Treatise on Witness Immunity

A Treatise on

Witness Immunity and the Public Policy Rationale

By Larry Leitgeb, June 2010

Have you ever sat in a court room and listened to a witness testify against you under oath knowing full well that the person was lying? Have you ever wondered what remedy you have as an injured party, a victim of slander? Additionally, if the lie is told in a civil trial, you may also be a victim of legal plunder. If it is at a criminal trial, you may also be a victim of an unjust punishment. What can you do? What legal recourses do you have? In today's America, you have virtually none!

Does this seem unjust? Would you like to know why?

Our judicial system (our courts, our judges, our lawyers) has decided to give witnesses in any court situation near-absolute immunity in both civil and criminal cases. Here is the summarized decision found in Sinrod v. Stone (799 N.Y.S.2d 273, 2005):

Statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding.

'Absolutely privileged' is a fancy way of saying that you can not touch the person via the legal system.

For beginners to the study of law, the above law is not the result of our lawmakers sitting down and deciding the pros and the cons of giving protected speech to witnesses. It is the result of judges deciding what they think is best. (It is their courtroom after all, right?) It is a perfect example of judicial liberal activism.

Why would judges decide to give witnesses protected speech? This is the rational as found in American Jurisprudence 2D under section 291 of 'Libel and Slander':

The policy underlying the privilege is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements. [emphasis added] [Drew v. Davidson, 2003]

American Jurisprudence, referring to this in section 292 as the “public policy rationale,” explains further:

Absolute immunity is granted so that witnesses, bound by their oath to tell the truth, may speak freely without fear of a civil suit for defamation. [Zuber v. Buie, 2003]

The judges that preside over our American court system feel that the tendency to occasionally abuse the privilege will be counterbalanced by cross examination. As American Jurisprudence goes on to explain:

The widespread recognition of the privilege afforded to witnesses to publish defamatory matter in a judicial proceeding is predicated on the idea that the parties are protected from witnesses misconduct by their ability to reveal any deficiencies in the testimony through cross-examination and the threat of prosecution for perjury or other sanctions against the witness. [Lawson v. Helmer, 2003)]

But did our courts make the right decision giving witnesses absolutely protected speech?

I come from the world viewpoint that we are all sinners. It is from the very core of my belief system that I conclude that no one deserves absolute immunity. When our judges use the word 'occasionally' above, I want to cringe. I wish I could ask them what planet they are from. Man is a fallen creature and the scriptures plainly proclaim that ALL men are liars. To expect that most people will tell the truth when bound under oath, when there is no fear of earthly punishment in breaking that oath, is just as unreasonable as it is innocent. Perhaps this might have been more reasonable forty years ago when the “fear of the Lord” permeated our society as a whole. It is not reasonable now.

No one should be able to use the court system as a weapon to fulfill their own private vendettas or avarice. The law should not operate under the color of law.

It is ironic that the law requires that officers of the law marandize citizens on the street before taking them into custody. They must be told that they “have the right to remain silent. Anything [they] say or do can and will be used against [them] in a court of law.” But inside a court of law, a person can practically say anything without any significant repercussions.

In our current law, there is no civil remedy to bring a witness who lies under oath to justice. This is the case in a criminal trial as well as a civil trial. Why? Because, oddly enough, the injury happened in a court of law.

I said in the introduction that a victim of courtroom lies has virtually no legal remedy. The fact is that there is one, albeit not a very good one. The one and only recourse an injured party (or a party who was about to injured if the witness had not been impeached; that is, shown to be a liar) has is to convince a district attorney to prosecute the witness on perjury charges. This applies to both civil and criminal cases.

Perjury, as any injured party seeking a remedy will find out, is an offense under criminal law. This means is that it is a crime only punishable by the district attorney. Now there is the possibility, however remote, that you can convince a district attorney to take your case for you, but do not hold your breath. District attorneys have their ordinary plates full, and now even more so with budget cuts.

Let us pretend for a moment that you were charged with some horrendous crime, but the witness testifying against you on the witness stand is shown to be a liar under cross examination and the jury acquits you. The only constant in this witness's testimony is the enmity he bares against you. Do you think that you will be able to go to the district attorney and convince him to prosecute this liar for the crime of perjury? Just remember, this is HIS witness! Not a likely case scenario.

Let us pretend for a moment that someone seeking to profit at your expense files a civil suit against you, but the witness testifying against you on the witness stand is shown to be a liar under cross examination and the jury sides with the defense. Do you think that you will be able to go to the district attorney and convince him to prosecute this liar for the crime of perjury? Do you think that the district attorney will sit down with you and pour over volumes of transcript so you can show him why this witness is guilty without question. Not a likely case scenario.

Nolo, a self-help website dedicated to legal issues, has this to say about lying in court:

Another fact little known to those who don't live in the court system every day is that there is rarely any earthly punishment for lying in court. There is, of course, the crime of perjury. …

Nolo goes on to explain that the reason why district attorney's do not prosecute is because juries almost always fail to convict on the charge of perjury. But then again, as Nolo points out, how would the district attorney's know this because it is so rarely pursued.

With Absolute Privileged free speech and without any meaningful fear of punishment, there is no reason, except for personal convictions, to tell the truth. Therefore, any oath or affirmation to tell the truth, the whole truth, and nothing but the truth is meaningless except for the truly God fearing person.

This permits those who have no conscience or any sense of obligation to their maker, to lie on the witness stand against their neighbor if it serves their purpose.

And it tilts the scales of justice to those who know how the system works... and doesn't work. It tilts the scales to those who have been in trouble with the law before, as well as 'the law' themselves.

For those who are too innocent and sheltered to believe that 'the law' themselves would lie under oath have never heard of Nifong. Nor have they read any of Judge Napolitano's writings. Judge Napolitano states on page 128 of Constitutional Chaos the following:

As you gain more experience, you find police not only lying under oath, but using force confessions and prosecutors withholding evidence helpful to a defendant, all in an effort to bring about convictions.”

Our American judges have a valid point when they take the position that there is a 'public interest in having people speak freely.' The bar for proving a lie should be kept high so that an honest witness does not have to fear being sued later for slander, but this high standard is already in place naturally. By definition, a lie is a willful misconduct. Proving a false statement to be a willful misconduct is in itself difficult.

In other words, no one is suggesting that we throw grandma into jail because she testified that her grandson was with her on Monday, the day the crime was committed, when in fact it was Tuesday. Grandma may very well have lied to protect her grandson, but it would be impossible to prove her motive for making this false statement. Such judgments are best left to the Almighty. It is only when her statement can be proven beyond reasonable doubt to be willfully malicious that there should be fear of punishment or fines.

In addition, the evidence would need to be incontrovertibly false. The witness's false testimony would either have to be self contradictory or in complete contradiction to the lab evidence. Juries would assuredly never convict such a person otherwise.

Our American forefathers gave us a government that applied the essential and effective principle called “Balance of Power.” This principle however has been dismantled by the case law that protects witnesses in all situations. Without any fear of earthly punishment, the unscrupulous among us can bring case after case against their innocent neighbors until they finally win one. This policy empowers the unscrupulous while handcuffing men and women of conscience. This policy effectively shifts the balance of power to the unscrupulous.

So if you are an injured party, injured by proven false testimony against you, and you are depending on your local district attorney to administer justice, you basically have no remedy. The unscrupulous among us are using the courts as a weapon to advance their own personal agenda. They will continue to make a little gain here and a little gain there against the honest folk until it is the unscrupulous that owns most of the wealth in this country.

Now let us take a look at how the God of the Christian scriptures would handle a witness who bears false testimony. What penalty, if any, would the Living God give? Let us examine His response to civil matters as found in Leviticus chapter 6.

1 The LORD said to Moses: 2 "If anyone sins and is unfaithful to the LORD by deceiving his neighbor about something entrusted to him or left in his care or stolen, or if he cheats him, 3 or if he finds lost property and lies about it, or if he swears falsely, or if he commits any such sin that people may do- 4 when he thus sins and becomes guilty, he must return what he has stolen or taken by extortion, or what was entrusted to him, or the lost property he found, 5 or whatever it was he swore falsely about. He must make restitution in full, add a fifth of the value to it and give it all to the owner on the day he presents his guilt offering. [NIV]

As I understand it, God requires restitution in full plus one fifth when a man VOLUNTARILY repents of his sin.

Now let us take a look at how the God of the Christian scriptures would handle a witness who bears false testimony in criminal matters. What penalty, if any, would the Living God give?

16 If a malicious witness takes the stand to accuse a man of a crime, 17 the two men involved in the dispute must stand in the presence of the LORD before the priests and the judges who are in office at the time. 18 The judges must make a thorough investigation, and if the witness proves to be a liar, giving false testimony against his brother, 19 then do to him as he intended to do to his brother. You must purge the evil from among you. 20 The rest of the people will hear of this and be afraid, and never again will such an evil thing be done among you. 21 Show no pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot. [Deuteronomy 19, NIV]

America and the American Judicial System have gotten so far away from Biblical truths that we have implemented a complete opposite of what God commanded.

Again from our Christian scriptures, Amos delivers this warning:

7 You who turn justice into bitterness
and cast righteousness to the ground

...

10 you hate the one who reproves in court
and despise him who tells the truth.

...

12 For I know how many are your offenses
and how great your sins.
You oppress the righteous and take bribes
and you deprive the poor of justice in the courts.

13 Therefore the prudent man keeps quiet in such times,
for the times are evil.

14 Seek good, not evil,
that you may live.
Then the LORD God Almighty will be with you,
just as you say he is.

15 Hate evil, love good;
maintain justice in the courts.
Perhaps the LORD God Almighty will have mercy
on the remnant of Joseph. [Amos 5, NIV]

Whether you believe that by 'the remnant of Joseph' God is referring directly to the United States or whether you believe that God is referring to some other nation in history with similar problems, the interpretation is the same. We have failed to maintain justice in our courts and America is ripe for judgment.