Don’t You Better Believe It? The Moral Significance of Lying for Professional Ethics in Light of the Technical Defense in Adversarial Criminal Procedure

Abstract

This article aims to examine whether the so-called «right to lie» exists within the framework of the accusatory criminal procedures. Some defend this right as a necessary extension of the accused’s basic right not to self-incriminate; others, however, argue that the right to remain silent or not to actively cooperate with the prosecutor’s investigation does not imply the possibility of telling lies. Thus, once the accused decides to speak, they are bound to tell the truth, the whole truth and nothing but the truth. Based on a review of the discussion among some of the most relevant thinkers who have addressed the issue of lying (for example, Kant, Constant and Augustine of Hippo), this paper will defend a conciliatory or eclectic claim on the right to lie. We will argue that the debate often turns blurred because moral and epistemic levels are confused when formulating a concept of lying. At the moral level, the notion of lying refers to statements intended to mislead the interlocutor. At the epistemic level, lying consists of intentionally stating things that do not correspond to the actual truth. Therefore, lying is unacceptable from a definition of the moral norms involved; however, in its epistemic aspect, the acceptability of the accused’s lie relates to the exoneration from having to demonstrate the truth of what is being claimed.