Tuesday, February 1, 2011
Tung Yin, Lewis & Clark Law School, has published Independent Appellate Review of Knowledge of Falsity in Defamation and False Statements Cases, at 15 Berkeley Journal of Criminal Law 330 (2011). Here is the abstract.
Although we are used to thinking that criminal defendants receive more procedural protections than civil defendants do, this notion turns out to be incorrect when it comes to appellate review of civil defamation verdicts versus criminal convictions for false statements, where the key issue is the defendant's knowledge of the falsity in question. The civil defendant gets the benefit of what the Supreme Court calls "independent appellate review" of the existence of actual malice in a defamation case, which is to say an aggressive standard exhibiting little to no deference toward the factfinder's determination. The criminal defendant, on the other hand, is saddled with a standard of review that is highly deferential toward the factfinder; the criminal defendant must show that no reasonable jury could have found that he knew the statement to be false. A person who is sued successfully for slander and convicted of making a false statement for the same utterance to a federal agent could therefore find himself in the odd situation of winning the appeal in the civil case and losing it in the criminal case, simply because in the former instance, the appellate court could more freely reject the jury's knowledge of falsity finding, whereas in the latter instance, the appellate court would be essentially bound to the jury's determination. In this Article, I ask whether the same duty of independent appellate review of the knowledge of falsity should apply in criminal cases that involve false statements. Answering that question requires an examination of the First Amendment principles underlying the actual malice rule and the independent appellate review doctrine to see if the same concerns arise in the criminal context. Ultimately, I conclude that in at least some instances, First Amendment values call for extending the independent appellate review doctrine to criminal cases.
Download the article from SSRN at the link.