Constitutional Right to Lie

The Jussie Smollett story was objectively funny from the very beginning. Obviously, it’s a prime exhibit of confirmation bias and motivated reasoning. For whatever reason, people wanted to believe that there were MAGA gangs roving Chicago in negative degree weather, carrying rope and bleach, hoping to maybe run into D-list celebrities at 2AM. Who knew.

Smollett’s story unraveled very quickly, and he was then met with the full force of the prosecutorial state for wasting everyone’s time. It’s not totally clear why Smollett decided to proceed forward with a trial instead of just taking the L and pleading guilty. A trial gave an opportunity for the prosecution to publicly air out overwhelming evidence of his guilty, such as video footage of the staged attack.

But now that he’s been found guilty by a jury of the felony of Making Shit Up, some are smelling blood in the water and wanting to pounce. Andrew McCarthy, a former prosecutor whose work I otherwise respect, wants to punish Smollett with perjury for falsely testifying at his own trial.

Perjury charges in general are extremely rare, and largely serve as a paper tiger threat. But besides that, there are significant constitutional concerns over charging or threatening to charge someone with perjury when they are testifying in their defense at their own criminal trial.

Something to remember about constitutionally guaranteed rights is that the negative is often protected as much as the affirmative. So for example, the fact that criminal defendants are guaranteed an attorney also means they are guaranteed their right to forgo an attorney and represent themselves. When we're talking about the right to remain silent, this also means they have the right to speak, at least under certain circumstances. One aspect which survives today is a defendant's absolute right to speak at their sentencing, known as allocution.

This comes into play often in my job. I have to remind my clients that I, as their attorney, have zero power to prevent them from testifying at their own trial because it's entirely their decision. All I can do is advise them and tell them how awful of an idea it (usually) is.

But there's also an interesting historical wrinkle in how this "right to speak" was implemented. Under common law and throughout the 19th century, defendants were actually prohibited from testifying at their own trial. This prohibition survived into the 20th century in Georgia until it was struck down in 1961 with Ferguson v. Georgia, 365 U.S. 570 (1961).

However, to ameliorate the inherent unfairness of banning defendant testimony, common law jurisdictions allowed defendants to make an unsworn statement to a jury from the "dock". This statement would not be subject to cross-examination, and the jury was instructed to give it less weight compared to sworn testimony. The most famous example of this "dock statement" is from Nelson Mandela, who gave a three hour long (!) statement at the Rivonia trial in 1964:

During my lifetime I have dedicated my life to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons will live together in harmony and with equal opportunities. It is an ideal for which I hope to live for and to see realised. But, my Lord, if it needs to be, it is an ideal for which I am prepared to die.

So to wrap it all back up, there's a strong constitutional argument against perjury charges when it comes to a defendant speaking in their own defense at their own criminal trial. If prosecutors were somehow allowed to make this threat, it would have an obvious chilling effect on an accused's ability to fully defend themselves.

I would go further though. I would say say that an accused has a constitutional right to outright lie in their defense. After all, false statements of fact are still protected by the First Amendment (although potentially subject to civil liability) because otherwise you end up with a government body deciding what is true or false.

When someone is prosecuted for a crime, a plethora of constitutional protections is activated, including the right to present a defense. Taken altogether, there is a strong argument that defendants should be afforded far greater leeway to say whatever they want in their own defense at their own trial, without being hobbled into silence by threats of further criminal charges just because a prosecutor believes they have probable cause the accused lied.