What is a Lie?

Jerome Cronk/ July 3, 2017/ Law, Politics/ 0 comments

What is a lie?

One thing that politicians are more notorious for than lying is accusing others of lying, especially their election opponents and political enemies.  In today’s heated political climate the cries by candidates — and of their zealous supporters — that the opponent is a liar, fly off their lips with reckless abandon.  Accusations of lying, of “fake news,” made without offering any evidence or support (or even without a single example in many cases), nevertheless open a window of doubt.  Unsupported accusations of falsehood are devastating because they create suspicion and doubt and are often believed even without evidence, especially among a skeptical and cynical segment of the population that seems to be ready to believe any outlandish claim.  Such claims and the doubts they raise are often decisive in closely contested elections.  Accusing a candidate of lying, or being untrustworthy, what is called “character assassination,” is a well-worn strategy used with great effect to distract voters’ attention from economic, social and other public policy issues.  Politicians have learned this lesson and therefore throw around the accusations of lying with sometimes telling effect and free of repercussions.

So it is time to dispassionately and studiously consider just what statements — what kinds of utterances — are in fact lies or ought to be considered lies for political purposes.

The issue has, over a long period of judicial history, been thoughtfully considered by the courts.  Hundreds of years of judicial experience have worked out rules of evidence and legal principles that can be helpful as a guide or an analogy in weighing political rhetoric and unsupported accusations of lying.  Judges are rightly reluctant to find that a witness has lied if the of evidence does not fit those rules.  Lawyers often deal with clients who are obsessed with a craving to skewer the opponent in court for lying and lawyers have to remind their clients of the boundaries these rules prescribe.  Legal principles should be a guide to recognizing what is and is nuot a lie, both in court and in the political realm.

Here they are:  According to Black’s Law Dictionary a lie is:

An untruth deliberately told; the uttering or acting of that which is false for the purpose of deceiving; intentional misstatement.

Perjury is telling a lie under oath or in a judicial proceeding.

Another term for a lie is “misrepresentation.”  So when a speaker is accused of misrepresenting something that is an accusation of lying.

More precisely and more thoroughly for purpose of impeachment of a witness in a trial or other court proceeding a lie has the following elements, all of which must be met:

  1. The statement of the speaker must be of an existing fact.
  2. The statement must be untrue; the stated fact must be false.
  3. The speaker must know that the statement is false. (more below on what it means to “know” a statement is false)
  4. The statement must be made for the purpose of deceiving.
  5. There must be proof that the statement was false.  Proof must be clear and unequivocal; undebatable.
  6. The statement must be relevant to the issues in the case or material to the matter at hand hand; in the political arena the statement must relate to political and policy issues

Explication of these rules show that many kinds of statements claimed to be lies are not.  So the following types of statements are not lies even though arguably faulty or incorrect:

  • An opinion, a value judgment, stand or position on a public issue;
  • A prediction of what the speaker expects to happen;
  • A conclusion or statement of belief regarding a fact based on inference that turns out to be incorrect is not a lie.  Conclusions can and often do turn out to be wrong, but they are not lies.

Thus, President Obama’s statement that you can keep your insurance if you like it was a mistaken prediction or belief and not a lie.

  • Sometimes a statement is made based on assumptions — assumed and believed by the speaker to be true, but the foundational underlying facts, it turns out, don’t actually exist though the speaker believed those underlying facts to be true
  • A mistake of fact is not a lie if the speaker believed it was true at the time —

Mistakes can result from a lapse of memory or a mistaken perception.  Human memories are faulty.   And perceptions can and do differ considerably even when an event is witnessed by several people from the same vantage point.  This has been proven over and over again both in court and by scientists who have studied human perception.  Many people make statements based on what other people have told them.  It is not a lie if they repeated what they were told or learned, believed it and had reason to believe it.  Many times a speaker will relate a fact communicated to him or her or learned from another source that the speaker believed was true but turned out to be false.  That is not a lie, but the commonly happens to newspaper reporters.

The absolutely intractable problem here is that there is no way of reading the speaker’s mind or reliably discovering or knowing whether the speaker believed what he or she said was true or false. That is humanly is unknowable.  But it then becomes a question of whether the speaker had a reasonable basis to believe it.

  • A broken promise is not a lie —

Campaign promises of a candidate stating what the candidate intends to do if elected are not lies because they are not statements of an existing fact.  Promises, even though not performed after being elected are not lies.  Unfulfilled plans, hopes, proposals, expectations are not lies.  Failure to achieve a stated goal is not a lie.  People often claim that when someone breaks a promise it is a lie; it is not — either in court or in the political realm, unless the speaker had no intent of fulfilling the promise when made.  But the subjective intent of the speaker is unknowable.  Furthermore, many promises turn out to be impossible to achieve due to unpredictable or uncontrollable circumstances, in spite of the good faith intent of the speaker.  An example is President Obama’s promise to close down Guantánamo.  That became impossible due to congressional opposition. However, if a candidate made a campaign promise that he or she knew could not be fulfilled or was not going to be performed that would be a lie. Nevertheless this is a state of mind that may be suspected but is impossible to know.   Did Donald Trump know when he said during his campaign that he would have Mexico pay for the wall that that was impossible?  If he knew it was impossible then he was lying.

Since claims of falsehood are so damaging and so easily and frequently made, we must take great care that the proof of untruth is clear and unequivocal.  The alleged false statement must be proven to be false either by clear, credible testi­mony of some other witness or by a document, recording, photo, or other similar reliable evidence.  The accuser should have the burden of proving the falsehood.  In a civil case conflicting evidence may be resolved by judge or jury (the trier of fact) by considering all of the evidence and circumstances presented.  A party asserting a certain fact has the burden of proving it by a preponderance of the evidence, which means that the trier of fact can accept the disputed fact as true if it is more likely true than not.  The trier of fact may weigh the credibility of witnesses based on the witnesses demeanor and just how believable the testimony seems to be.  Therefore conflicting testimony may be resolved by the trier of fact determining that a disputed fact is more likely true than not

President Trump is constantly berating the media for promulgating “fake news.”  He seldom gives an example but it must be assumed he’s talking about some of the negative reports of disunity in his administration.  His problem is that he has no clear, undebatable proof that what the media has reported is false.  In his mind it is false because he says so.  But he offers no examples nor any hard evidence to refute what is published.  Most of what is published is based on interviews with Administration Insiders and the reporters had every reason to believe what they were told in these interviews were the truth.  For that reason you can’t call this fake news, even if in fact it were untrue. If reporters had a good reason to believe what witnesses told them, then what they reported was not fake news. To be fake news the reporter must know that it is false or have no good faith basis for believing it. The standard here can also be what is more likely than not.

Of course, the falsehood is established if the speaker has unequivocally contradicted himself/herself.  Contradictory statements of fact by the same person at different times must be lies because at least one of the statements is false, unless, again, one such statement was a mistake based on a lapse of memory or assumed facts.

But is a change of position by a politician on a public issue a self-contradiction amounting to a lie? Some seem to think so.  But it is not.  Maybe it’s “waffling,” but, waffling on a political issue is not a lie.  And there’s nothing wrong with a politician changing his or her mind on an issue, particularly one that a large majority of us over time have changed our minds about, such as gay marriage.  But, did Hillary Clinton lie when she claimed during the presidential campaign that she had always been in favor of gay marriage?  She stated that she had favored domestic partnerships, which is not the same as gay marriage.  She could have and should have simply said that she changed her mind, but instead created an impression that she falsely had always favored it.  Politicians (as well as the rest of us) can change their minds and often it is a good thing.  Everyone, including politicians, should be free to correct their previous positions.  But it is a lie for a politician to claim that he or she had always favored a certain position when they did not.

The rules of court provide that an untruthful remark that is not made with the intent to mislead is not a lie.  Falling into this category would seem to be offhand or sarcastic remarks, hyperbola or gross exaggerations intended to emphasize a point but not seriously intended to represent the literal truth. President Trump has often dodged claims of falsehood by saying he was just kidding, being sarcastic.  We’ll have to give him that.

A witness’s false statement offered as evidence in court will not be considered if it is not relevant to a material issue in the case.  The rule is that a witness cannot be impeached (that is proven to be a liar) based on a statement irrelevant to the case.  Similarly, in political discourse, the asserted falsehood should have something to do with the political issues.  It must be important to the candidate’s qualifications for the office.  For example, whether in a lawsuit or in a political contest, it doesn’t matter that a party or candidate lied about his golf score if that fact is irrelevant to the issues at hand.  In political campaigns the so-called character issues are often raised but we must always examine whether it is material to the political, economic and social issues of the campaign or the positions of the candidates on those issues. Character and personal issues tend to divert attention from the real material issues.  So, for example, is it really important do delve into the truth of whether senator Elizabeth Warren had Native American heritage or not as she once claimed in applying for a teaching position?  This is an irrelevant diversionary tactic to divert attention from the policy issues that should be our paramount concern.

This question — of relevancy, materiality or importance — came up in the legal proceedings and impeachment against Bill Clinton.  Was it material or important that he lied about sex?  It was a question of whether sexual misconduct had anything to do with his conduct of the office of the President.  Often that question is decided on whether you favored Bill Clinton or his politics in the first place.  If you favored Bill Clinton you found it irrelevant and excusable; if you hated him it mattered greatly.  A couple of comparisons are worth noting.  The denial by Ronald Reagan of the weapons for prisoners swap, though known to be false, has been forgotten or forgiven by his admirers, in spite of it being clearly relevant to his conduct of the Office of the President.  Similarly, consider George W. Bush’s false assertion in his State of the Union address in January 2003 that:

The British government has learned that Saddam Hussain recently sought significant quantities of uranium from Africa.

Though his administration knew this statement was false, that has been largely ignored and Bush has been forgiven, mainly by his supporters — even though it was highly relevant to his conduct of the office of the President and weighed heavily in the public’s support of the war in Iraq, resulting in the injury and deaths of thousands of service members who went to war in reliance on this and other such statements by Bush and his administration supporting the false claims that Iraq was hiding weapons of mass destruction. The facts are clear now that the Bush Administration had no reliable intelligence supporting the claim of Saddam’s WMDs.

This brings up a critical issue, mentioned above, about what facts are “known” by the speaker to be false.  A statement of fact for which the speaker has no credible evidence is a lie.  If the speaker’s statement is based solely on supposition, speculation or conjecture it is a lie.  No one should be able to get away with stating something as an existing fact when they have no evidence to support it   If a statement is based on supposition, speculation or conjecture, a guess or wishful thinking, the speaker must say so.  Otherwise it is a lie.  So when President Trump stated that middle easterners were included in a group of Central American migrants seeking asylum in the US he was stating a lie because he had no evidence of that. Likewise when Trump states that many immigrants from Mexico are criminals, drug dealers and rapists it is a lie because he has no evidence for that.   As a matter of fact the evidence is the opposite, that is, that immigrants are more law-abiding than native-born Americans as a whole.

Finally, there is the issue of lies of omission.  The courts have dealt with this too.  The rule is now that one has a duty to speak when the speaker knows of an important fact and knows that by omitting it the listener will be misled to his detriment.  This was not always the case in the days of “Let the buyer beware.”  But now it is well established in the law that if you know there is a material defect in a car or a house or some other product you are offering for sale you have to reveal it to potential buyers.  Failure to do so is called “constructive fraud.”   It is so in politics as well, that making a statement that leaves out important contrary or qualifying facts is a lie if it misleads people into believing something they would not believe had all the material facts been revealed.  In a recent Congressional race opponents of candidate Kim Schrier, a practicing pediatrician, said that “her practice had been sued” for denying care to patients.  That was a despicable lie of omission because it failed to explain that “her practice” (her medical clinic) was part of a large regional healthcare organization that had been sued and she had no control over what patients were taken or not and neither she nor her clinic were personally sued.

Still, in a civil suit in our adversarial legal system, neither the lawyers nor the parties are required to volunteer information detrimental to their case; again you can hide your cards as long as the failure is not misleading.  The same rules should apply to political speech.  This decision then comes down to a value judgment of whether omission is of an important fact or whether silence or omission leaves a false impression and whether the burden to point out the omission should be on the opponent.  Much political advertising, especially on TV, is false because it leaves out important facts, as discussed below.

Particularly troublesome in the current political climate is Pres. Trump’s accusation that the news media publishes or broadcasts fake news.  To say that news is “fake” is the same as saying it is a lie.  The claim of so-called fake news should be analyzed by the principles and definitions of this article.  And what makes these claims even more troublesome (and annoying) is that Pres. Trump presents no – none, nothing, zero, zilch – evidence or even a single example of such alleged fake news.  How can anyone weigh the truth of such a vague, unspecific and unsupported claims when he doesn’t tell us specifically what falsehoods he is talking about?   Nevertheless the claims of this sort, no matter how outrageous, may stick, at least in the minds of those of Trump’s followers and others who do not require evidence.  When Trump accused Pres. Obama of wiretapping his telephones, totally without evidence, one is left to wonder if that claim was itself a lie, that is, that Trump knew that there was no evidence for it, that it was therefore false, but that he made the accusation anyway.

All political candidates — and the media as well — should be held to the test of these rules and no candidate should be called a liar if all the elements defining a lie are not met. Reckless claims that someone has lied must be condemned.

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