Criminal Lying, Prosecutorial Power, and Social Meaning

09 Feb 2010 08:31pm Lisa Kern Griffin 

This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It offers a conceptual framework for violations of 18 U.S.C. § 1001 and related false statement charges by drawing distinctions between harmful deception and the typical investigative interaction and describing the range of lies that fall within the wide margins of the offense. It then places the occurrence of these cases in a socio-legal context, suggesting that some false statement charges function as penalties for defendants' refusal to expedite investigations into their own wrongdoing. In those cases, the government sees itself as the victim of the lying offense and uses the charges to assert authority. Enforcement decisions in marginal criminal lying cases are driven by efficiency rather than accuracy goals, and that may produce unintended expressive consequences. Using false statement charges as pretexts for other harms can diminish transparency and mute signals to comply. Accountability also suffers when prosecutors can effectively create offenses, and when it is the interaction with the government itself rather than conduct with freestanding illegality that forms the core violation. And significant credibility costs and potential backfire effects may arise from the disjunction between prosecutions and social norms about defensive dishonesty. Animating the materiality requirement in the statute with the harm principle could mitigate these distortions. An inquiry into the objective impact of a false statement might account for the nature of the underlying conduct under investigation, whether the questioning at issue is pretextual, whether the lie is induced, and whether the deception succeeds or could succeed in harming the investigation. By taking materiality seriously, courts could both restrain prosecutorial discretion and narrow application of the statute to cases that harmonize with social norms.

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