AuthorBaran, Kathryn Kavanagh
PositionThirteenth Survey of White Collar Crime

    Sworn testimony is regarded as valuable evidence upon which important judicial, legislative, administrative, and other governmental decisions are made. Consequently, the integrity of our government depends in large part on the veracity of people who provide information while under oath.(1) Congressional concern regarding the consequences of perjury is expressed in [subsections] 1621(2), 1622(3) and 1623(4) of Title 18, which were enacted to punish and deter false testimony.(5) Section I of this Article provides an overview of the three perjury statutes and analyzes key distinctions between them; Section II sets out the elements to violations of perjury and subornation of perjury; Section HI delineates the available defenses to alleged perjury violations; and Section IV discusses the sentencing requirements under the statutes. Section I briefly introduces each statute generally in Parts A through C and then, in Part D, evaluates the distinctions between [sections] 1621 and [sections] 1623.

    1. False Testimony Generally: 18 U.S. C [sections] 1621

      Section 1621, the broadest of the three perjury statutes, applies to all material statements or information provided under oath to "a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered."(6) The statute has withstood constitutional challenges for vagueness regarding the breadth of its scope.(7) Courts have applied [sections] 1621 in a variety of situations.(8)

    2. False Testimony to Court or Grand Jury: 18 U.S. C. [sections] 1623

      Section 1623, the second of the three perjury statutes, was enacted to "facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries."(9) Its operation is expressly limited to statements or information provided under oath "in any proceeding before or ancillary to any court or grand jury of the United States."(10) Within these bounds, however, the statute operates without restriction.(11) Additionally, the constitutionality of [sections] 1623 has not been questioned, despite the modification of certain procedural and substantive rules that historically applied to perjury prosecutions.(12)

    3. Subornation of Perjury: 18 U.S. C. [sections] 1622

      Section 1622 is also a fairly broad statute, and not limited to the scope of [sections] 1621.(13) Section 1622 makes it a crime to convince another to commit "any perjury," whether under [sections] 1621 or [sections] 1623.(14) To be convicted of subornation of Perjury: one must have persuaded another to perjure himself(15) and the witness must have actually committed Perjury.(16) However, it is not necessary that the witness be threatened with any physical harm for the accused to be guilty of subornation.(17) Similar to [sections] 1623, [sections] 1622 requires that the defendant know the testimony by the witness will be false.(18)

    4. Comparison of 18 U.S.C. [subsections] 1621 and 1623: Key Distinctions

      Sections 1621 and 1623 extend to ordinary judicial proceedings.(19) Consequently, false testimony may be simultaneously actionable under both statutes. In such cases, defendants have argued that prosecution under [sections] 1621 is improper as [sections] 1623 was specifically enacted for use on occasions where the Perjury: is committed during "a proceeding before or ancillary to any court or grand jury of the United States."(20) Others have suggested that selective prosecution under [sections] 1623 would be inconsistent with the constitutional guarantee of equal protection because a violation of [sections] 1621 is often more difficult to prove.(21)

      Although the courts have not been uniformly hostile to these arguments,(22) the general understanding appears to be that [sections] 1623 serves to supplement, rather than supplant, [sections] 1621. Where criminal statutes overlap, it is a well settled rule that the government is entitled to choose among them provided it does not discriminate against any class of defendants.(23) Accordingly, when perjury falls under both statutes, the government may choose to charge a defendant under either one. Such a rule is consistent with the absence of preemptive language in either statute. Moreover, it has been suggested that such a rule is consistent with congressional intent expressed in the legislative history of [sections] 1623.(24)

      Aside from the different forums, there are other significant differences between [subsections] 1621 and 1623. This Part of the Article identifies and examines the more important distinctions between the two provisions, including the application of the "two" witness rule," the effect of recantation, the use of false materials, and the effect of inconsistent declarations. The individual elements of the statutory violations will be examined in Section II.

      1. Two-Witness Rule

        The type of proof acceptable for a conviction under [sections] 1621 differs from that under [sections] 1623. A perjury conviction at common law could not be sustained solely upon the testimony of a single witness.(25) While this evidentiary limitation is commonly referred to as the "two-witness rule," the testimony of only one witness, in conjunction with corroborating evidence, is sufficient to satisfy its requirements.(26) The "two-witness" rule, having survived repeated challenges charging that it is anachronistic and Unduly burdensome,(27) has been judicially incorporated into Perjury: prosecutions under [sections] 1621.(28)

        Section 1623, on the other hand, expressly provides that "[p]roof beyond a reasonable doubt ... is sufficient for conviction" and that "[i]t shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence."(29) The obvious purpose of this language, to prevent the application of "two-witness" rule in [sections] 1623 prosecutions,(30) has been respected by the courts.(31) For the purpose of conviction under [sections] 1622, the " two-witness" rule does not apply to establishing that the accused induced the witness to commit perjury.(32)

      2. Recantation

        Sections 1621 and 1623 also differ in the prosecutorial effect of a recantation of false testimony by a witness. Under [sections] 1621, a witness's attempts to repudiate, correct, or otherwise cure the effect of false testimony do not insulate him from prosecution for perjury.(33)

        Section 1623, on the other hand, insulates the witness from prosecution for perjury in instances of recantation where certain conditions regarding the effect of the false statement on the proceeding and the timeliness of the recantation are met.(34) The purpose of this provision is "to induce the witness to give truthful testimony in judicial proceedings by permitting him to voluntarily correct a false statement without incurring risk of prosecution by doing so."(35)

      3. Use of False Material

        While [sections] 1621 is broader than [sections] 1623 with regard to the range of proceedings where it applies, the opposite is true regarding the range of conduct condemned. Under [sections] 1621, a person is guilty of perjury only when, having taken the proper oath, he "states or subscribes to any material matter which he does not believe to be true."(36) By contrast, a violation of [sections] 1623 occurs whenever a witness, while under oath, "knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration."(37) Although it is infrequently invoked, the "make or use" provision of [sections] 1623 has been broadly construed.(38)

      4. Inconsistent Declarations

        When a witness submits two or more absolutely irreconcilable declarations while under oath, he has necessarily perjured himself at least once. However, this unassailable logic is of no avail to the government under [sections] 1621, as it must independently establish the falsity of at least one declaration before a conviction can be obtained.(39) To Correct this perceived defect in the law of perjury, Congress enacted [sections] 1623(c), under which the prosecution "need not specify which declaration is false."(40)

        When viewed in conjunction with the inapplicability of the two-witness rule in [sections] 1623 prosecutions, this important evidentiary modification provides strong support for the claim that a primary congressional purpose of [sections] 1623 was to facilitate the prosecution of perjury.(41)


    This Section explores the elements of the crimes of perjury and subornation of perjury which are, generally, (1) an oath, (2) intent, (3) falsity, and (4) materiality. To secure a conviction under [sections] 1621, the government must prove that the defendant took an oath authorized by a law of the United States before a competent tribunal, officer, or person and, while under such oath, willfully and knowingly made a false statement as to material facts.(42) By contrast, a conviction under [sections] 1623 requires proof that the defendant, while under oath in a proceeding before or ancillary to a court or grand jury of the United States, knowingly made a false statement as to material facts or made or used any material that she knew to contain a false material statement.(43)

    The elements of [subsections] 1621 and 1623, because they are substantially similar, are examined together in this Section. Variations between the two statutes are noted where appropriate. Part A addresses the oath requirement, Part B looks at the scope of each statute individually, Part C examines the intent of the accused, Part D deals with the falsity element, and finally, Part E explores the materiality requirement.

    1. Oath

      Sections 1621 and 1623 both require proof that the allegedly false testimony or information was submitted while the defendant was under an oath to speak truthfully.(44) Although the oath need not take...

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