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Lawyers seem to be accustomed to the phrase "reasonably ought to have known."

Lawyers also sometimes have occasion to be concerned with the concepts of honesty and dishonesty.

If you reasonably ought to have known that the sky is blue, but didn't and thought it was green, and said so, when, if ever, would lawyers consider that dishonest?

Glorfindel
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Michael Hardy
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    your example is... a little far fetched because the color of the sky is well known by everyone. – Trish Dec 14 '20 at 20:36
  • @Trish : I did not intend it to be taken fully literally. I meant that if I reasonably ought to have known some particular fact but didn't, would my incorrect statement about it be an instance of dishonesty as lawyers understand that concept? – Michael Hardy Dec 16 '20 at 21:41

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Honesty is about actual knowledge, not "knew or should have known" which is a standard that the law holds people to. In criminal law, "should know" is important because many crimes have a scienter requirement, but you will usually have a hard time proving beyond reasonable doubt that a person had actual knowledge of some fact. It is almost commonplace that people who are not fluent speakers of English "know" things that are untrue and that a "reasonable" person would know to be wrong, such as being confused about the referent of "eye" versus "ear" (tragic, in the context of "___drops"). A reasonable person would not judge a factual mistake as being dishonest, and in general would never impute evil motives (dishonesty) to what appears to be an incomprehensible response (e.g. saying "Yes" to the question whether the sky is green). Lawyers are reasonable people, so they don't actually impute dishonesty to people at a surprisingly higher rate that other reasonable rate.

user6726
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The reason for the frequent use of the phrase "reasonably ought to have known" is that it can be very hard to prove what a person actually did know. Often we don't want to treat as a crime things done by mistake but with good intent, so a law says that it is illegal to knowingly do X. But then anyone accused of X nay say "oh but I didn't know", and how can one prove that such a person did know? So that law says that "anyone who knew or reasonably ought to have known." is considered to have acted "knowingly", Then one need only prove the objective facts and what the classic "reasonable person" would have concluded from those facts. This is a verfy common provision in laws and legal drafting.

Similarly, "dishonesty" is not just saying something false, it is knowingly doing so. If you think the sky is red but say it is blue, you are dishonest.

David Siegel
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when, if ever, would lawyers consider that dishonest?

A reasonable person would consider it dishonest unless there is evidence or knowledge that the one who alleges "the sky is green" has a visual or mental impairment. The person who alleges that "the sky is green" would be suspected of malingering (or more generally, of bad faith), since --by default-- there is no other credible explanation for his departure from a common notion.

Iñaki Viggers
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    There are unusual but actual whether conditions in which the sky appearts greenish. – David Siegel Dec 14 '20 at 21:26
  • @DavidSiegel Sure, but that would not be a departure from a common notion. The reasonable person would bear in mind the particulars of the specific/unusual context, thereby concluding that one's explanation for saying "the sky is green" is credible (honest). – Iñaki Viggers Dec 14 '20 at 21:39
  • But I did not intend the phrases "the sky is blue" or "the sky is green" to be taken fully literally. I meant there is some fact that the person reasonably ought to have known, about which he made a false assertion because he didn't know. – Michael Hardy Dec 15 '20 at 16:54
  • @MichaelHardy "But I did not intend the phrases "the sky is blue" or "the sky is green" to be taken fully literally". I know. I think the analogy you used in your question is a good one. That being said, a person's honesty and knowledge do not always go hand in hand with whether others perceive him as being honest. Your question is about the latter. Hence why I touch on the concept of credibility, which pertains to others' reliability on the person's representation. – Iñaki Viggers Dec 16 '20 at 11:31
  • Have you confused "malingering" with another word such "malice", or is there some meaning of it that I am unaware? – Acccumulation Jun 29 '21 at 03:26
  • @Acccumulation Both malingering and malice entail the person's knowledge that his intentional representations are false. The concept of malingering is just a special case of malice. The term malingering suggests a context of person's own suffering --whether false or exaggerated-- of some condition, whereas the term malice is more general and the falsehood does not even need to be about the person making the misrepresentation. I used the term malingering in this answer apropos of the OP's example of a person's representation(s) about his own sensorial perception. – Iñaki Viggers Jun 29 '21 at 08:32
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Dishonesty is defined in

Crimes Act 1900

4B Dishonesty

(1) In this Act--

"dishonest" means dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

(2) In a prosecution for an offence, dishonesty is a matter for the trier of fact.

The suggested direction in the NSW Criminal Bench Book (A crib book for judges) for the fraud of obtaining property includes:

The Crown must prove beyond reasonable doubt that in deceiving [the victim] in the manner alleged and so obtaining the property, the accused acted dishonestly. Dishonest in this context means that the accused acted dishonestly according to the standards of ordinary people. You as ordinary members of the community determine what is dishonest conduct. You must not only find beyond reasonable doubt that the accused acted dishonestly in deceiving [the victim] but also that [he/she] knew that [his/her] conduct was dishonest according to the standards of ordinary people.

[If necessary add

A person may obtain property dishonestly even if [he/she] is willing to pay for the property.]

Dale M
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If you reasonably ought to have known that the sky is blue, but didn't and thought it was green, and said so, when, if ever, would lawyers consider that dishonest?

One of the concepts that is widely used and most extreme involves cases of "willful blindness" in which the person deliberately refrains from obtaining information he or she should reasonable know in order to lack actual knowledge of it, even though the person who is being willfully blind believes that the information in question is something that he or she would be at a disadvantage if he or she actually knew.

So, if you believe fraud is probably occurring, but make a point of never examining the facts you would need to examine to be sure, you are being willfully blind and that is a form of dishonesty.

ohwilleke
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  • Is the phrase "willful blindness" a standard locution understood by all lawyers in the way that you describe here? – Michael Hardy Jun 29 '21 at 17:09
  • @MichaelHardy Yes (at least in U.S. practice). See, e.g., https://core.ac.uk/download/pdf/151525116.pdf – ohwilleke Jun 30 '21 at 00:41
  • So let's say you know that a certain person is generally confused and dull-witted, and so you mentally tune out what he's saying, and he tells you the building is on fire, and you have the means to ascertain whether that is true, but you habitually ignore that person. So you finish writing your report saying the days work proceeded routinely and tomorrow at 8:00 am the usual meeting will take place in the conference room in that building. Does that of "blindness" qualify "willful"? – Michael Hardy Jun 30 '21 at 16:43
  • @MichaelHardy No. Willful blindness involves a fact pattern where the person without knowledge has strong reason to know that if that person investigated that that person would discovery something notable which the person deliberately declining to investigate doesn't want to know. Put another way, the person not investigating must have a strong Bayesian prior about the nature of the information that would be found and uses that information to decide it is better not to know. – ohwilleke Jun 30 '21 at 21:22
  • So this applies only to a conscious desire not to know? Might one still nonetheless say that they "reasonably ought to have known"? – Michael Hardy Jun 30 '21 at 21:25
  • And would failure to know what one reasonably ought to have know be considered dishonest only if there is a conscious desire not to know? – Michael Hardy Jun 30 '21 at 21:28
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    @MichaelHardy "his applies only to a conscious desire not to know?"/"would failure to know what one reasonably ought to have know be considered dishonest only if there is a conscious desire not to know?" There might be some other fact patterns in which this is also true, but none come to mind at the moment. Mere failure to know what one reasonably ought to have know, without additional facts, is not sufficient to establish dishonesty. – ohwilleke Jun 30 '21 at 21:40