• By
  • Jacob Gershman

We still don’t know for sure who pulled the wool over whose eyes with respect to the formerly heartbreaking and now head-spinning developments coming out of Notre Dame.

Manti Te’o, the school’s superstar linebacker, said in a statement that he was a victim of a “sick joke,” perpetrated by one or more Internet tricksters who lured him into an online relationship with a fake woman and convinced him she had succumbed to leukemia.

But as more pieces of this confounding puzzle come together, Law Blog spoke with Ben Brafman, a prominent criminal defense attorney, about the legal implications of a hoax.

Mr. Brafman says if the whole thing is a “practical joke gone wild,” it’s unlikely that the person or people responsible for concocting Lennay Kekua, the name of the made-up girlfriend, would face criminal prosecution.

“If we started to prosecute practical jokes, you would run into First Amendment issues, and we would overwhelm the scarce prosecutorial resources that could be put to better use,” said Mr. Brafman.

Probably the most important factor is whether anyone behind “Kekua” tried to profit from the ruse by soliciting money or gifts from Mr. Te’o or others. “There doesn’t seem to be a financial benefit that anyone was trying to obtain,” said Mr. Brafman.

Notre Dame officials, who retained a private investigative firm after the linebacker alerted them that he had been duped, found nothing to suggest that “Kekua” was after cash, university officials said. “Nothing in our investigation revealed an ask which had been made,” said Jack Swarbrick, Notre Dame’s athletic director, at a news conference last night.

A hoax could become a criminal case if prosecutors suspect identity theft. But in the Notre Dame situation, the ploy consisted of fabricating a character, as opposed to assuming the identity of someone real.

Notre Dame attorneys and private investigators briefly mulled whether to alert police about the hoax, but decided not to after sensing an absence of criminal wrongdoing, university officials told Law Blog.

A similar situation unfolded last year in Colorado, where the tale of a cancer-stricken nine-year-old named Alex spread through a small town, generating an outpouring of sympathy that turned to grief when they thought the boy had died of leukemia. The story  turned out to be a hoax. But local prosecutors declined to go after the  real “Alex” after finding no evidence that the person had collected money from the trick.

The threshold of civil liability is lower. Victims of a hoax could have standing to sue by claiming that it caused them to suffer financial losses, extreme emotional distress or other serious consequences, Mr. Brafman said.

“There’s a huge difference between civil and criminal liability in a case like this,” he said.