Toward a Communicative Approach to Law- and Rule-Making


Toward a Communicative Approach to Law- and Rule-Making

Philip Gaines

In “The Language of Perjury,” Peter Tiersma (1990) argues for a communicative approach to determining what constitutes the truth or falsity of a witness’s statement in court. Most interesting to Tiersma are those utterances that are “arguably true on one level but false on another” (1990: 374). The example he takes up is a statement made at a bankruptcy examination when Samuel Bronston, the president of a failed movie production company, was asked a pair of questions by the lawyer for one of the company’s creditors:

Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?

A. No, sir.

Q. Have you ever?

A. The company had an account there for about six months, in Zurich. (1990: 378)

As a result of his attempt to mislead the examination board with his second answer, implying that he had not had personal bank accounts in Switzerland, Bronston was tried and convicted of perjury—a conviction that was subsequently affirmed on appeal. When the US Supreme Court took the case, they agreed that Bronston’s answer certainly implied that he had not had personal accounts in Swiss banks but that such an implication did not constitute a perjurious statement. Instead, the Court insisted that the key question was whether his actual statement—the second answer above—was “literally” true or false. Finding that it was true, the Court reversed the conviction.

According to California law, perjury occurs when a witness willfully “states as true any material matter which he knows to be false” (California Penal Code § 118 [1988]). In the federal code version, perjury is committed when a witness “willfully … states … any material matter which he does not believe to be true” (18 US Code § 1621 [1982]). Tiersma’s claim is that for the Supreme Court to have focused exclusively on the literal truth or falsity of the defendant’s actual words is misguided and ignores what the witness meant (Tiersma 1990: 375). For Tiersma, the crucial question is: “How does the speaker intend the hearer to understand the utterance?” Tiersma extensively recruits Speech Act Theory to show that uncovering the meaning of a statement involves much more than analyzing only the words stated. Thus, according to Tiersma, a proper perjury prosecution requires that “the language of perjury statutes referring to what a witness ‘states’ must be construed to include what a witness communicates, not just what a witness literally states by the use of spoken language” (Tiersma 1990: 413). The analysis should include a multifaceted, finely nuanced approach to the communicative intent of an utterance rather than a superficial treatment of the propositional content of a sentence. As Tiersma points out, however, such an approach risks being perceived as impressionistic and “unnecessarily fuzzy” (Tiersma 1990: 413) to those who find security in simply determining the truth conditions of an isolated statement. His point is that if we want to find out what a speaker intended for an utterance to communicate to a jury and whether that utterance was a means to mislead perjuriously, we have to immerse ourselves in the much more complicated milieu of the pragmatics of communication.

Such an insistence on a “thick” (a la Geertz 1973

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