Article for Bar News:
The Truth, The Whole Truth, or Something Like The Truth
In family law the rules of evidence only apply at the discretion of the Court. It is not uncommon for a case to come down to the Court’s interpretation of he-said vs. she-said, where all semblance of the truth has the potential of disappearing. As attorneys, pursuant to Professional Conduct Rule 3.3, we have an ethical obligation to present the truth to the Court. This article is not about nuances of each party’s perception of the truth, but rather when one party purposefully commits perjury in an effort to persuade the Court to enter an order in their favor.
Family law cases lean heavily on the subjective interpretation of events of each party. Due to the nature of the family court system the potential for perjury is great. Often times, perjury ends up being overlooked by the Court, and at times condoned by attorneys who fail to ensure all representations they make on behalf of their client are accurate to the best of their client’s knowledge and belief. Professional Conduct Rule 3.3 requires us all to correct the record if we learn that a representation made to the court was not fully accurate.
As family law attorneys, we are often required to make offers of proof as to what our client and/or potential witnesses would state if they were testifying before the Court under oath. The Court has taken affirmative steps to reiterate the importance for parties to make sure that the representations being made to the Court by their attorney are accurate and truthful, including swearing the parties in prior to any offers of proof being made.
Therefore, it should follow that when we, as attorneys, are able to prove that a party perjured themselves under oath, the Court should immediately refer the matter for prosecution. However, from experience, it is not that simple.
Over the last year this firm has experienced two separate and distinct cases with issues relating to perjury. Both instances have been proven beyond a reasonable doubt with documentation after the fact; however, the issue went unheeded. This resulted in the offending party being awarded for their conduct while providing no relief to the party who incurred additional legal expenses and emotional distress in an effort to reveal the truth. The reality is that the party who is willing to lie under oath is often times rewarded while those who attempt to tell the truth are not.
Attempting to explain the realities of our family law system to clients is devastating since it is they who have to endure the consequences of the lies relied upon by the Court. The truthful party is left with the feeling that the truth does not matter. The system leaves the person who told the lie with a feeling of empowerment and allows others to believe that they can lie and get away with it. That is not how our justice system should work regardless of what type of case or how the facts are being presented to the Court.
In an effort to preserve the integrity of our practice, those who commit perjury must be referred for prosecution to the fullest extent of the law. One issue is the lack of a readily available procedure as to how a party can be referred for prosecution. My firm has recently been able to convince a County Attorney’s Office to pursue criminal charges against a party who blatantly lied to the Court about a material fact for the sole purpose of deceiving the Court in an attempt to procure a more favorable outcome.
In one of the cases referenced herein, the Court admitted that it could refer the matter to the County Attorney’s Office for prosecution, but refused to do so, insisting that counsel could pursue the claim. Based upon the Judge’s instructions, the firm pursued the perjury claim, first with the local police department and then directly with the County Attorney’s Office. It took the drafting of several letters to the County Attorney’s Office asking that they prosecute. Finally, with the provision of transcripts of the hearing where the perjury occurred, transcripts of the testimony of the offending party’s then counsel (who withdrew upon learning of the blatant lies told by the party in question) and documentation to disprove the statements made by the party, the County Attorney’s Office accepted the case and the offending party was indicted for Perjury. Her criminal matter is still pending.
The process took months and hours of work, when in reality, it should not have been so difficult. Unfortunately, what happened in this case demonstrates that the Court is not willing to refer matters of perjury on their own, instead placing the burden upon counsel for the innocent party.
The solution is simpler than one may think: Attorneys have to start reporting issues and taking any and all necessary steps to ensure that perjury is taken seriously. This includes requesting Orders from the Family Division to refer perjury issues for prosecution to the County Attorney’s Office. The more we demand action, then the more likely Courts will start the referral process and it will not come down to us attempting to enforce the law.
We have an ethical duty to present the truth to the Court, therefore, we have an ethical duty to report perjury, and seek prosecution. Even more so, when we discover it is our client who has perjured himself/herself, we must also take the necessary steps to correct the record and withdraw from the matter. It is the only way to preserve the integrity of the Court system and to ensure that the only evidence being presented to the Court is the truth, the whole truth, and nothing but the truth, not something like the truth.
Mary E. Gaiser and Shaunna L. Browne are attorneys with the Law Office of Shaunna L. Browne, located in Manchester. They are a full service family law firm servicing all communities in the state.