Ask a lawyer 03: Depositions

Last Updated on May 11, 2022 by Fair Punishment Team

In this episode, Blaine Clooten invites Andrew McGuire to discuss some of the top questions coming up around false accusations.  

Some of the highlights they hit on are: 1. Can you press charges against someone for making false accusations? 2. How to stop someone from making false accusations3. What to do when someone makes false accusations against you4. How to prove false allegations in court5. false accusation law6. What is the penalty for false accusation? 7. Can you go to jail for false accusations?If you’re interested in listening to this episode, you can do so by heading over here and listening or the transcript is below for your reading pleasure.  Enjoy the listen (or read) and we’ll see you next time!


Blaine Clooten:All right. Three, two, one, go. This is Ask A Lawyer with Blaine Clooten, and we’re ready to get moving. I’ve got Andrew McGuire in studio with me today or in a studio from an undisclosed location, the same as me, an undisclosed location. I’ve asked Andrew to join in this podcast today. He’s on the team with me and he’s going to help facilitate with one of these Ask A Lawyer sessions. So Andrew, why don’t you go ahead and introduce yourself to the folks?Andrew McGuire:Yeah, thanks Blaine. We have started, my job responsibility here is going to be helping on the backend with the website and making sure that we’re generating the right content of what you’re interested in, and when there are questions that do come in, making sure that we organize that the right way and come back to you in a conversation like this, that we’re about to have, on one of the big question topic that has come up quite a bit.Blaine Clooten:Okay, so you’ve got a topic area that’s a big topic that you’re getting over and over. What are we talking about today?Andrew McGuire:False accusations and there’s a lot of different layers to it. It also seems like people have it happen to them and then there’s a lot of, “I have some questions around the law related to false accusations and if there is such a false accusations law,” and variety of other topics we can get into, but the headline is what are false accusations?Blaine Clooten:All right, what are false accusations? Why don’t you tell me, what do you think false accusations are?Andrew McGuire:Well, for everybody … I’m not a lawyer, I should have started with that. I am one of you, which it means I don’t know a whole lot about the law. The whole point of Fair Punishment is to help us better understand some of these questions. As Blaine said in the first episode, this is not legal advice. This is just for educational and entertainment purposes. To me, when I think about false accusations as an individual, I of a lot of things. I mean, I think of political things that have come up over the last few years, I think about someone telling basically a lie. I think of false accusations as you’re lying about what I did or did not do. I don’t know if there is a clear definition legally, but if you’re going to make a false accusation about me, it comes off in a few different flavors. That’s the way I think about false accusations.Blaine Clooten:Great. You raised a good point, so let’s back up for a second. I did say it in the first episode, but we’ll probably have to make the disclaimer at the top of every episode that I’m an attorney, but I’m not your attorney. So, if you have more legal questions at the end of this, please do contact an attorney. This is general purpose, general information only. It’s in the context of to be helpful and get you pointed in the right direction, but it should not be your endpoint in your journey, it should be the beginning.Blaine Clooten:I really like what you just talked about with false accusations and in general, people’s understandings of them. In my experience, the way that false accusations usually crop up initially is in two contexts. One is in a criminal context and one is in a civil context. While I haven’t done an episode yet on what’s a civil case versus what’s a criminal case, it’s probably good to back up for a second and talk about that just briefly. So, Andrew, do you have any idea about the difference in what would make a case civil versus criminal?Andrew McGuire:Well, the first thing I think about criminal, I’m going to go to jail, and civil means I’m going to have to pay a lot of money if I did something wrong.Blaine Clooten:You should have been a lawyer because that’s very…Andrew McGuire:I don’t want to be a lawyer. I’d have to go to law school, I don’t like school.Blaine Clooten:Well, I think that that’s a really close definition, you’re right. So, in a criminal case, there is a criminal penalty that attaches, fine, imprisonment, both. The difference in a criminal case is who’s actually bringing the action. So the person that’s bringing the action in a criminal case, or the entity, is the government. From state to state, that varies about whether it’s the state bringing the action, the people of the state, what the caption reads can vary from state to state, but at a fundamental level, it’s the government that’s bringing the action. In a civil case, the difference is we have two private entities that are bringing an action, and there’s no possibility of jail from that civil case.Blaine Clooten:Now, it’s not to say that some allegation or some factual component of the civil case may not lead to a criminal case, but off the top in the civil case itself, there is no possibility of jail in the civil case. Then yes, the remedy as we call it in the case, is usually a fine, but it can also be another type of relief. So, it can be an injunctive relief, “You shall not do this anymore,” kind of an action. It could be awarding a person to piece of property or to enforce a specific type of contract. But the remedy at law varies in the civil case, but it’s not going to be imprisonment.Blaine Clooten:So in the false accusation context, it’s important to understand the difference about whether the government is making an accusation that you deem to be false or is a false accusation, in fact, versus whether it’s another private individual that is making the false accusation against you. So broadly speaking, in general, if we have a person and it’s the government or a police officer, can you imagine a police officer coming up and repeating a false accusation? I guess, have you ever had a false accusation by a police officer made against you, Andrew?Andrew McGuire:Not against me, no. I have been pulled over a few times and I would call it a true accusation. I was going too fast. I won’t say where or how fast, but I don’t know if that’s the opposite of a false accusation, but I was definitely going too fast and he had evidence, he had it on the speed gun.Blaine Clooten:So yeah, that would just have been an accusation, innocent until proven guilty, at that point until you ultimately … whatever happened with the case. I’m not asking you to disclose that, but-Andrew McGuire:No, I had Harvey Specter from Suits on my side.Blaine Clooten:Okay, it’s an Inside Baseball reference, if you watch that show.Andrew McGuire:Yeah, you got to watch the show.Blaine Clooten:So yes, that would’ve been an accusation at the time, but yes, so the idea is if you have a police officer or law enforcement official of some kind, that’s making a false accusation against you, it’s going to be my answer to a lot of questions and you can imagine where I’m going with this. You need an attorney because anytime when you have the possibility of jail attaching, you need an attorney. What were you going to say?Andrew McGuire:I was going to say, all the questions I have under false accusations, how can I prove my innocence when I’m falsely accused? Obviously your answer’s going to be, you need a lawyer. Or how do I stop someone from making false accusations? And you can’t really stop someone from doing that because individuals are going to make their own decisions. But I think the biggest question underneath all this is how do you really stop someone from not making it, but proving your innocence? How can I prove that I’m innocent when I’m falsely accused outside of, yeah, of course, I need to go get a lawyer to help me do that because they understand the law, but what else can I do? Or is that really it?Blaine Clooten:Well, how do you prove a negative? If something isn’t happening, how do you prove that it doesn’t exist? You see what I’m saying?Andrew McGuire:Yeah. I understand, you have to find the data to back it up.Blaine Clooten:So, if I’m trying to prove something is false and it’s a criminal context, then you need to just shut your mouth and listen to the attorney because anything that you say is going to be used against you, whether you think it’s helping your case or not, it’s probably hurting you. If you’re opening your mouth and your lips are moving, you’re probably hurting your case in a criminal case. Don’t try and prove your innocence in a criminal case, just shut your mouth and listen to your attorney.Blaine Clooten:But let’s say it’s a civil case. How do you prove your innocence? In my experience, more people do harm than good in trying to prove their innocence in a civil case. So, I think one of the most common examples of this is Facebook. So, Facebook and other social media platforms allow people to post stuff online and there’s no mechanism in place that is a truth barometer or any temperature gauge about whether what you’re posting is true, or false. So, there’s no independent mechanism.Andrew McGuire:I hear you, but now we’re getting into fake news and where you get your facts from and what does true really mean, which is not where you were going, I don’t think, but it is a whole other topic that we could get into.Blaine Clooten:Well, I was going to keep it in the … because some of that fake news stuff is a First Amendment issue. So, I’m not talking about it in that context because there is still freedom of speech and you still have the right to make a statement. You just can’t make a knowingly false statement that injures another person.Andrew McGuire:Got it, okay.Blaine Clooten:So, let’s think about this in the terms of Facebook and not in the sense of news, where somebody’s broadcasting a false story. I won’t say which network, because I think all networks at this point are guilty of sensationalizing the news. So I’m not going to get into that. I’m not picking a aside about who’s right or wrong in the news, they’re all wrong in my opinion. But Facebook, if you have a private individual, that’s posting a false story about another individual, what do you do? There’s a couple steps you can take and actually, Andrew, I think you can talk to this a little bit. So, one is you can contact Facebook and ask them to take the story down as untrue. I don’t know if you’ve had any experience or know anybody that’s done that before?Andrew McGuire:Yeah, I have. That’s why I wanted to make sure we weren’t going down the rabbit hole of fake news and end up in a political spiral of discussion.Blaine Clooten:No.Andrew McGuire:So yes, in the context of knowing that this story that’s being posted about me personally, or about something that I know to be … this is just incorrect, you could take it down, yeah, that’s something that you can do with Facebook and they will, by double clicking into it, figure out if that is true or false. But there’s no law, there’s no Facebook law that says, “Here’s the source of truth for everything.” So therefore you have to have … and back to my point earlier, about you have to have facts to back it up, whether it’s facts or data and that’s it.Blaine Clooten:So, that’s a good point. There is no single source. There is no single point and that’s what makes Facebook so difficult. So, in my opinion, and Andrew, I want you to speak about this here when I give this thought, I think that people can generally do more harm than good by starting to try and attack those stories that are coming out on Facebook. What I mean by that is if a story comes out on Facebook about you, let’s try and take a hypothetical here. So, let’s say that I live in a small city in Oklahoma and within my small city, another person who knows me is making a comment about me having an extramarital affair.Blaine Clooten:I respond to this Facebook post about this extramarital affair vehemently denying that I’ve ever had this extra marital affair with this person and I just go on an extreme defensive, or maybe I go into attack mode, but what is that signaling to the other person? Well, where there’s smoke, there’s fire. Why are you being so defensive? In my experience and in my opinion, the best thing that you can do with most false accusations in the civil context is to just leave it alone, let it sit and ignore it.Blaine Clooten:It’s the same thing as the bully that you would do in grade school. If the bully’s bullying you, you just ignore him. You take away his fuel. I’m saying he, he or she, he or she could have been … she could have been my bully against me. When I was bullied, it was male. But the best way to deal with the bully is to ignore it and that takes away their fuel. I think that that’s also true if you’re being harassed on Facebook, but why don’t you talk about that a little bit?Andrew McGuire:Yeah, true and false, everybody has their opinion about this and that’s, it depends on the person and you’re right, there are Facebook bullies, and I never really thought about it like that, but people that are going to bully you digitally care about their digital selves, more than their real selves, in-person self, and you have all these accusations flying around because people can comment on anything and give their opinion, which may be fact or fiction. We just don’t have a rule book for it which is why, back to false accusations here, you can comment on anything and tag anyone and try and start a fight. If they reply back, then you start a whole thread and then who knows who’s reading it?Andrew McGuire:That’s the other thing because this happens quite a bit on Facebook where you have someone posting their opinion, then there’s no penalty. What is the penalty for a false accusation? There’s zero penalty for that until proven otherwise. Even then, I mean, we haven’t even gotten into that, but it’s not like there’s a Facebook jail. Can you go to jail for false accusations? No, it’s just, that’s my opinion, and then this is what I think happened. Or I accuse someone of something, but I don’t think you can black and white say this is true or false. Then we end up in this gray area, which is again, problem with Facebook. I don’t know how we ended up talking about Facebook so much, but I just feel like people are starting to care more about their digital selves than their real selves because of the COVID world we’re in and a variety of other things. But that’s where now, I feel like there’s been this … if you looked at a chart, you’ll see it going up and to the right, a number of false accusations.Andrew McGuire:If you could take all the things that are happening, it was very different when it was in-person. Now, it’s much easier to accuse someone of anything digitally on these platforms. So, there’s false accusations everywhere, which is why we’re talking about this, because it seems like it’s just continuing to increase in volume in so many different areas of our lives that you create this problem that you cannot solve easily because there’s no rule book.Blaine Clooten:Well, I brought up Facebook. It was my fault. The reason I brought up Facebook is because it’s the most common example that I see. So, we’re not in olden times where people are smearing each other in the newsprint anymore, or going into the town square and shouting and saying that this person is doing this act that’s against the rules or something like that.Andrew McGuire:Blaine came into my house and he … Yes, none of that is happening at the town square. It’s all yelling loudly, digitally now.Blaine Clooten:Right. So my idea anyway with Facebook, or why we’re seeing it more commonly on Facebook as opposed to anywhere else, or I mean, you could pick Twitter. I’m picking on Facebook, but my point is taken that I go back to the very beginning. If somebody’s making a false accusation against you and potential criminal penalties could attach, then you need an attorney, but if they’re making false accusations in a digital context, then the question is what are you going to do to respond? Does responding add more fuel to this digital bully’s fire? Or are you going to take an action to try and file the civil lawsuit and try and prevent them from doing this online anymore?Andrew McGuire:But can I do that? Could I take, basically screenshot, this accusation that I deemed false on Facebook and go create some civil lawsuit for being falsely accused?Blaine Clooten:So, there are two basic laws around false accusations in general. They’re in under the laws of defamation, so there’s libel and slander. So slander is spoken, libel is written. So, what people are writing on Facebook would essentially be libel unless, I mean, they’re posting a video and then maybe it’s both, but in this context if they’re making a Facebook post, the next step is that what they’re saying is false and it’s knowingly false and that there was damages.Blaine Clooten:The biggest problem that most people have in these cases is proving what the damages were. They can’t just be that it hurt my feelings, or it caused me distress, generally. I mean, maybe there’s a scenario where you could reach that level where it was so distressful that it caused you in injury, but we need a real concrete injury.Blaine Clooten:The only other thing that you’re trying to do is not sue the individual who made the statement, but you’d be suing Facebook for injunctive relief, to have them remove that person from the platform or to remove the statement itself as untrue. But it’s like if you’re going through all that effort to get that done, your energy would probably be better spent somewhere else.Andrew McGuire:You’re talking about penalties and fines, but can I go to jail for falsely accusing someone?Blaine Clooten:So, different states have different rules on these areas. So you can get a version of a digital harassment. It’s also referred to as a telephonic harassment, but there’s also an online type of harassment and that can be a criminal penalty. If you’ve told the person to stop … It usually has to do with unwanted communication, that the person is continuing to communicate with you after you’ve told them to stop.Blaine Clooten:Another version of it is outright harassment, which is a criminal law in almost every state. Usually, they have different types of harassment that occur. So, it can be a physical harassment, like an offensive physical contact. There’s a verbal harassment, so it’s going to depend on the nature and extent of that harassment and what was actually being done. So, there are some different potential criminal penalties that exist. That’s assuming that nobody’s threatened an overt act against you, like a menacing where they’re saying, “I’m going to hurt you.” What we’re talking about is simply a false accusation. There are potentially criminal remedies, but they’re few and far between, and they’re very hard to prove, especially when you have that First Amendment privilege.Andrew McGuire:Yeah. Okay, got it. Well, I mean, those were all my questions around false accusations. We could keep going, but I feel like-Blaine Clooten:Well, I’ll call it then, obviously, right?Andrew McGuire:Yeah. All my questions have been answered. All I heard was, “Go get a lawyer. If you have someone falsely accusing you of something, that’s what needs to happen.Blaine Clooten:Well, that’s probably true. If somebody is making a false accusation against you, you should probably talk to an attorney.Andrew McGuire:Yeah, you should.Blaine Clooten:Realistically.Andrew McGuire:I’m not even an attorney.Blaine Clooten:Yeah. All right. Well, let’s wrap this episode up for today. Thank you Andrew for joining. It’s super helpful to have you giving some context, some clarity and some questions. So, if they want to hit us up to ask a question, where should they go?Andrew McGuire:They should go to Twitter @mylegalcenter, hit us up. We will answer your questions.Blaine Clooten:Ask more questions, and we will answer your questions live, recorded on air. This has been Ask A Lawyer with Blaine Clooten and Andrew McGuire.Andrew McGuire:Thanks for having me, Blaine.Blaine Clooten:All right, thank you.