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Thursday, March 29, 2007

Column: Fibbing, legally speaking


During their lengthy deliberations, jurors in the Lewis “Scooter” Libby trial appeared at times to be confused about the charges against the former White House aide. On at least five occasions, they asked for clarification of such concepts as “reasonable doubt” and “false statement.”

Who can blame them? The Libby jurors had the unenviable task of analyzing the elements of three distinct crimes: Libby was charged not only with perjury, but also with making false statements, and obstruction of justice.

In English, that means the government thinks that Libby fibbed, but in three very special ways. That’s not unusual: the law has an almost endless variety of terms for lying. In Black’s Law Dictionary, the word false gets an admirably concise definition (“not true”) followed by a list of twenty-one synonyms. There we see false representations and misrepresentations, frauds and deceits, counterfeits and forgeries, to name only a few.

The one term you won’t find in Black’s is “lying.” Which is odd, since the law doesn’t exactly shrink from unpleasant words; murder, rape, nuisance, and bastard all have their place in the legal lexicon. But for some reason, the law likes to tiptoe around the subject of, well, prevarication.

For one thing, lawyers love to use Latin when discussing falsehoods; it adds a touch of elegance to an otherwise tawdry subject. In legal Latin, a fabrication is transformed into the almost-refined suggestio falsi; a failure to tell the truth becomes a mere suppresio veri; and, of course, a large frothy coffee is a venti cappuccino.

“Perjury” – although it is now an English word – actually began life as yet another Latin euphemism. It comes from the Latin periurium, or “oath-breaking.” When if first appeared in English statutes in the fifteenth century it was intended to replace the Old English forswearing, which meant both swearing falsely and renouncing an oath.

Today, perjury means deliberately lying about an important (or “material”) fact while under oath. The perjury charge against Libby was based on allegations that he lied to a grand jury about conversations he had concerning former CIA operative Valerie Plame. When a witness is caught perjuring himself, the opposing lawyers will argue that the witness’s entire testimony should be discredited; or, in the traditional legal formulation: falsus in uno, falsus in omnibus. Needless to say, that is not the sort of language one bandies about down at the dockyards.

Also from Latin comes subornation of perjury, inducing another to commit perjury. “Subornation” is formed by sub (“under”) plus ornare (“to equip,” related to “ornate”). The first recorded reference to subornation of perjury appears in the 1588 book Lawier’s Logike.

Despite the onslaught of Latin, the Anglo-Saxon “forswear” never entirely disappeared from the legal vocabulary. It is still technically available for those who like the sound of archaic words, and who probably also like to pick up their groceries at Ye Olde Victual Shoppe.

Forswear is listed in Black’s as a general term for oath-breaking; unlike perjury, it does not require that the false statement refer to a “material” issue. In addition to perjury and forswearing, there are the nearly-identical offenses of false swearing, false oath, and the Latin crimen falsi (confusingly, sometimes listed as falsi crimen). The fact that the law has five ways to describe oath-breaking reflects its splendid vocabulary, as well as its impeccable logike.

The crime of “making false statements” has the advantage of being in English, but it unfortunately gives the impression that one might go to prison for celebrating yet another twenty-ninth birthday. In fact, the offense consists only of lying to federal officials. In the Libby case, the indictment charged Libby with deceiving FBI agents, again about Valerie Plame.

Fraud is the broadest legal term for dishonesty. The word comes from the Latin fraus, “deceit” or “injury.” Although it is but a one-syllable word, fraud inspires judges to new heights of eloquence; or verbosity at any rate. A former justice of the Pennsylvania Supreme Court once described fraud as

The evil of evils. . . It is the match in the hayloft, the serpent in the garden, the weasel in the chicken yard, the spider in the web, the false bottom to the pool.

Everything, it seems, except the “delete” button on the keyboard.

The verb form of fraud is to defraud. This is confusing to non-lawyers, since “defraud” sounds like a distinctly good thing – as in, “I called the police and they were able to defraud the situation.” But in defraud, the “de” prefix acts as an intensifier, meaning “completely” or “thoroughly,” as it does in such words as declare, denude, and despoil. Like “fraud” itself, defraud has roots in Classical Latin, from the verb defraudare.

Fraud encompasses such practices as misrepresentation, obtaining money by false pretences, and false advertising. One variation on false advertising is passing off – representing your goods or services to be those of another – which is also known by the less-formal sounding palming off. The use of “palm” as verb, meaning “to pass off by trickery or fraud” is recorded as early as 1679. American courts have referred to “palming off” goods since at least the 1880’s.

A perennial controversy is whether a person’s silence – a mere suppresio veri if you will – counts as fraud. The answer, naturally, is that it depends on the circumstances. Did the defendant have a duty to speak? The venerable common law crime of misprision of felony denotes the act of deliberately concealing knowledge of a felony. The word “misprision” comes from the Anglo-Norman mesprison, originally meaning mistake.

In contract law, failure to disclose certain facts, although not a fraud, might render the contract voidable. This is the case, for example, with insurance policies, which are said to be contracts uberrimae fidei (of the utmost faith).

Making a false document with the intention of passing it off – or palming it off, for that matter – as genuine is forgery. Forgery comes from the Old French forgier, meaning “to fashion” or “to pound into shape.” Thus forgery is a metaphor: just as the blacksmith “forges” iron on the anvil, the criminal forges documents on the desk. Forging of money or securities is known as counterfeiting, from the Old French contrefaire, or “to make in opposition or contrast.”

In 1827, a local constable in Painesville, Ohio caught a gang of counterfeiters using an odd-looking machine to coin money. One of the locals dubbed the machine a “bogus,” thought to be short for tantarabogus, a mysterious folk word with roots in ancient Britain. In any event, bogus has become a quasi-legal term (as in the phrase bogus check) as well as word of common usage (as in totally bogus).

It is often said that a “little white lie” is harmless. In law, some lies are positively necessary. A feigned accomplice is one of law’s more helpful liars: a person who pretends to conspire with others in the commission of a crime, but only for the purpose of tipping off the authorities.

Arguably, the very existence of law depends on lies – a very peculiar set of lies known as legal fictions. A legal fiction is the assumption made by courts of facts known to be untrue. Consider orders made nunc pro tunc (“now for then,” i.e., retroactively) or the Fertile Octogenarian Rule (the presumption that every person is capable of procreation regardless of age).

The legal term constructive, as used in phrases like constructive eviction or constructive delivery, generally means “treat something as though it happened even though you and I know it didn’t.” Viewed objectively, these are nothing more than legally-sanctioned lies. But, of course, they never did anybody any harm. Honestly.

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