Legal Puzzle:
Bob commits crime X, which has a statute of limitations of five years. Twenty years later — fifteen years after the statute of limitations has passed — a police officer finds out about the details of Bob's crime.
The officer realizes that Bob cannot be punished for the crime because the statute of limitations has long passed. The officer decides to visit Bob at his home anyway to ask Bob about the crime twenty years earlier. The officer tells Bob what he knows about what Bob did and asks Bob if it is true that he did it. Bob lies and says he didn't do it. Bob is then charged with intentionally lying to a police officer, which in our hypothetical jurisdiction is a felony. The government's proof: twenty earlier, Bob did in fact commit crime X.
Question: Is it constitutional for Bob to be charged and punished for lying to the officer about the crime he committed 20 years earlier?
The officer realizes that Bob cannot be punished for the crime because the statute of limitations has long passed. The officer decides to visit Bob at his home anyway to ask Bob about the crime twenty years earlier. The officer tells Bob what he knows about what Bob did and asks Bob if it is true that he did it. Bob lies and says he didn't do it. Bob is then charged with intentionally lying to a police officer, which in our hypothetical jurisdiction is a felony. The government's proof: twenty earlier, Bob did in fact commit crime X.
Question: Is it constitutional for Bob to be charged and punished for lying to the officer about the crime he committed 20 years earlier?
Doesn't a statute of limitations only mean that you can't be punished for the underlying crime? Couldn't you always prove a crime using some non-illegal action of the defendant's, like that he violated a law in a foreign country, or that he violated a law that was unconstitutional, or that he did any sort of innocuous activity?
As for the constitutional angle, I don't see any ex post facto law here, because nothing made anything illegal after it was done; would it be just some generalized due process grievance, or am I missing the relevant constitutional provision?
How it would be proven, however, is beyond my ability to imagine.
The first poster is probably correct that the real issue is whether the officer had any cause to pursue the matter knowing that there is no underlying crime. An officer can't just show up at your house, knowing some trivially embarrasing but non crimimal fact about your past, ask you about it, have you deny it, and then take you in for lying to the police. If they could, that would be awesome: I'd totally become a police officer and just go house to house arresting people because I dug up evidence of them having wet the bed when they were 12.
Consider 18 USC 1001(a):
"(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both."
The matter in question does not have to be a criminal investigation, and you certainly do not need to bring a case. So, for example, this statute would apply to a rule-making proceeding, or a civil investigation which ended with the conclusion that no action was warranted, or so on.
Of course, George is right about materiality. But I don't see why investigating crimes even when no charges could be brought is outside the scope of proper police activities. For example, suppose we are talking about a murder (and forget for a second the likelihood there would be no SOL for murder). Being able to tell the victim's family what actually happened would seem like a proper police goal, even if the perpetrator could never be punished.
This would put quite a damper on an accused's ability to proclaim his innocence.
If you take the "arrest him anyway" tack, then the officer should be able to arrest anyone, at any time, for lying to him, even if the thing they lied about has no bearing on a crime at all.
Of course, to prove the guy lied to the officer, you'd have to prove that he committed the crime to begin with (to really prove he was lying as opposed to hearsay), which means a trial for the first crime, which would be against the statute of limitations...
Seems like anyone but the dimmest attorney should be able to show that the "new" crime was merely a disguised prosecution for a crime that had run out the statute of limitations.
This ranks right up there with that bit about arresting someone for wiretapping when they videotaped an officer out in public during an arrest.
(On the other hand, we had a spate of officers, when someone was not doing any crimes they could actually prosecute them for, asking "what are you some kinda lawyer or something?" If the answer was anything but "no," they arrested him for pretending he was an attorney...)
How is a crime for which the statute of limitation has expired a "matter within the jurisdiction of" any branch of government?
If the same is true for lying to investigators as it is for perjury (and I don't knwo that it is), wouldn't the person who lied to investigators about committing Crime X be punished as if he committed Crime X, even though the statute of limitations had expired?
The answer to the puzzle depends on whether there is a materiality qualifier in the statute criminalizing lying -- one presumes there would be -- and if so whether the qualifier should be read to deem misstatments about time-barred crimes immaterial. The upshot is that it's not possible to resolve the puzzle on the basis of the information provided.
There is a principle called the "rule of lenity" that holds that ambiguities in statutes criminalizing particular conduct should be resolved in favor of defendants, which would suggest that Bob goes free. However, my sense is that the rule of lenity is rarely taken seriously these days.
In your citation to 18 USC 1001(a) by what logic do you believe the lie is material?
Given the imprecision of Orin's questions, I can only wonder that he has some surprise for us.
e.g., the question would be more clearly put, "If bob swore his innocence under penalty of perjury..."
I would say that there is a greater Fifth Amendment self-incrimination problem here than any ex post facto concerns, but even then the problem seems pretty minimal. I am no expert but I assume that Bob cannot be coerced into confessing even if the statute of limitations has passed. but while the officer didn't read Bob his Miranda rights,
Bob wasn't in custody, so no Miranda warning was required.
Hayek: SCOTUS has rejected the "exculpatory no" defense to 18 USC 1001. See Brogan (1998).
a man committed a crime and got away with it. the sol has passed. a policeman digs up the old file and find evidence suggesting the man did it. he's curious to know more and the man agrees or is forced to discuss it.
as he could simply claim he remembered nothing, he must have agreed. he lies about a concrete fact, that the officer can prove.
at trial he will surely claim his memory played him false. how could he be convicted on an event that happened so long ago? well, if the prosecutor could convince a jury that he deliberately lied, then he is guilty of a new crime. the new crime is mainly a question of fact.
like scooter, the jury could disbelieve him and convict him of a new crime, but he would have to be exceedingly stupid.
however, bad thing have been known to happen to stupid people.
The question of whether one has "committed the crime" remains legally distinct whether one has performed certain underlying acts even under Hayek, since crime is a question of law as well as fact. The question the police officer asked is whether he committed the crime. And he can truthfully answer that, as he is legally innocent, he has committed no crime at all.
he has lied.
is this a crime.
he would have to be exceedingly stupid to get caught in it.
I answer the question simply: No, law enforcement should not be able to use the perjury/obstruction statutes as a method of punishing those otherwise beyond the reach of the law. Law enforcement must have a legitimate reason for questioning someone -- a reason much weightier than mere curiosity -- before I'm willing to permit liability for perjury to attach to an interview. Otherwise, we are granting prosecutors and police too much power to settle scores, private and public. I realize that it may be difficult to determine whether law enforcement has a legitimate reason for conducting an interview. It may be difficult to know whether an officer had probable cause for a traffic stop, but that doesn't prevent us from making probable cause a threshold requirement before the exercise of police power.
he has lied to a police officer.
is this a crime?
again, he would have to be exceedingly stupid, OJ stupid, to keep talking about it.
the FIRST amendment...
if there is a law that makes it illegal to 'lie to the police' or some such thing....then it is a law..that ecurtails SPEACH...is it not?
generally..such a law would be fine under the 1st amendments becuase laws that make lying to the police fall under 1 or more of the excetions to the specch part of the 1st amendmeent (nessesary and proper to eestablish certian limits on speech etc...)
but here...the police would be hard pressed to argue that a law is 'nessesary and proper" that prohibits lying..when the result of the lie couldnt possibly lead to any real law enforcement activity (since the statute of militations has been passed)
you are not correct as to the state of the law, although i agree that should be the law.
What do you think martha stewart was convicted of?
Lying to Federal Investigators. Lying to an FBI agent is a felony.
He can say whatever he wants, and the government (assuming the police officer is acting as a government agent) cannot infringe on the right unless one of the exceptions is triggered. In this case, the officer is seeking information about a crime that can no longer be prosecuted, so obstruction of justice cannot be the charge.
OK posits a statute that criminalizes intentionally lying to an officer, but unless the government can show that such infringement upon Bob's free speech rights is necessary and as unintrusive as possible while still furthering a legitimate aim of the state (I'm not sure exactly what the legal standard is here -- not my area), then the law should be found unconstitutional.
Another issue, it seems to me, is that the police officer may not have been acting in an official capacity when questioning Bob, making the entire question moot. If the crime is unprosecutable, then the police officer could not have been officially investigating, and thus when Bob lied he was actually lying to just another citizen.
That's my take anyway. Like I said, not my area.
On a serious note, I recently finished briefing a case where the prosecutors, unable to make out a murder case against the defendant, based a perjury case against him after this colloquy occurred under oath:
"You killed her, didn't you?"
"No."
I kid you not. Their theory is that he lied when he denied murdering her. Yet they could not prove he murdered her. (Indeed, the murder charge against him was dismissed after a probable cause hearing.) So how could prosecutors establish probable cause that the defendant committed perjury? They couldn't, according to the trial court; so the case is on appeal.
Another hypo: Is it constitutional to charge a defendant with perjury when the sole basis for the perjury charge stems from conduct that the government was unable to prove beyond a reasonable doubt? For example, would the following conviction be constitutional:
X is acquitted of murder. During his murder trial, X testifies that he did not murder the decedent. X is indicted for perjury under the theory that he lied under oath about murdering the deceased.
How can you prove he perjured himself? You'd have to show that statement was false beyond a reasonable doubt. This would imply the government had to prove a "case within a case," i.e., the government would first need to prove the defendant murdered the deceased before a jury could conclude that the defendant lied when he denied murdering the deceased. Still, the government would not technically be charging the defendant with murder. Instead, prosecutors charged him with lying about committing the murder.
I want to say that there is a line of RICO cases holding that acquitted-of conduct can nonetheless be charged as predicate acts in a subsequent RICO prosecution. Assuming my memory is accurate, then the perjury prosecution I noted, above, would be constitutional.
In any event, my serious answer to your hypo is, yes, the prosecution of X would be constitutional.
the cases of martha stewart and libby are distingiuhable on the facts in reagard to first amendment issues.
both martha and libby may have only been convicted of lying and not any underlying offense..but their lies hamperd an investigation that was ongoing into a real offense...so convicting them for the lie would pass muster under 4th amendment B/C there was the perjury law..as aplied to them...has is a nessesary and proper limitation on speeach.
bob is diffrent..there is no invetigation..just a cop with a vinwdetta whos hamped by a statue...the speech should be protected.
MikeC&F: in your hypo about the defendent who is charged with lying during his trial after being 'not guilty' of the murder itself...he would be protected by res judicai in criminal case for lying...the court would have to accerpt as a fact (for purposes of criminal law) that there is reasonable doubt that he didnt do it..and de factoo rtesonable doubt that hes not lying.
oren' hypo makes the point much clearer
Might be a statutory question as to what is forbidden and whether he did it. For example, 18 USC 1001 forbids covering up a "material" fact. Material to what? I'd think it arguable that it means "material to some real investigation," which a look-see into an offense whose statute passed a decade ago is not.
The Alger Hiss case is pretty close. A witness tells Congress that Hiss was a CP member. Hiss denies being a CP member and insists on going before Congress to deny it under oath. The statute having run on any other offenses Hiss committed, Nixon is delighted as Hiss is charged with perjury and convicted after a second trial. The question was material because Congress, of course, always has the authority to investigate ways to deal with internal subversion, etc.
close..but no sigar on the contituional first amendment iussue:
congress' intrest may well pass aas nessesary and proper there (national security internal subvertion etc)
not so in the simple case of our hypo with crime X (depneding..of coursze...on the nature of the crime)
X is acquitted of murder. During his murder trial, X testifies that he did not murder the decedent. X is indicted for perjury under the theory that he lied under oath about murdering the deceased.
Would not collateral estoppel principles bar the prosecution from trying the perjury case since it would have to prove that he was in fact guilty of the murder in the face of a jury verdict and ensuing judgment that he was not guilty of that murder?
Peter Young:
close..but no sigar on the contituional first amendment iussue:
congress' intrest may well pass aas nessesary and proper there (national security internal subvertion etc)
not so in the simple case of our hypo with crime X (depneding..of coursze...on the nature of the crime)
George, are you mixing up threads, or what? I didn't make any first amendment argument in this thread although I rather like the idea of a first amendment right to lie when the police ask questions they have no business asking.
I thought about that before I posted, but didn't look it up or know the answer to it. I'm not sure what the answer is. Do you?
Collateral estoppel does apply in criminal cases against the govt., so I believe you are correct.
However, that is assuming that the question which forms the basis of the perjury charge is something along the lines of "Did you kill the victim?" There are many other factual questions that the accused might lie about -- where were you at a particular time, did you buy a gun, did you have an argument with the victim -- which would not necessarily have been decided when the jury acquitted the defendant of murder. (For collateral estoppel to apply, the issue must have necessarily been decided.) Depending on the facts, it could very well be true, for example, that X is not guilty of murder but still lied about some underlying facts at the murder trial.
If you've done something bad, NEVER talk to the police.
THE THEORY IS MORE INTERESTING. Purely from logic, the 'Constitutional' question is unanswerable, because of the SOL. No matter how a case is framed on this matter, one can readily, and correctly argue that conviction on the second charge can succeed if and only if there is conviction on the first charge. Because of the SOL, no trial, of any type, can be predicated in whole or in part, upon the first charge.
HOWEVER, if you want to get 'high-falutin' in your reasoning, one may argue that that although the case defies formal logic, and could not be justified on moral and ethical grounds (because here they would be influenced by the formal logic), it is, in a very abstract sense Constitutional. There is nothing in the Constitution that seems to clearly forbid laying the second charge.
If a police officer knocks on his door and asks then the criminal should be able to lie without fear of prosecution. If the criminal is for example a witness in court on some other case and he lies then, it would be a punishable crime.
Meanwhile, I'm stuck, in this hypo, on how you can prove (in court) that the guy lied, if all he said were things pertaining to a crime you can't bring charges on in court -- wouldn't a sensible attorney bring this up and move to suppress testimony (in the lying trial) on the facts of the un-chargeable-offense? I mean, they suppress testimony about stuff people were actually convicted of on a fairly routine basis; juvenile convictions are generally (in my area, anyway) set up so that your first conviction is a "freebie," and can only be brought up in the sentencing hearing for a second trial (and even then, only if you're unfortunate enough to get convicted a second time before your eighteenth birthday.)
Suppose you're pulled over by an officer for doing 70 MPH in a 55 zone, and when the officer asks if you have a reason, you give some cock & bull story. I would imagine that this is a pretty common occurrence in the real world :)
If for some unrelated reason the lie becomes later exposed, would you likewise be liable for feloniously lying to an officer when the underlying offense was only a piddly moving violation misdemeanor? If so there are millions of unconvicted felons out there!
I understand they take notes by hand. No tape, in other words.
So you can tell them the truth. When in court, you tell the truth again, in the same words. But if the FBI guy can't read his own handwriting, or missed something, you are a liar.
Is this true?
Something of the sort happened in the Libby case. An FBI agent's notes did not support her testimony, so she had to retestify. That's better than getting nailed for perjury, I suppose.
What should husband do:
Take the 5th, and be banished to the sofa indefinitely.
Respond truthfully, and be banished to the sofa indefinitely.
Lie, and risk prosecution for lying to a police officer
The materiality distinction shouldn't matter, there's no materiality condition on passing laws against lying, some of which have strict liability, and the police needs to close cold cases should suffice for materiality.
I don't see any problematic argument.
The general rule is that bad character evidence (e.g. past crimes) isn't admissible against an accused. This is because it has no probative value. That the accused is a bad person doesn't help prove he committed the particular crime he's charged with. Also, it is highly prejudicial, because the jury is likely to misuse it.
In this case, the evidence of the past crime is probative, because it is intended to show the accused was lying. So it would probably be admissible for that purpose.
Evidence of a past crime which was merely intended to show the accused had lied in the past, or was likely lying in court now, most likely would not be admissible.
Just to make sure my previous post didn't give the impression that evidence an accused was lying was always probative.
The reason I ask is that an officer related to me this "general outlook", for lack of a better term, on why it is helpful for residents to call in what they feel are suspicious activities in the neighborhood. He said if he is driving down the street and he sees, say a person sitting in a vehicle or someone walking down the street, he can't just decide to stop and ask things like "What are you doing here?" But if someone calls to say that a person in a vehicle or pedestrian looks suspicous, he can come and ask them "What are you doing here?"
I see a parallel here, at least, in that the policeman has no authority to come and ask the question. Isn't he then not on official business and, therefore, not a police officer? If so, wouldn't that lead to dismissing it via some legal reasoning?
As an exit question, did someone already answer that in legal mumbo-jumbo that went over my head?
The trick in this puzzle is the difficulty in legitimizing the question. If the officer has no legitimate investigatory interest in the question, then the suspect can lie away.
It seems in this case, where there's no legitimate interest in the question, a First Amendment claim can challenge the rationality of the unlimited restriction.
There's no Fifth Amendment claim -- the suspect cannot incriminate himself in light of the SOL.
Brogan v. U.S., 522 U.S. 398, 118 S.Ct. 805, U.S.N.Y.,1998.
(January 26, 1998).
Contra Kiroc's claim, any answer now has the possibility of being self incriminating, so the citizen now has a legitimate cause to refuse all cooperation.
And if it's impossible for the police to work in such an environment, perhaps the 'crime' of lying to a police officer should be rethought.
And doesn't anyone find some of the hypotheticals (e.g., MikeC&F's post of 6.21.2007 7:43pm) more than a little reminiscent of Article 70 of the old Soviet Criminal Code? That was the bit that made it illegal to defame the Soviet state -- it was (among other things) used to prosecute dissidents for the act of pleading innocent in court.
The charges "reminiscent . . . of the old Soviet Criminal Code" were not hypothetical. According to MikeC&F (6.21.2007, 7:43pm), those were charges actually brought in our republic, which the prosecutors are taking seriously enough to bring up on appeal.
So, compare to the Soviets if you will, and remember (irony intended) that if it walks like a duck, and quacks like a duck, then it just may be a duck.
For example, suppose an expensive bike of mine was stolen 20 years ago, when I was ****hypothetically*** 15 (don't want to lie, here, in case the police are reading this). Suppose I found the bike 2 weeks later in the house of someone I considered a friend, broken beyond repair. Suppose I confronted him, and he confessed he'd stolen the bike and had been afraid to tell me because he'd crashed it. And over time I forgave him for stealing the bike.
Now, suppose police now suspect *me* of a crime, but don't really have evidence. In investigating the crime, somehow they come upon my forgiven friend and hear his sad story. So then come to my house and ask if I had a bike stolen 20 years ago by my friend, Mr. X? Not seeing the trap, or even the point, and not wanting my friend to suffer for something for which I'd already forgiven him, I say, "No."
Now *I've* committed a crime?
How is it within the jurisdiction of the police to be investigating a crime that is beyond the statute of limitations?
Isn't a statute of limitations a law passed explicitly to put various crimes BEYOND the jurisdiction of the police?
What "Congress shall make no law" are you thinking of? Freedom of speech?
Imagine the situation where there has been a bank robbery someone has witnessed. The suspects speed off in a blue Chevy, headed north on Main Street. A police officer rushes up and asks, "They left in a blue Chevy, headed north on Main Street, right?"
And the witness knowingly lies by saying, "No, it was a white Ford, not a blue Chevy...and they were headed South on Main Street, not north."
Do you really want the police officer to have to whip out his or her Bible, and say, "Do you solemnly swear that the eyewitness testimony you are about to give is the truth, the whole truth, and nothing but the truth?" (And then get the response, "I'm not a Christian...I don't want to swear on a Bible!" ;-))
All immigrants applying to become citizens must fill out form N-400. One of the questions on the form is "Have you ever committed a crime for which you have not been arrested or charged?" (No joke).
In this case though, there is a reason to the apparent insanity. If you, like just about everyone mark "No", but are later discovered to have done so falsely, the government can revoke your US citizenship since it was premised on a lie. This is true regardless of the original crime, statute of limitations etc.
I am sure there are other examples.
Because no conviction can result for the original crime regardless of the depth of investigation, then the officer can not be said to be on official business during the 20 years late questioning.
Hence there is no more criminal matter than the officer socially approaching the man on the street and asking him the time of day, whereupon the man knowingly replies an hour off the real time.
Yours, TDP, ml, msl, &pfpp
Ask Libby.
So, is obstruction of justice applicable only if there was in fact a crime? I'd say no — preventing the police from making the determination that an incident was NOT a crime would still be interfering with justice, I think.
Here, though, the determination has already been made that the incident is no longer a crime - the statute of limitations has run out. Therefore, there's no justice to obstruct.
However, as a matter of policy these laws are terrible. They lead to the conclusion that whether one is innocent or guilty, one should never voluntarily talk to the police or investigators, that one should speak only when required to under a grant of immunity, and that even then one should answer "I don't remember" anytime you don't have a clear memory backed up by documentation. Won't it be nice when police investigations can get no answers except from criminals who imagine they can lie their way out of trouble?
the answer is no.
Pesky thing, that trial by jury. Their verdict usually governs, even if you continue to disagree with it! It just doesn't seem fair.
Whether this is a "material" falsehood...or as some have called it a "lawful investigation", is not clear. But what if the officer was trying to restitute the victim of this crime? That would render the investigation "material", "legitimate", "lawful" ...pick your term.
I have not fully analysed the potential 404 problems, but those to one side, he is chargeable and convictable.
Although people are treating them like settled law, I believe they are overreaching.
If I get pulled over for speeding, cop routinely asks "Do you know how fast you were going?" Invariably the answer is No Officer. Have I now committed a possible felony? Because not only do I know how fast I was going, I had my cruise control set.
I believe that SCOTUS was dead wrong in the Brogan case. I believe for 5th Amendment rights to mean anything, you have to be able to deny involvement, even when you are guilty. I don't believe you have the right to fabcricate evidence to hide your guilt, but you should be able to say No.
Otherwise what happens? Innocent people say "I wasn't involved" and Guilty people can't say anything. Thereby providing probably cause for the Police to further their investigation.
One poster mentioned that police have a "duty" to close old cases. My question is, a duty to who? The police officer in the example was on a fishing expedition. If I was the defense attorney, I would try for an entrapment defense.
iow, i agree with storm.
if there is NO PROSECUTABLE (or suspected to be more precise) crime, and no "legitimate investigation", then there cannot be obstruction and/or providing a "false material statement" TO an investigation. if i contact somebody in a "social contact" (ie no reasonable suspicion or probable cause) and he lies to me about his name, i CANNOT arrest him for that. if i have a terry, traffic stop, etc. and he lies to me about his name, it IS a chargeable offense. the difference is that in one case i am on an investigation, in the other case, i am merely having a conversation, even though in uniform.
again, i don't know what the constitutional aspects are, but it seems a bit weird to be able to prosecute the guy for giving a false material statement when the officer KNOWS it is not an official investigation, and is just having a conversation, so to speak.
as to prufrock's comments, officers investigate CRIMES (or civil infractions) and this is not a crime, so i don't see where 'restituting" a "VICTIM", when by legal definition there IS no victim, since the crime is no longer prosecutable, seems a stretch.
it's one thing to investigate a crime that later turns out not to have happened (or be prosecutable) a la scooter vs. an officer "investigating" a KNOWN non-crime like this case.
As a not-too-farfetched example of where it might come up--consider an investigation of someone else for a crime that is not barred by the statute (murder for instance), and Bob's crime of X is relevant to the background. E.g., on the day in question, before the murder, Bob and the killer were involved together in an armed robbery, where Bob saw the killer was using a certain type of firearm that was later used in the murder.
In that case there seems both to be a reasonable basis for the cop to inquire about crime X, as well as an acutal harm coming about due to Bob's lie about crime X.
So, while not the exact answer to the hypo, the practical answer is NEVER SAY ANYTHING TO THE POLICE, and, any prosecutor who took up the charges in the hypo gets sanctioned and, hopefully, disbarred.
I'll be returning to Utopia now. Anyone want to come along?
First, the SoL doesn't mean that no crime was committed, it is just a defense. Just like double jeopardy, it just is a defense that defendant can raise which (if correct) means that the case must be dismissed and the prosecutor cannot pursue it. It just means that the person cannot be convicted, not that it didn't happen or wasn't illegal when it did. And it doesn't mean that the police have to forget all about the crime and stop looking at it (though, as a matter of efficient use of resources they probably do close most of these cases when the SoL runs). And it certainly doesn't mean that now all evidence relating to Bob committing that crime is somehow inadmissible in any other case (though there are few instances when that evidence would be relevant).
Second, and related to my last point above, the fact that X occurred is an element of the lying to the police officer offense and can be proved with any admissible evidence on that point. Introducing a conviction that Bob did X is not the only way to prove that Bob did X. You can have witnesses, admissions Bob made to other people, physical evidence, and so forth.
So, given the facts, Bob did X. Bob told a police officer, who for the sake of argument was investigating at an open case in his capacity as a police officer, that he did not do X. Generally, it seems that the government has a legitimate interest in solving crimes and closing cases, even if they can never successfully prosecute them. It certainly seems to fit within the exceptions to free speech.
no, it's not. if innocent - tell the truth. i have had SCORES OF CASES where innocent people were able to explain their innocence and avoid arrest, charging and/or conviction. i had one brandishing case where i took the guy to the station, for instance, and he offered a very good statement of self defense that the prosecutor considered in not charging him. i didn't even book him, just drove him home. cause he offered a valid defense that was reasonable.
there is also something to be said about confessing if you are guilty - clears the conscience, sometimes gets lenience (very frequently from officers), etc. of course if you have no conscience, the above does not apply :l
and a rilly smart prepared guy can use a good lie to cast suspicions elsewhere. this is a tiny percentage of criminals *(that we catch) cause most criminals that the cops CATCH are usually not so bright.
this is "dumb defense attorney advice" imo. the cops are not "out to get you". the cops want to GET the guilty and AVOID the innocent. it is more important to help the innocent than it is to convict the guilty.
example. you are walking down the street covered in blood. cops stops you. "why are u covered in blood". you answer: i just slaughtered a deer in my back yard. cops walks over to the back yard and sees - a freshly slaughtered deer.
:)
true story.
except it's NOT an open case. if the case is not prosecutable, due to statute of limitations in this example, then it's NOT an open case. it's a CLOSED case. the closure would be due to "exceptional clearance" in this example (suspect dies, victim refuses prosecution, etc.)
cops don't investigate STUFF. they investigate CRIMES (and civil infractions). if the cop wanted to have a conversation about this incident, he could. but it is not an 'official investigation' since cops don't investigate incidents they KNOW are not prosecutable, in any official capacity. it is not a criminal investigation.
This doesn't strike me as a close question.
The police will not necessarily stop looking or ignore leads just because the SOL has run.
for PRIVATE investigators to handle
What if, especially as tech advances, the evidence is no longer stale? Should not then SOL be tossed?
I certainly agree that eyewitness testimony is subject to staleness...heck it is even stale immediately after the eye witnessed. But in this age of digital recording and other forseeable tech advances it seems that certain evidence might not be subject to SOL.
but i think there's more to it than that. y'know the whole "justice delayed is justice denied" thang?
No matter how nice and friendly they are the police, federal and state investigators, prosecutors, are NOT your friends.
As for those who want to insert a materiality or "legitate law enforcement activity," clause, I can think of a lot of reasons the police would ask questions about a crime for which the SOL has passed (What if the cop was investigating a string of similar crimes for which the SOL hadn't passed?).
Also, for those that say the suspect is "stupid" for lying about a crime for which he can't be prosecuted: what are the chances the average person knows the SOLs for various offenses? If a cop asked me about a kegger I had when I was 20, I wouldn't know if the SOL had lapsed or not. I guess I'd know that I could refuse to talk, but many probably don't, or feel that refusing will be more problematic than lying.
First, I would need to see the exact law that limits police investigations only to prosecutable crimes. I will readily believe that cops as a matter of policy only spend their resources on prosecutable crimes, but I need more than an assertion to believe this is a legal mandate.
Second, there are plenty of reasons other than prosecuting the actual crime X that a cop may be legitimately investigating who did X. What if there were several similar crimes or related crimes, and only X was outside the SoL, either because the others took place later than X or were more serious and hence had a longer SoL? X was stealing a gun, and that gun was later used in a murder. X was breaking into a store in a particular manner, and that same manner was used in a later break in. X beating up a particular guy and that same guy was beat up annually for the following 10 years. Or whatever.
One of these quasi-cops could investigate an incident past the SOL for charging it as a crime, in order to fulfil their non-law-enforcement responsibilities of gathering public-safety data. Say, for instance, Bob's crime was an especially ingenious arson or poisoning caper (or both!). The relevant agencies might continue to research it for years, hoping to learn how to prevent similar incidents. If the Coroner and Fire Marshal are included in the state's false-report statute, then Bob could indeed be prosecuted for lying to them, even though he cannot be prosecuted for the original crime.
JSM
This of course simply underscores why, when dealing with the government, there are only two options: 1) silence, 2) complete truthfulness. Personally I prefer #1 unless #2 be lawfully compelled or to my advantage (and even then, only with benefit of counsel).
The investigation is capricious, probably malicious, and thus barred. If the investigation is barred, there can be no legal penalty for lying about 20 year old events no matter their legal status.
Well, it depends on the statute. Under the hypothetical statute Prof. Kerr cites, "intentionally lying to a police officer, which in our hypothetical jurisdiction is a felony," it would be. Under a different statute with, e.g., a materiality requirement, it probably would not be. All of the comments dealing with the First Amendment are (though interesting) off base as far as the initial question goes. I tend to agree that a statute of the first type, which might criminalize a man lying to his police officer wife about whether her uniform pants make her look fat -- and which I highly doubt exists anywhere -- probably would be unconstitutional on its face.
I think Prof. Kerr's question, at least as I read it, would best be stated: Assuming that punishing such a lie would have been constitutional before the statute of limitations ran on Crime X, is it constitutional to punish that lie if made long afterwards? Prufrock765 is right when he says that this is not a close question.
For one thing, RV (11:44) is right on the nose when he says that the statute of limitations does not bar prosecution on Crime X here. A defendant can waive statute of limitations if he wants, and from time to time defendants actually do -- usually by a couple of weeks or months in an ongoing investigation, where they want to look cooperative and hope that if they do then prosecutors will decide not to charge them.
Anyway, criminal conduct for which the SoL has lapsed can be charged as a predicate act in a RICO prosecution. All the comments that assert there could be no legitimate basis for a police officer to inquire about conduct long ago are mistaken.
that's stupid, and i already explained why. i realize it is the job/raison d'etre of attorneys to think of everything in adversarial terms, but it simply is not so.
it also assumes that they are considering you a suspect, not a witness or victim etc.
"No matter how nice and friendly they are the police, federal and state investigators, prosecutors, are NOT your friends."
the issue is not whether they are your friends or not. *if* they come to talk to you as a suspect or a person of interest and you didn't DO it, and you can offer explanation/alibi, etc. then you SHOULD do it.
if you are guilty, otoh, that's an issue between you, your conscience, etc. fwiw, some people who confess ARE glad they did so.
but this idea that you should never talk to police is insanely stupid.
and like i said, MOST cop stops and/or social contacts do not result in arrest or prosecution. PART of the reason why is that people offer explanations, etc. see: the deer blood example.
cops may not be YOUR friends, but they are not your ENEMIES either.
In doing so I came upon several similar real-life scenarios mostly dealing with child molestation/rape. In one, the SOL had run out but Bob may be charged for lying on official gov't forms (parallel to lying to an officer):
From what I've also gathered, waiving the SOL on the crime in the hypo may sometimes be in Bob's best interests (e.g. pleading guilty to an SOL-expired robbery in location A as an alibi for a murder in location B).
I'm interested in hearing Prof. Kerr's answer to the hypo.
When you return home I think you'll find that Prof. Kerr already addressed your interest with his comment that it "feels icky."
And, with your indulgence, I'll take this opportunity to note amusement at our law student's comments. How is it he came to know so much in the ways of science? Must be a third-year.
Hmmm. Some questions in response to this line of argument:
A. What if the witness legitimately believed it was a white Ford and the perps were headed south on Main Street? Would you really want to prosecute and convict him in a court of law for an honest mistake?
B. What if the criminals were never caught, and it's never conclusively established what color or make of car they drove or in which direction ... but two other witnesses disagree with the first witness' account? Would you really want to prosecute and convict him in a court of law for a difference in recollection?
C. What if the cop were mistaken, and no crime had been committed? Would you really want to prosecute and convict the witness for incorrect unsworn testimony that did not relate to an actual crime?
D. What if the cop were under cover and did not identify himself as a police officer? Would you really want to prosecute and convict the witness for making an incorrect statement to someone he legitimately believed was an ordinary citizen?
E. If it's a criminal offense to lie to a police officer (and/or FBI agents and other government functionaries) under all circumstances, while under oath or not, then why bother with swearing an oath, ever? I mean, what's the point?
F. Don't you think that blurring the distinction between sworn and unsworn testimony will have the real-world effect of causing ordinary citizens to say nothing to a police officer unless they have their attorneys present? Wouldn't the practical effect of this situation be to make it more difficult to pursue justice?
G. Doesn't the lack of reciprocity bother you? It's a crime for you to lie to a cop, even when you're not under oath ... but it's OK for the cop to lie to you?
H. Would you rather live under a government that allowed you to make an incorrect statement to a police officer while not under oath, or would you rather live under a government that ignored the distinction between sworn and unsworn testimony and could convict you for what you believed was an idle remark? We have a name for societies in which the police have extraordinary powers over private citizens ... they're called "police states."
Yeah, just ask one of the hundreds of completely innocent people who have served years in prison for crimes they didn't commit.
Mike G. responds,
Your question is clearly outside my hypothetical, Mike. I wrote that the witness "knowingly lies". I even added redundancy to make sure readers understood that honest mistakes were NOT part of my hypothetical.
But to answer your own hypothetical: No, it would be a disaster if eyewitnesses were prosecuted for making honest mistakes.
Again, Mike, this was NOT my hypothetical! My hypothetical included the redundant emphatic that the witness "knowingly" LIED. (As Jack Nicholson would say, were he in "A Few Good Men"..."Is there any other kind?")
This is really getting tedious, Mike. I don't mind at all if you extrapolate beyond my hypothetical, but please make it clear that you're doing so. In my hypothetical, there HAD been a bank robbery, and the witness *deliberately* LIED to the policeperson.
Geez, Louise, Mike! This is annoying! Your questions are interesting, but please do NOT imply that they are simply in response to my hypothetical...as though you are finding fault with my hypothetical. In my hypothetical, I said nothing about the policeperson being undercover, so it could be assumed he or she was in uniform. And once again, the witness did not simply make an "incorrect statement." The witness in my hypothetical LIED. (KNOWINGLY made a false statement.)
Why bother swearing an oath? Because in an oath, a witness swears to tell the truth, the whole truth and nothing but the truth. And if they refuse to answer, they need to invoke their right under the 5th amendment against self-incrimination. I doubt most juries would convict a witness for simply remaining silent or refusing to answer police questions.
You write as though *I'm* causing this. I simply gave a hypothetical that I hope pointed out to people why it might be a good idea to make it a crime for someone to deliberately LIE to a police officer while a crime was in progress.
But as far as lying to a police officer being a crime, and that causing problems in pursuing justice, I think that, yes, it could indeed cause problems. I can speak from personal experience. When I was in another city as part of my job, I had a laptop computer (owned by my employer) stolen from my hotel room. I checked in late at night on Day 1, went out and got dinner, and didn't notice it was stolen until night-time at Day 2. Then I didn't report it until Day 3 because I knew the police could never find it. (It was probably worth $300-600 at the time, and would today be worthless.)
But I ended up reporting it, and a police officer was sent out. He questioned me about me going to dinner, and asked if I'd "Gone with someone" or "Returned with someone" or words to that effect. What I inferred was that he was thinking I might have been with a prostitute, and she'd stolen the computer. I hadn't been with a prostitute...I had truly gone to dinner and returned alone. But if I *had* with a prostitute, I probably would have lied about that...prostitution being a (victimless) crime, after all.
So...you have a lot of good questions, Mike G. But please don't imply that your questions directly respond to my hypothetical. Please instead make it clear that your questions extend beyond--in some cases WELL beyond--my hypothetical.
H. Would you rather live under a government that allowed you to make an incorrect statement to a police officer while not under oath,
Mike G. responds,
Your question is clearly outside my hypothetical, Mike. I wrote that the witness "knowingly lies". I even added redundancy to make sure readers understood that honest mistakes were NOT part of my hypothetical.
But to answer your own hypothetical: No, it would be a disaster if eyewitnesses were prosecuted for making honest mistakes.
Again, Mike, this was NOT my hypothetical! My hypothetical included the redundant emphatic that the witness "knowingly" LIED. (As Jack Nicholson would say, were he in "A Few Good Men"..."Is there any other kind?")
This is really getting tedious, Mike. I don't mind at all if you extrapolate beyond my hypothetical, but please make it clear that you're doing so. In my hypothetical, there HAD been a bank robbery, and the witness *deliberately* LIED to the policeperson.
Geez, Louise, Mike! This is annoying! Your questions are interesting, but please do NOT imply that they are simply in response to my hypothetical...as though you are finding fault with my hypothetical. In my hypothetical, I said nothing about the policeperson being undercover, so it could be assumed he or she was in uniform. And once again, the witness did not simply make an "incorrect statement." The witness in my hypothetical LIED. (KNOWINGLY made a false statement.)
Why bother swearing an oath? Because in an oath, a witness swears to tell the truth, the whole truth and nothing but the truth. And if they refuse to answer, they need to invoke their right under the 5th amendment against self-incrimination. I doubt most juries would convict a witness for simply remaining silent or refusing to answer police questions.
You write as though *I'm* causing this. I simply gave a hypothetical that I hope pointed out to people why it might be a good idea to make it a crime for someone to deliberately LIE to a police officer while a crime was in progress.
But as far as lying to a police officer being a crime, and that causing problems in pursuing justice, I think that, yes, it could indeed cause problems. I can speak from personal experience. When I was in another city as part of my job, I had a laptop computer (owned by my employer) stolen from my hotel room. I checked in late at night on Day 1, went out and got dinner, and didn't notice it was stolen until night-time at Day 2. Then I didn't report it until Day 3 because I knew the police could never find it. (It was probably worth $300-600 at the time, and would today be worthless.)
But I ended up reporting it, and a police officer was sent out. He questioned me about me going to dinner, and asked if I'd "Gone with someone" or "Returned with someone" or words to that effect. What I inferred was that he was thinking I might have been with a prostitute, and she'd stolen the computer. I hadn't been with a prostitute...I had truly gone to dinner and returned alone. But if I *had* with a prostitute, I probably would have lied about that...prostitution being a (victimless) crime, after all.
So...you have a lot of good questions, Mike G. But please don't imply that your questions directly respond to my hypothetical. Please instead make it clear that your questions extend beyond--in some cases WELL beyond--my hypothetical.
Mark
P.S.
Oh brother. See, this is what I mean. Don't you know the difference between an incorrect statement and a *lie*? In my hypothetical, the witness was NOT merely making an incorrect statement. I made it clear that he or she was DELIBERATELY making a false statement...i.e., lying.
Gotta go...
Your G and H say it all, as far as I'm concerned. I'd be especially interested in Whit's response to them.
The question isn't what Mike doesn't know, it's what some prosecutor doesn't know.
For my part, (a) I'm at least as uncomfortable giving government this much power as some death-penalty opponents are regarding that aspect of criminal law, and (b) I'm really, really unhappy about the lack-of-reciprocity part--nothing reeks of nobility vs peons quite like that.
Isn't Horatio's position the prudent one in light of Martha Stewart and Scooter Libby?
I consider myself a very law abiding citizen, BUT those cases have persuaded me that the only safe thing to say to the police is 'Prove it, copper."
Mark, I was responding to your hypotheticals with variant hypotheticals of my own, but I thought it was sufficiently obvious that (a) I was doing so, and (b) some of them do fall within the scope of your example. The plainclothes cop case is one such. If the law says it's a crime to lie to a cop, with no qualifiers stated in the law, then I see no reason to exclude undercover cops from your hypothetical.
Your hypothetical also depends on omniscience on the part of the cop and/or the prosecution, therefore it has no application to the real world. You know the witness lied, so therefore the cop knows the witness lied. Given omniscience and infallibility, why bother asking questions of witnesses?
If omniscience and infallibility don't enter into the picture, then I don't see a significant difference between your hypotheticals and mine.
Huh? You're stating the definition of an oath. So what? I don't see this as an answer to my question, nor do I see you making any valid distinction between the two cases ... unless you are somehow trying to say that when a cop asks me a question and I'm not under oath, then I don't have a Fifth Amendment right to not answer him? (Does anyone see Mark's response as a valid answer to my question?)
To directly answer your stated hypothetical ... well, let's look at what the question was, OK?
In this case, Yes, I do, if an incorrect answer is going to be prosecuted as if it had been given under oath.
And sometimes I do think it's OK to lie to a cop. Don't you think it would be OK to lie to a cop if the question were, "Are you hiding any Jews from the justice of the Reich?" And remember, not that long ago this question was not hypothetical.
As I recall, the guy tortured his wife to death and took pictures of it. He hid the pictures (film?) under the floor of his kitchen. He was tried, testified he was innocent on the stand, and acquitted. He had to sell his house to cover the legal fees; when the new owners changed the flooring, they discovered the pictures and turned them over to the police. The pictures were used to convict him of perjury on the grounds that he did indeed kill his wife, contrary to his testimony. He went to prison for the maximum sentence for perjury, served it, and was then released.
"What if the witness legitimately believed it was a white Ford and the perps were headed south on Main Street? Would you really want to prosecute and convict him in a court of law for an honest mistake?"
The issue here is the difficulty in proving whether a statement that proves to be false was KNOWINGLY false, and issue exists whether the statement was made under oath or not. What if the police asked the witness to provide a sworn written statement immediately after the interview, and (still honestly believing the car in question was a white Ford and therefore having no reason to write otherwise) the witness puts the same information into the sworn written statement? Do you think it would be wrong to prosecute this person for lying to a police officer for the verbal statement, but right to prosecute this person for perjury for the written statement? If not, how does your "variant hypothetical" support the idea that laws criminalizing perjury are acceptable but laws criminalizing lying to the police are not?
OTOH, the same problem of possibly being prosecuted for mistaken testimony as if it were a deliberate lie certainly exists for formal testimony in a courtroom. AFAIK, Scooter Libby testified before a grand jury for 10 hours about events years in the past, without his notes, and without a lawyer in the room. He's going to prison for a few discrepancies. I find it hard to see how a jury could determine that those were lies instead of bad memory unless they didn't understand the concept of "reasonable doubt".
Mike, I don't mind you making that extrapolation as YOUR hypothetical. But unless the undercover police officer does something to identify himself, how can the witness even know he *is* with the police?
I can't see many prosecutors prosecuting a witness who lied to an *undercover* police officer (who made no attempt to identify himself). It would be too difficult to obtain a conviction. All the defense would have to do is to persuade *one* juror to strongly think that there was reasonable doubt and there would be no conviction. The defense could very easily make the point that, not knowing the undercover officer was actually with the police, the witness simply didn't want a bunch of nut jobs racing through the streets. The defense could make the point that the witness was actually trying to *help* the police by not having a lot of chaos. All they would have to do is convince *one* (strong-willed) juror that such thinking was reasonable, and the jury would be hung.
No, you're missing the logic. When a person takes an oath, a person swears to tell the WHOLE truth. And the person can ONLY refuse to answer by invoking his or her 5th Amendment right against self-incrimination. If the person simply remains silent, the judge can throw the witness in jail for contempt.
On the other hand a witness who has *not* been sworn, CAN simply remain silent. He or she does not have to answer ANY questions. (Note how the standard Miranda list includes, "You have the right to remain silent..." And that is for a person who has even been arrested for a crime.)
So THAT'S the difference between a SWORN witness and someone talking to a police officer. A SWORN witness at a trial must answer, someone talking to a police officer can simply remain silent…refuse to answer questions.
In Olin Kerr's hypothetical, the person who committed the crime could (and should!) have told the police officer, "I don't want to speak to you. Unless you have a warrant, please leave my property immediately."
A SWORN witness can't do that.
And in my hypothetical, the witness also could have simply remained mute. Or said something that didn't actually answer the officer's question, like, "I'm scared." Or, "Geez, wasn't that a bank robbery?!" Or, "Boy that car was sure going fast!" All of those are the truth, but simply don't answer the officer's question. The witness simply can’t be compelled to answer the police officer’s question.
A SWORN witness could not do that. Or if the sworn witness did, the Prosecutor could request that the judge demand an answer to the specific question, "They left in a blue Chevy, headed north on Main Street, right?"
To give another analogy: If Bill Clinton is in court testifying under oath in a civil case and is asked, "Did you have sexual relations with Monica Lewinsky under the definition provided by this court, including 'fondling and kissing of the breasts, fondling of the buttocks, and fellatio'"?....and he says, "no," he has committed a crime. And he can be compelled by the judge to provide a “yes” or “no” answer (if the judge thinks the answer is relevant to the case at hand).
But if a police officer asks Bill Clinton the same question on the street, he can simply answer, "I never had sexual intercourse with that woman, Miss Lewinsky." He has told the truth, but not the WHOLE truth. He cannot be compelled to tell the WHOLE truth, because he is not under oath.
You seem to be consistently making an "incorrect answer" into a "lie." Police get differing eyewitness accounts all the time! In fact, there was a fascinating study by a law professor somewhere in which a simulated crime--something like theft of a laptop--was made to occur in front of an entire lecture class of law students, and then they were given a written quiz about what had just occurred. It was made into a TV documentary. I completely flunked myself. People couldn't agree on the number of perpetrators, their height and weight, what they were wearing, and a host of other basic information. When police get erroneous eye-witness accounts, I doubt 1 in 10 or even 1 in 100 is prosecuted for LYING to the police. As I wrote above, it would be too easy for the defense to demolish that case by simply demonstrating to the jurors how hard it is for the human mind to function under stress and unexpected events.
Mike, please don't confuse morality with the law. I'm not saying it's *morally* wrong to ever lie to a police officer. I'm giving one situation to show why is might be a good idea to have it be a *crime* to lie to a police officer.
We have plenty of laws in THIS country--let alone Nazi Germany--that I think are flagrantly immoral. I have few or even no moral qualms about people violating such laws. Medical marijuana comes prominently to mind. If I knew someone who was breaking federal or state laws against medical marijuana, I would have absolutely no moral qualms against lying to the police about it. (However, hopefully, I would simply tell the police, "I'm sorry, but I don't want to talk to you about this without an attorney present.")
And while I'm at it, pain medication also comes prominently to mind. If you follow the TV show, "House," there were some episodes where a police officer was going after House for addiction to pain medication. When the police officer came to the hospital to question House's colleagues, and asked them how many pain pills he took each day, not one of them said, "I'm not going to answer your questions. I'm a doctor; I have more important things to do." (That show could definitely use the advice of someone who knows something about the law. The parts of the show where *doctors* routinely break into people’s houses to search for medical clues seems just a tad…unrealistic!)
One good thing about the U.S. is that local prosecutors are frequently (perhaps always?) elected. Therefore, they are somewhat sensitive to very bad publicity. For example, in the case of medical marijuana, even if the prosecutor won the case (obstruction of justice for refusing to cooperate with police about medical marijuana), it could easily end up as a political disaster for the prosecutor. So he or she would be much more likely to spend limited time and resources on a crime that all voters would agree is important.
No, I hope I’ve made it clear that I’m saying the opposite. If a cop asks you a question and you’re NOT under oath, you have the right to remain completely silent. You do NOT have the right to remain silent when you’re a witness under oath EXCEPT when your testimony might incriminate you. Then you MUST invoke your 5th amendment right, or you will go to jail for contempt of court. If a cop asks you a question, you can say, “I don’t want to answer any questions, unless it is down at the stationhouse with a lawyer present.” Or you can simply say, “I don’t trust the police, so I don’t want to answer any questions that you might somehow twist around to use against me.” You can’t be compelled to answer any cop’s questions, because you are NOT under oath.
Now here's a related question: police obtain conclusive evidence of guilt of a fairly serious crime, but after SoL. The perpetrator has in the meantime become an important and respected public figure. Should the police make this information public? If so, how?
Ah, I see your point now. Thank you for clearing that up.
I do believe, though, that in your hypothetical case the witness should not be prosecuted for the crime of lying to a police officer. If the cop really believes that what the witness said resulted in an obstruction of justice, he can always arrest the witness for the separate crime of obstruction of justice or even for conspiracy if the cop believes the witness is in league with the bad guys. Or he could ask the witness to give him a sworn statement, and then try to prove in a court of law that this statement was deliberately false.
Here's a question for you, based only on your hypothetical: Can you come up with any circumstances for your scenario in which the lying witness could not be prosecuted for some other crime, such as obstruction of justice, instead of for the crime of lying to a cop? In other words, it might be useful, but is a law against lying to a cop ever necessary? I strongly suspect it isn't.
Um ... When the cop arrests him?
I think it may be instructive to investigate whether existing, real-world laws that criminalize the act of lying to a law-enforcement officer do in fact draw an explicit distinction between uniformed and plainclothes investigators, or between identfied and non-identified officers. I betcha they don't.
"Many" prosecutors wouldn't prosecute. I betcha some would, for any number of possible reasons. ("Paging Mr. Nifong!") That a law probably wouldn't be misued all that often seems to me to be an odd and risky justification for giving agents of the government extraordinary powers.
In general, I don't think Americans should easily surrender any rights reserved to them under the First Amendment. The general concept is that we should be free to say and publish anything we want -- even lies! Even false religious doctrines! A false statement made under oath is one of several obvious exceptions, as are slander, libel, false advertising, revealing military secrets and publishing some forms of pornography; even in these cases, the boundaries have been hard-fought, and reasonable people can and do disagree where they should be set. But criminalizing someone's speech solely on the basis of to whom it is said seems to me to cross the line.
(Yes, I know there are other laws that criminalize speech based on the identity of the listener -- sexual harrassment laws, for example. I have my reservations about some of these, too, but that's neither here nor there.)
I see that, and I understand the difference between morality and legality. But my first few responses to your original hypothetical were situations that to a non-omniscient third party could appear to be identical to yours -- hypotheticals that would serve as examples of cases in which it would not be a good idea to have it be a *crime* to lie to a police officer. Criminalizing the act of lying to a police officer might indeed be a wonderful idea if witnesses, cops, prosecuting attorneys, and judges were omniscient and infallible. Guess what? They aren't!
But when that one case is your own, it sure would make a difference, wouldn't it? ;-)
In fact, my hypotheticals B and C were both proposed as analogs to the Scooter Libby case, which similarly bothers me though the specifics of the "crime" are different. As markm pointed out,
I should point out, parenthetically, that I'm not anti-police or anti-prosecution. I have a cousin who was a homicide detective, and another who is the District Attorney for Madera County; they're good people, I trust them, and I generally agree with them.
In brief (finally!) I'm against criminalizing the act of lying to law-enforcement officers because:
* I don't believe it can be justified as "necessary"
* I believe it infringes too much on our rights under the First Amendment
* It helps establish what I believe is a new justification for eroding our First Amendment rights: criminalizing speech based on the identity of the listener (IANAL, ICBW)
* People innocent of the crime of deliberately lying to a cop -- as opposed to simply being mistaken -- will be prosecuted and convicted, and I am not persuaded or reassured by arguments to the effect of, "Oh, that will hardly ever happen."
* As K Parker wrote, "'I'm really, really unhappy about the lack-of-reciprocity part--nothing reeks of nobility vs peons quite like that."
YMMV, of course.
True story: I was once pulled over for yelling "Merry Christmas!" as I drove by a cop who'd pulled someone over... and yes, it was Christmas day.
You write,
OK, fair enough. That's actually a very good point. That point blows Orin Kerr's hypothetical out of the water, because the guy who confesses to a crime that's beyond the statute of limitations can't possibly be obstructing justice, since he is beyond justice. So even if the person in Orin Kerr's hypothetical confessed to the crime, he would not be obstructing justice (due to the statute of limitations having run out), and therefore couldn't be prosecuted.
And in my hypothetical, the police and prosecutor would have to prove obstruction of justice, rather than simply lying to a police officer. If, for example, there was already a police car in pursuit of the correct vehicle (the blue Ford headed north), the lie to the officer at the scene might not alter the the timeline of arrest at all. The defense could at least argue that in court. Or the prosecutor might be reluctant to pursue the obstruction of justice charge if it couldn't be clearly shown that the arrest was significantly delayed. Also, if the defense could make a strong case that the accused had no to obstruct justice, that would introduce a strong element of doubt.
Regarding your concerns about the First Amendment: I see the real problem as being the Fourteenth Amendment. As long as the First Amendment only applied to CONGRESS (as it pretty clearly did, prior to the Civil War), it seems to me the right to free speech could be absolute. That is, there truly could be ***no**** federal laws restricting speech at all (since things like libel and slander could be handled at the state level).
However, the Fourteenth Amendment really mucks things up, because it implies the possibility that the First Amendment's absolute prohibition to Congress is being extended to state legislatures. That can't work because it would completely prohibit laws against slander, libel, false advertising, etc.
Best wishes,
Mark
True story: A car in which I was riding to CT (from Va Tech) as a passenger was pulled over by like *5* Va Tech campus security cars, with lights flashing (and at least briefly one siren, as I recall).
Reason: The driver (unknown to me) had given campus security the old one-finger salute. This was the same driver who had a bag a marijuana right in the GLOVE COMPARTMENT of his car (i.e. right next to his automobile registration card...if he had one)!
Talk about "Darwin Award" stupid things to do! Absolutely astoundingly, we all were allowed to go on our merry way after the driver was successfully encouraged to apologize to the woman officer who was apparently in the car he saluted. (Or perhaps it was in one of the other four cars that came rushing up.) (What a bloody disaster. If anyone has been part of a car pool going from a university to another state for a Christmas break, you'll know that there aren't a lot of options if the car you've managed to get into ends up spending a week in an impoundment lot!)
Ah, the memories! :-)
Excellent point!
Perhaps our hosts could some day be persuaded to examine that topic. I would love to see a discussion of the issues involved ...
Cheers!