Is Lying Permitted in a Broken System?

Associate Professor Thea JohnsonBy Associate Professor Thea Johnson

I am, admittedly, a crime drama devotee, and I’ve written on this blog before about portrayals of the criminal justice system on prime-time TV. I’m excitedly tuning into a new show that tackles the criminal system from a novel angle and also speaks to some of the themes I’m tackling in my scholarship. The show is called For Life and it follows the struggles of a New York State prison inmate who has managed to get his law degree while incarcerated and, when the show begins, is fighting for his freedom, as well as the freedom of his fellow inmates. In the first episode the main character, Aaron Wallace, represents a wrongly convicted man in a post-conviction appeal. Wallace himself is wrongly convicted and that serves as the central drama of the show. (There is also a podcast associated with the show about wrongful convictions).

In trying to win the case Wallace engages in some unsavory tactics. Namely, he forges a document to be introduced into evidence. Spoiler alert: the trick works and his innocent client is finally freed from an undeserved prison sentence. The justification for Wallace’s fraud is the backdrop of the entire show – the criminal system itself is broken and unfair.  Seen this way, Wallace’s deceit may be an evil, but it’s a lesser evil than what the criminal system has done to these innocent men. Indeed as we watch the first episode we are to understand that through these untruthful tactics, Wallace is able to achieve a truthful result.

The themes of the episode interest me because in my current work-in-progress, Lying at Plea Bargaining, I am exploring the “lesser-evil” justification for the lies we tell at plea bargaining. What does it mean to lie in order to get to a higher truth? What if we think of truth not as accuracy, but as justice? This seems to me to be what motivates the practice of lying at plea bargaining that I identify in my article. Depending on one’s perspective, the criminal justice system has produced a litany of injustices. Implicitly authorized, systemic lying[1] has become one means of dealing with these perceived injustices. For instance, lying assists stakeholders in avoiding the results of unfair laws or inequitable outcomes. Untruthful plea bargains allow defendants to avoid sex offender registration, deportation, severe prison sentences, or fines. In some cases, untruthful pleas have allowed innocent defendants to avoid the death penalty. This is the terrible juxtaposition of truth and justice that our modern system has produced: sometimes lying is the only way to escape injustice.

This Article explores lying at plea bargaining by identifying the conditions that make such lying possible and then breaks down the types of lies one sees at plea bargaining. I lay out a taxonomy of plea bargaining’s lies. The taxonomy includes five types of lying: fictional pleas, pleas to crimes that do not exist, fact bargaining, Alford pleas, and the guilty pleas of innocent people. The lies listed in my taxonomy are not uniform, but they have some features that link them. Like the lies identified by Julia Simon-Kerr in her piece, Systemic Lying, plea bargaining’s lies often involve the participation of multiple actors and are done for the purpose of achieving some vision of justice held by the parties. The purpose of these lies is to allow for the efficient and fair administration of justice in a system that the actors view as flawed. In addition, plea bargains based on lies do not reflect the parties’ understanding of the truth of the defendant’s conduct. Meaning that, at least one or more of the parties – defense attorney, prosecutor or judge – genuinely believe that the plea is not a reflection of the defendant’s conduct and yet allow the plea to proceed.

The article uses this taxonomy to illustrate several lessons about the criminal justice system, but one of them is what I call lying’s “lesser-evil” problem. The theory goes that lying – an evil – is still a lesser evil than the alternative to not lying in certain cases. If the defendant will be deported from the country based on a low-level drug offense, leaving his children orphaned, then the lesser evil may very well be to create a false plea that allows the defendant and his family to escape this fate. In this scenario, the liars – defendant, defense attorney, prosecutor, and sometimes judge – may be committing the bad act of lying, but they are doing it for a higher purpose in an individual case. This argument, however, ignores the harm that lying does to the system at large and to the individual actors who engage in or observe the lying. By excavating these other harms, the article questions whether the lesser-evil model can continue to hold the weight of plea bargaining’s lies.

The question then is, even if lying at plea bargaining achieves some often socially valuable benefit in individual cases, what harm is caused by lying at plea bargaining and should that harm change our perception of the lesser evil argument?  My focus is twofold. First, I look at lying at plea bargaining from the system-wide level. What sort of harm does this lying at the individual level do to the system writ large? When looked at this way, the lesser evil argument still resonates, but weakens.  Second, on an individual level, what harms can befall the stakeholders who engage in lying? In this case, I compare individual harms – the harm experienced by the defendant versus the harm experienced by the lawyers who lie, the victims who understand the defendant has lied and the other defendants who have not had the benefit of lies themselves. I explore harms that may not be incorporated into the lesser-evil explanation for lying at plea bargaining to push back on a narrative that lying at plea bargaining is always a lesser evil to some alternative. Lying still has certain benefits in a system that produces many terrible results, but it’s worth thinking about what harms lying causes even when there are benefits.

To be clear, I was rooting for Wallace to win – lies and all! And I’m keeping my fingers crossed that the show gets picked up for a second season. The acting is terrific, the topics are timely (a progressive prosecutor running to unseat an incumbent DA!), and the overarching questions that the show raises about prison, trials, and plea bargains are critical.


[1] I borrow this term from Julia Simon-Kerr, who coined the term in her piece, Systemic Lying, 56 Wm. & Mary L. Rev. 2175 (2015).