Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

May a Witness Ethically Lie in Court?

Legal education rarely if ever explores the use of general moral values, norms, and reasoning in the practice of law. Yet it’s indubitable that in practice law and morality at times conflict, and with justice as the goal, the two must be reconciled.

Attorneys rarely consider moral values, norms, and reasoning as legitimate resources that can be used in argument. A legal education is a narrow education.

At first glance, the legal mind answers “no” to the question posed in the title because, is it not self-evident that in a court of law, the law always trumps morality? After all, before testifying the prospective witness swears that the evidence to be given “shall be the whole truth, and nothing but the truth. So help you God.”1 And while the statute defining perjury specifies five defenses that are not available, it is silent on any defense that may be available.2 Where a judge actually discovers some alleged perjury uttered by a witness during a proceeding, she even has the authority to immediately commit the offender to jail!3 Is it not obviously certain that the law’s prohibition against perjury constitutes an absolute legal norm?

Not so! states Richard Baron, a philosopher residing in London. In a significant new book, Projects & Values – An Ethic for Today (Authors OnLine, 2006),4 Baron presents a profound question of the conflict between morality and law in a simple example:

If for example someone was a witness in a court case and he could only answer a lawyer’s question by betraying a friend’s confidence, then a rule that we should respect the confidences of our friends would clash with a rule that we should tell the truth in a court of law. One way to resolve the conflict would be to consider the underlying guiding concepts, in this case the concepts of friendship and of honesty, and to see whether one had greater force than the other. If the witness decided that friendship had greater force except in the most extreme circumstances, then he would respect the confidence and not give a truthful answer to the lawyer’s question.5

Suppose now that the trial judge discovers some alleged perjury, immediately commits the witness to jail, and instructs the county attorney to consider bringing an appropriate charge. Suppose further, that you are appointed to defend the witness, who in due course informs you of his underlying ethic and the moral reasoning that led to his decision to lie in court. Given that the law always trumps morality and that the legal prohibition against perjury constitutes an absolute legal norm, what on earth can you do for the client? Are you qualified to engage in effective moral reasoning and argument?

You rush to the prosecutor’s office, because you know that a not uncommon practice in the administration of law and morality is to plead for a rule departure:

Rule Departures: A practice distinct from, but related to, civil disobedience is rule departure on the part of authorities. Rule departure is essentially the deliberate decision by an official, for conscientious reasons, not to discharge the duties of her office (Feinberg, 1979). It may involve a decision by police not to arrest offenders or a decision by prosecutors not to proceed to trial, or a decision by a jury or by a judge to acquit an obviously guilty person. Whether these conscientious acts actually contravene the general duties of the office is debatable. If an official’s breach of a specific duty is more in keeping with the spirit and overall aims of the office than a painstaking respect for the particular duties is, then the former might be said to adhere better than the latter does to the demands of the office (Greenawalt, 1987, 281).6

Eloquently describing your client’s underlying ethic and his moral reasoning, and citing numerous conscientious reasons, you beg the prosecutor to decline prosecution. But, alas, your plea falls upon deaf ears and a heart of stone. “The charge will issue, your client will be convicted, and he is going to jail”, thunders the prosecutor!

So next you move for summary judgment, confident that the judicial mind will be more receptive to the client’s underlying ethic and moral reasoning, the conscientious reasons, and the legitimate practice of rule departure. Again, your plea falls, and “Motion Denied” reads the brief court order, so now you must go to trial. Now what can you do?

First, you pause and curse the lawyer who asked the question that your client could not truthfully answer, and then you start your trial preparation. Fortunately, your client is a believer and his underlying ethic is a religious ethic, so the Minnesota Constitution is an available legal resource upon which you can construct a legitimate moral defense:

The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries.7

You focus upon “nor shall any control of or interference with the rights of conscience be permitted.” Sounds good! Let’s blame that damnable lawyer! That cursed lawyer is an officer of the court, and asking the question that the client could not truthfully answer constitutes state action, so the question violated the client’s right to religious freedom.

Let’s let the court decide whether the client’s belief is sincerely held, whether the state action burdens the free exercise of religious beliefs, whether the state interest is overriding or compelling, and whether the state used the least restrictive means.8 Having received all of the evidence and arguments, surely the judicial mind will now see the truth. But even when the verdict is “Guilty,” all is not lost; you still have hope because you have the sentencing hearing to save the client through moral argument.9

A legal education is a narrow education. Mine contained no formal instruction, and little discussion, on the use of general moral values, norms, and reasoning in the practice of law. Nor do I ever recall any such instruction, not even a digression, in a CLE course. Thus, the realm of morality requires independent study and a worthy beginning is with Richard Baron’s little book.

1 Minn. Stat. 358.07 (7).

2 Minn. Stat. 609.48.

3 Minn. Stat. 595.08. .

Projects & Values – An Ethic for Today, pp. 19-20.

6 Brownlee, Kimberley, “Civil Disobedience”, The Stanford Encyclopedia of Philosophy (Spring 2007 Edition), Edward N. Zalta (ed.), .

7 Minnesota Constitution, Art. I, Sec. 16.

Shagalow v. State Dept. of Human Services, 725 N.W.2d 380 (Minn. App. 2006).

9 I was once appointed to represent a naïve young man who was charged, along with an accomplice (a burglar on parole), with aggravated assault, a charge which then carried a mandatory three-year prison sentence. They burglarized a lake cabin, took guns, and then drew upon the owner who unexpectedly appeared on the scene. Before the Hon. Donald Odden, a lion on the bench, (whose beloved lake cabin, incidentally, had been burglarized in the past), I argued for a rule departure, simply that it would be immoral and contrary to justice, to send my client to prison: He was retarded. He worked as a part-time garbage man. He was a dupe. Then the prosecutor, John DeSanto, told Odden to do what he thought “was right.” Odden then growled at the client, threatened prison if he screwed up, and placed him on probation.

THOMAS J. BIETER is an attorney resident in St. Paul. He formerly practiced in Duluth as a prosecutor, public defender, and private practitioner and taught college courses there in the philosophy of law, ethics and morality.

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