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UC Law Journal

Stuart P. Green

Abstract

This Article seeks to describe the relationship between the criminal law and various concepts of deception. Deception is defined as the communication of a message that is intended to cause a person to believe something untrue. Three different kinds of deception are identified: (1) lying (deception that involves an assertion and is literally false); (2) non-lying deception, or mere "misleading" (deception that requires neither an assertion nor literal falsity); and (3) falsely denying (deception that occurs in the context of a person's denying some accusation of alleged wrongdoing). This Article argues that, other things being equal, non-lying deception tends to be viewed as less morally wrongful than lying, and deception that involves false denials tends to be viewed as less morally wrongful than deception that does not involve such denials.

This Article then attempts to show how these moral distinctions play out in the criminal law. For example, a defendant cannot be convicted of perjury or false declarations unless it can be shown that she has made an assertion that is "literally false"-i.e., that she has lied. By contrast, conviction for crimes such as mail fraud, securities fraud, and false pretenses requires only that the defendant have engaged in conduct or speech that is "deceptive"-i.e., there is no requirement either that there be an assertion or that it be literally false. The special moral status of falsely denying, moreover, helps explains why the judicially created "exculpatory no" doctrine flourished for many years, at least until its repudiation in the Supreme Court's recent decision in Brogan v. United States.

This Article concludes with an assessment of the moral and legal status of various statements made by President Clinton in connection with the Monica Lewinsky scandal and the pardon of Marc Rich.

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