Evidence of Perjury Cannot Be Used to Appeal a Fraudulently Obtained Restraining Order

Posted on May 1, 2016


Someone once told me that the only value of a lock is to keep an honest man honest.

The value of perjury statutes is exactly the same: They make an honest person extra careful about what s/he tells the court.

To a liar (the person they’re supposed to thwart), they’re just “blah-blah-blah.” Perjury (often recognized as a felony crime) isn’t prosecuted—and for that reason, judges seldom even use the word. If a plaintiff is caught lying, and the lying is significant enough to urge dismissal of the case, s/he may get a stern talking to post-trial. That’s about it.

Restraining order judges make a liberal determination about whether sufficient merit exists in a plaintiff’s claims to warrant upholding a temporary order. Lies irrelevant to that determination may be ignored even if a judge detects them.

Judicial disposition is to credit plaintiffs and suspect defendants, and that’s a high hurdle for a defendant to clear. The defendant also enters the courtroom having been prejudged “guilty.” (Some respondents to this blog report never having been allowed to address the court at all—or being silenced after a few minutes.) Besides their being prejudiced, hearings to finalize restraining orders are, putting it generously, “highly accelerated” trials. Putting it accurately, they’re superficial.

But no allowance for that is made after they’re over.

The only way to have a restraining order that’s based on fraud vacated is to expose lies during the “highly accelerated” trial. That’s why attorney Greg Hession, a strenuous critic of restraining orders (his blog is MassOutrage.com), emphasizes the importance of exposing a plaintiff’s lies and “ulterior motives” during trial: There is no “second chance.”

From Easterling v. Ameristate Bancorp., Inc. (2012):

[I]t is well settled that “[p]erjury in a prior case cannot support a cause of action in a subsequent civil case.” Elliott v. Brown, 2d Dist. Miami No. 10-CA-19, 2010-Ohio-5749, ¶12; see also Costell v. Toledo Hosp., 38 Ohio St.3d 221, 223-24, 527 N.E.2d 858 (1988) (“[A]ppellants have essentially set forth allegations constituting perjury, subornation of perjury, and conspiracy to commit perjury, all of which are punishable under the criminal statutes but which, for public policy reasons, may not be the basis of a civil lawsuit.”).

You can’t appeal a restraining order that succeeded on false evidence on the grounds that it succeeded on false evidence (unless new proof is discovered that you couldn’t have previously brought to the court’s attention). You can’t sue for perjury, either.

Similarly, unless you prevailed at trial, the odds of winning a lawsuit brought for fraud or intentional infliction of emotional distress, for instance, are very low.

You have one window of time in which to expose false accusations (and ulterior motives), and that window is very narrow.

Other countries follow the same policy ours does (in the interest of economy), for example, Canada:

[T]he claim to vacate a judgment on the grounds of perjury cannot succeed unless by new evidence and shewing that the aggrieved party could not by reasonable diligence have been able to discover and bring forward at the trial such new evidence as desired to be presented in the action….

That opinion (in MacDonald v. Pier) was entered almost 100 years ago (hence the antique spelling of showing). It’s etched in stone.

Everyone who’s been fraudulently misrepresented to a judge and railroaded in court is excited to learn the word perjury, because s/he just knew lying under oath had to be a crime.

What s/he might have expected, though, is that perjury, like telling the truth, doesn’t matter.

Copyright © 2016 RestrainingOrderAbuse.com

*To expose false accusations and ulterior motives at trial, it’s essential that defendants insist upon the right to cross-examine (question) their accusers. It’s one thing to say the plaintiff is lying or to try to show that s/he has lied with evidence; it’s another to actually have the plaintiff admit lies (or contradict him- or herself) on the stand in the presence of the judge.