Turning a Blind Eye: Perjury in Domestic Violence Cases
![handle is hein.journals/nmlr39 and id is 155 raw text is: TURNING A BLIND EYE: PERJURY IN DOMESTIC
VIOLENCE CASES
NJERI MATHIS RUTLEDGE*
INTRODUCTION
Accurate testimony is essential to maintaining integrity and justice in the
criminal system.' As the Supreme Court stated in In re Michael, all perjured
relevant testimony is at war with justice, since it may produce a judgment not
resting on truth. Therefore it cannot be denied that it tends to defeat the sole
ultimate objective of a trial.2 Perjurious testimony poses one of the greatest threats
to the judicial system. Although perjury3 charges would seem a logical and
uncontroversial solution for addressing false statements, the issue becomes murky
when false statements arise in domestic violence cases. Expressing frustration over
domestic violence cases generally, Judge Atlas commented, [i]t is simply
unacceptable for our process to turn a blind eye to the dangers of such abuse by
shrugging our shoulders and saying that nothing can be done within the framework
of existing law.4
False statements in domestic violence cases are a significant problem and
considered an epidemic with an estimated 40 to 90 percent of domestic violence
victims recanting.5 Recanting refers to the act of trying to take back or withdraw a
prior statement.6 Because recanting involves an attempt to withdraw a prior
statement, it almost always involves falsity in either the original or latter statement.
* Associate Professor of Law, South Texas College of Law. B.A., Spelman College; J.D., Harvard Law
School. I would especially like to thank Leigh Goodmark, Maxine Goodman, Shelby Moore, Adriana Reyes-
Villanueva, Willie Rutledge, Jr., and Keisha Smith for both their encouragement and invaluable comments on
several prior drafts. I am also grateful for Professors Henry Chambers, Meredith Duncan, Adele Morrison, Sharon
Finegan, Adam Gershowitz, Asmara Tekle Johnson, Christine Jones, Song Richardson, and Linda F. Harrison for
their insightful comments. Excellent research assistance was provided by lead assistants Kenyata Mathews and
Jared Cardiff as well as Lihn Dang, Asma Din, Nehal Shah, and Lindsey Marks. Also, my thanks to workshop
participants at the Southeastern and Mid-Atlantic People of Color Scholarship Conferences, the Lutie A. Lytle
Black Women Law Faculty Writing Workshop hosted by the University of Denver, Sturm College of Law, and the
SEALS New Scholars workshop for the support and helpful discussion of some of the issues in this Article. Special
thanks to the editors of the New Mexico Law Review for their thoughtful comments and hard work.
1. See Joseph A. Shifer, Perjury, 43 Am. CRIM. L. REv. 799, 799 (2006).
2. In re Michael, 326 U.S. 224, 227 (1945).
3. Perjury is defined as deliberately making false or misleading statements while under oath. BLACK'S
LAW DICTIONARY 1175 (8th ed. 2004). A person does not have to testify at trial to commit perjury. One of the more
common forms of perjury in domestic violence cases occurs when victims recant prior sworn statements made to
police officers or grand juries.
4. People v. Santiago, No. 2725-02, 2003 WL21507176, at *16 (N.Y. App. Div. Apr. 7,2003).
5. Tom Lininger, Prosecuting Batterers After Crawford, 91 VA. L. REv. 747, 768 (2005) (Victims of
domestic violence are more prone than other crime victims to recant or refuse to cooperate after initially providing
information to the police. Recent evidence suggests that 80 to 85 percent of battered women will recant at some
point.); see also Douglas E. Beloof& Joel Shapiro, Let the Truth Be Told: Proposed Hearsay Exceptions to Admit
Domestic Violence Victims' Out of Court Statements As Substantive Evidence, 11 COLUM. J. GENDER & L. 1, 3
(2002) (describing non-cooperation by recantation and failure to appear as an epidemic in domestic violence
cases); Lisa Marie De Sanctis, Bridging the Gap Between the Rules of Evidence & Justice for Victims of Domestic
Violence, 8 YALE J. L. & FEMINISM, 359, 367-68 (1996) ([V]ictims of domestic violence are uncooperative in
approximately eighty to ninety percent of cases.... [Tihe victim will usually recant her prior statements....). Most
of the estimates regarding recanting appear anecdotal, since there is no known study measuring victim recanting.
Certainly, some domestic violence victims are eager to assist in the prosecution of their batterers. There is, however,
a consensus in the literature that recanting is a significant problem in domestic violence cases.
6. BLACK's LAw DICTIONARY 1295 (8th ed. 2004).](ViewImageLocal?handle=hein.journals/nmlr39&div=13&collection=&method=preview&ext=.png&size=3)
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Turning a Blind Eye: Perjury in Domestic Violence Cases
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