Not convicted means legally innocent
Posted by aogMonday, 23 February 2004 at 17:49 TrackBack Ping URL

Do you have a right to lie about committing a crime? That subject came up over at The Brothers Judd with regard to the Martha Stewart case.

The essence of the prosecution’s case is that Stewart lied about committing insider trading by claiming she hadn’t. Further, this was done to prop up the stock price in her own company and therefore constitutes stock fraud.

I think this case is completely bogus, because it presumes Stewart guilty of a crime that not only wasn’t she convicted of, but the government declined to even attempt a prosecution in the matter. If it’s “innocent until proven guilty”, then Stewart is not (legally) guilty of lieing and therefore can’t be legally guilty of crimes based on that fact.

However, let’s suppose that Stewart did, in fact, inside trade. Being who she is, it would be impossible for her to remain silent on the issue as such silence would be taken as an admission of guilt. So she claimed she hadn’t. It’s one thing for citizens to disbelieve her, but if the government then prosecutes her for that statement, it is in effect forcing her to choose between committing another crime or testifying against herself. That seems to me to be classic violation of the Fifth Admendment.

In the general case, if it’s illegal to lie about being innocent, then law enforcement can do this to anyone accused of a crime. Just ask her if she did it and create this legal dilemma.

Moreover, if the legal theory behind the prosecution of Stewart were widely held, then why aren’t people who plead “not guilty” prosecuted for perjury? There would be just as much of a legal case against any of them as against Stewart, not to mention that it would be under oath (as the statements for which Stewart is being prosecuted are not). And if they were convicted, the legal case would be even stronger. Yet we don’t see that - I suspect that in any other circumstance it would be laughed out of court. But for some reason that rationality doesn’t apply here.

Comments — Formatting by Textile
Spoons Tuesday, 24 February 2004 at 15:33

You’ve got a few misunderstandings. First, it is not true that, “The essence of the prosecutionís case is that Stewart lied about committing insider trading by claiming she hadnít.” Stewart couldn’t have committed insider trading, because she isn’t an insider. What she’s claimed to have lied about is receiving certain information from her broker (which would have made her broker guilty of crimes). The government’s theory is that Stewart lied about her role in order to prevent the appearance that she was involved in something hinky, which might hurt the stock price of her own company. This is a securities fraud charge. It’s also very novel and, in my view, extremely weak. The government has a much stronger case that she’s guilty of plain old lying to federal investigators, which is a crime in itself (regardless of motivation).

Moreover, neither Stewart, nor anyone else, has a privilege to lie about their own guilt. You write, “Being who she is, it would be impossible for her to remain silent on the issue as such silence would be taken as an admission of guilt.” This is not true. The Fifth Amendment prohibits silence from being taken as evidence of guilt in a criminal case. Would she be viewed as guilty by many people? Sure, the Fifth Amendment doesn’t regulate what private people can think. Does that give her a legal privilege to lie? No.

“Itís one thing for citizens to disbelieve her, but if the government then prosecutes her for that statement, it is in effect forcing her to choose between committing another crime or testifying against herself.” No, she’s entitled to remain silent.

“In the general case, if itís illegal to lie about being innocent, then law enforcement can do this to anyone accused of a crime. Just ask her if she did it and create this legal dilemma.” Again, no, she’s entitled to remain silent, and she cannot be forced to answer that question. Moreover, her silence can’t be used against her in a criminal prosecution.

“Moreover, if the legal theory behind the prosecution of Stewart were widely held, then why arenít people who plead ďnot guiltyĒ prosecuted for perjury?” Pleading ‘not guilty’ does not constitute an assertion that you are factually innocent of a charge. Moreover, perjury applies only to testimony under oath. A plea does not constitute “testimony,” and is not given under oath. The Sixth Amendment means that the government has to prove your guilt. The Fifth Amendment means that you don’t have to answer questions.

However, witnesses who testify on their own behalf and say that they did not commit a crime, can be prosecuted for perjury. It doesn’t happen that often, though, because if you manage to prove the guy lied, them most of the time you’ve convicted him of the underlying crime, and it’s not worth going after him for perjury. Where you do see this happen, sometimes, is where someone testifies, lies, gets off, and then new evidence comes forward.

All of this is another reason why most criminal defendants don’t take the stand in their own behalf.

Annoying Old Guy Thursday, 26 February 2004 at 10:55

Ah, that’s enlightening. My primary concern is that it seems very wrong to prosecute Stewart for statements made at a press conference. If she made similar claims to federal investigators, that’s quite a different matter, in which case she should (as you note) prosecuted for that. It all hinges on which statements are the basis for the prosecution.

Tom McMahon Friday, 27 February 2004 at 12:08

So, should the Wisconsin Attorney General who drove drunk into a ditch face charges for telling the police officer she only had two glasses of wine? It’s hard to reconcile that with the .12 alcohol level she blew. (Just a rhetorical question. I really don’t have an opinion.)

End of Discussion