The Right to Lie to the Cops

by Anthony Gregory
Jul. 14, 2011

In Casey Anthony’s case we see an example of a grave injustice in the modern system. I’m not talking about her acquittal. When the prosecutor fails to prove someone’s guilt beyond a reasonable doubt, the only responsible thing for the jury to do is refuse to damn the suspect to time in a cage. An innocent person imprisoned is so much worse than a guilty person let go, as in the former instance the state seduces all of society to cheer on and legitimize an injustice. Also, whereas justice for the guilty is at least a metaphysical possibility outside of prison, it is downright precluded institutionally for the innocent on the inside.

The actual travesty here is the offense of which Casey Anthony has been convicted: four counts of providing false information to a law enforcement officer. This should not be an offense in a free society, and I am struck by how little this horror has gained attention in the last week.

Lying in most circumstances is immoral. And lying to cover up one’s crimes might be especially egregious, and arguably criminal in itself. But Casey Anthony was acquitted of the actual crime of murder. As far as the state is concerned, she has not been proven guilty. So why is her dishonesty with the police an offense against the law?

Many can’t even relate to this point as they like the idea of this person suffering at least somewhat for a crime they assume she committed but got away with. Taking it to different contexts, we can see the full injustice involved in criminalizing lying to the police. What if people are lying to protect themselves from persecution? Indeed, when we engage in the thought experiment of what would be a morally acceptable lie, we can’t help but think of such examples as lying to Nazis about Jews hiding somewhere, or lying to cover for a runaway slave. If lying is ever defensible, it doubtless is when the only deceived and harmed persons are agents of oppression, and it is done purely in service of preserving someone’s rightful freedom.

Defending the rights of a runaway slave might seem different from defending someone from the tax man or drug warriors, but this is only a matter of degree. In a free society, there are only laws that prohibit acts of violence against person or property. Anything else is illegitimate. As St. Augustine said, an unjust law is no law at all. In a civilized world, when the state is wrong – arresting and prosecuting people for crimes that are no crimes at all – we should defend the proportional means potential victims of the state employ to save themselves from state oppression. Lying to defend oneself against state injustice should never be punished.

In practice, "obstruction of justice" and "giving false information" are almost always themselves victimless crimes. Bill Anderson and Candice Jackson call these types of offenses "derivative crimes" – offenses contrived out of thin air, used by the state to railroad people whose actual offenses cannot be proven. This trick was used to oppress the ethically innocent Martha Stewart, but even when it is used against a real creep, like Scooter Libby, it is far too dangerous a tool to trust in the hands of the state. No government should be able to jail someone merely for the act of being dishonest with it.

When the right to lie to the state is trampled, the ripples of injustice shake the whole system. Often, police don’t even have a strong case against someone, not even enough to search or arrest him. And so they start probing. They start asking questions, hoping the subject trips up, contradicts himself, and can be caught in a deception. Then this is used as the probable cause on which an arrest and threat of conviction ultimately rely. This is a good reason to avoid talking to police altogether. But it is also a reason to oppose the very doctrine that telling a fib to a cop should in any way, all by itself, be considered any worse than fibbing to anyone else. If someone tells a white lie to a neighbor because he thinks he’s being asked something that is none of the guy’s business, we can criticize this as a minor sin, but it should not be any worse when the police are involved. Deceiving one’s acquaintances can lead to a tangled web of awkwardness and more prevarications. But deceiving an officer should not, in itself, lead to warrantless searches, arrests, and prison time.

There is another principle in play here. No one owes the police anything. Perhaps in very unusual cases it makes ethical sense to cooperate. Surely there are prudential reasons from time to time. But the police are out to round people up, most of them overall non-violent people, and throw them in cages. To do their business, police, like prosecutors, lie through their teeth. It is standard practice. They are trained to do it. Whereas you could make a strong case that as tax recipients and supposed public servants, police should be held to a standard that forbids dishonesty, there should be no legal obligation on the part of the common person to come clean with the state.

The fact that the state gets away lying to the people – about its successes and failures, its intentions in domestic policy, the rationale behind its foreign policy, the strength and content of its evidence in criminal cases – while it makes it a crime for common people to misrepresent themselves to the government is another example of the ultimate double standard that defines the state as what it is. Albert J. Nock called the state a monopoly on crime, and we see it here. Much of what the state does would be illegal if anyone else did it. A fair deal of that would be properly illegal for anyone to do in a free society. But then the state also criminalizes a multitude of behaviors that should be legally protected, as well as generally tips the scales of justice in its own favor every chance it gets.

Without a doubt, if someone cannot be proven to have committed an actual crime, or if someone’s only true offense is against the state’s positive law rather than another individual’s person or property, any lies he tells while the police are doing their investigation should not be illegal. Maybe lying to a cop is in some cases immoral, but if there is no legitimate crime proven other than that, it should not be punished.

See also: Bearing False Witness and Lying to the Cops
Anthony Gregory [send him mail] is research editor at the Independent Institute. He lives in Oakland, California. See his webpage for more articles and personal information.

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