In normal business affairs when a person lies and thus injuries
another, both a crime and a tort are committed. The criminal
prosecution could lead to a fine and possible imprisonment. The tort
action could lead to a judgement allowing the injured party to collect
actual and punitive damages from the wrongdoer. The burden of proof for
the crime is high - "beyond a reasonable doubt", for the tort the burden
of proof is lower - "by a preponderance of the evidence".
a person is caught lying in court, the rules are different. The courts
have allowed the prosecuting attorneys to retain their right to bring
criminal prosecutions, but the courts do not allow the injured party to
seek damages under tort law. This means that the injured party must
turn to a prosecutor to get relief. Because of the high burden of
proof and because of the heavy press of more serious cases, prosecutors
seldom bring perjury actions.
The reasons for this anomaly are unclear. The courts claim that
allowing such tort actions would lead to a flood of law suits because
lying is common in our courts. If lying is common, steps should be
taken to weed it out, not shelter it. More likely, courts are worried
least the sister tort "suborning perjury" be reinstated. Since lawyers
commonly coach their clients before they testify, and since "suborning
perjury" is defined as helping someone commit perjury, a client who was
charged with the tort of perjury would be opening his lawyer to the
sister tort of "suborning perjury".