The Right to Lie

In the United States, criminal defendants enjoy a constitutional right against self-incrimination. Commonly known as “pleading the Fifth,” or the right to remain silent, it means they can refuse to testify at trial. But if they do take the stand, they’re expected to tell the truth. Otherwise, they could be charged with perjury.

Not so in Brazil.

Brazilian law also protects defendants from self-incrimination, but the legal system goes even further. Defendants are under no obligation to tell the truth, even if they testify. In practice, this allows defendants to deny allegations without legal consequences. They have the right to remain silent and the right to lie.

“The defendants have the right to remain silent and not to incriminate themselves. In other words, there is no obligation to tell the truth.” That’s according to Supreme Court Justice Alexandre de Moraes, speaking during proceedings in a criminal case involving former President Jair Bolsonaro.

This is because Article 342 of the Brazilian Criminal Code requires truthfulness only from witnesses, experts, accountants, translators, and interpreters. These individuals testify under oath and face criminal charges - up to four years in prison - if they lie. But there’s no such crime or penalty for defendants.

For Americans used to the rules of US courtrooms, this can be surprising. Yet in Brazil, the right to lie is seen as an extension of the right to remain silent. It’s a stark reminder that legal systems may pursue the same goals of fairness and justice but through very different means.