rights, they answer "No," and mentally add "I know of no jurors' rights contrary to the Constitution." Asked if they will rigidly follow the judge's instructions on the law, they answer "Yes," and mentally add, "insofar as your instructions are consistent with my rights and duties as a juror."

In contrast to President Clinton, potential jurors who intend to vote their consciences clearly pass the test of A Treatise of Equivocation. There is a great moral difference between lying in a civil rights case involving the liar's abuse of governmental power, and equivocating as part of jury service in order to protect someone from abuse of governmental power.