The genesis of this post was the recent action by the US 9th Circuit in California, in which the court recommended perjury charges against a prosecutor who had lied to the court. Please see our previous post on this case here.
When I first saw this, my initial reaction was “holy smoke!” This is precedent shattering. But when you read the details, the potential perjury charges were recommended because the prosecutor in question had lied while testifying. This situation does not cover a prosecutor’s lying in court when not officially sworn in and under oath, which is basically all the time.
That’s when I had the epiphany. Here’s my idea. Let’s have all trial counsel, prosecutors and defense attorneys, sworn in at the beginning of each trial. It’s so SIMPLE, and would COST NOTHING. At most, this would take 60 seconds of the bailiff’s time at the beginning of a trial, and then it’s done.
EVERYBODY is supposed to tell the truth in court, right? Any citizen who testifies swears an oath to tell the truth, and if they lie, they’re subject to perjury. Why should prosecutors be any different than the citizen? Of course, they will say they have a “code of ethics” that governs their behavior, but apparently this code of ethics has no legal teeth to it, because prosecutors lie in court routinely without consequence. Why should they not be exposed to the same legal rules as anyone else? What’s the big deal about just promising to tell the truth? Any truly honest, ethical person should gladly agree.
Here’s an example of how that could work. The judge asks the prosecutor, “Have you turned all relevant and germane evidence over to the defense?” The prosecutor will answer, “Yes, your honor, to the best of my knowledge.” THEN, if it is later determined that the prosecutor knowingly withheld evidence, it’s not just a Brady violation (which seems to have no penalty for the prosecutor), it’s perjury. The same situation would apply if the judge’s question is “Have you offered any incentives to this witness for his testimony?”
The LOGIC and FAIRNESS of this is undeniable and inescapable. How can anyone argue against it? It takes no time and it costs no money, and it levels the playing field.
Now, I’ve bounced this idea off a number of colleagues, and the uniform response has been, “Great idea, but it will never happen.” Of course the reason for this response is because of the politics involved. I seriously question whether you could ever get a state legislator to even sponsor such a bill, unless maybe they had a death wish. So I looked into what it would take to get such an issue on the ballot for a general election. Here in Ohio, this is called an Initiated Statute, and there is a constitutional process by which to undertake it. This process is positively daunting, and well beyond my meager capabilities. There has been only one such Ohio statute enacted within the last 10 years that I could find – the statewide smoking ban.
There must be a way. If you like the idea, I encourage you to run with it. Take it as your own. There must be a way. This is only fair.