On Blackstone 6: Perjury, the FBI, & Obstruction of Justice

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In Volume 4 of his Commentaries on the Laws of England Blackstone offers an instructive definition of perjury. He defines it narrowly as a false statement of material fact, made in court in front of a judge. He doesn’t count lying in a sworn affidavit, outside the presence of a judge and court, to be criminal perjury. For Blackstone, the formality and majesty of the court, alongside the presence of the judge, were necessary elements for perjury because the court and the judge impress upon the speaker how serious their statements are. The more casual atmosphere that affidavits are drafted in didn’t warrant criminal penalties for perjury because the speaker isn’t on full psychological notice of the penalties of false material statements.

Of course, Blackstone is talking about criminal perjury. And there’s an argument to be made that civil penalties are appropriate when false statements are made in an affidavit. But not jail time. This generally is the approach of courts to perjury in affidavits in civil matters.

What struck me most about Blackstone’s definition of perjury is that it excludes statements made under surprise or duress. Blackstone – an astute psychologist – considers such statements not to be perjury because they weren’t deliberately made in the formal calm of the courtroom.

Reading this I immediately thought of the high pressure, deliberately disorienting and beguiling interrogation techniques the FBI and local law enforcement use when they’ve just raided your house with 30 armed agents. A high-stress situation if ever. One in which a person is prone to confusion and misstatements. As the science, and empirical evidence of innocents convicted because of, false confessions attests.

Despite this, the DOJ and state prosecutors routinely attempt to use alleged misstatements made in the confusing aftermath of a raid as a leverage point in plea negotiations. It’s basic practice with the DOJ to take any misstatement and threaten obstruction of justice charges. Obstruction of Justice sentences run consecutively by default, unlike most counts in an indictment, for which the sentences run concurrently. This means that if you get 5 years for each of your other counts, those will run concurrently and you’ll just do 5 years in jail rather than 50 if you were sentenced on 10 counts. But if you’re convicted on an obstruction charge, that sentence gets tacked on to that five years as additional time you have to serve, unless the Judge chooses to change it to run concurrently. This is another reason there are so many plea deals. Not the sole reason, but one of them.

On Blackstone 7: The Lost Works

For all the Originalists’ trash talk I’m shocked that most of William Blackstone’s writings are out of print. In 2016, Oxford University Press published an

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