Legal Ethics and Reform

Perjury: a Crime but not a Tort ... Why?

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".

When 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".

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