Perjury.

• Author: Entman, Rachel
• Position: Annual white collar crime survey

1. INTRODUCTION

   Sworn testimony is valuable evidence upon which governmental agents make important judicial, legislative, and administrative decisions. Consequently, the integrity of our government depends in large part on the truthfulness of people who provide information while under oath.(1) In an effort to punish and deter false testimony,(2) Congress enacted sections 1621,(3) 1622,(4) and 1623(5) of Title 18. The remainder of Section I provides an overview of the three perjury statutes and analyzes key distinctions between them. Section II sets out the elements for violations of perjury and subornation of perjury. Section II also addresses key distinctions between sections 1621 and 1623. Section III delineates the available defenses to alleged perjury violations. Finally, Section IV discusses the sentencing requirements for violations of the statutes.

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

      Section 1621,(6) 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."(7) The statute has withstood constitutional challenges for vagueness regarding its scope.(8) Courts have applied section 1621 in a variety of situations that fall under the broad purview of the statute.(9)

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

      Congress enacted section 1623,(10) Title IV of the Organized Crime Control Act of 1970, to "facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries."(11) The statute operates only with regard to statements or information provided under oath "in any proceeding before or ancillary to any court or grand jury of the United States."(12) The statute applies without restriction to the broad range of proceedings that fall within these limitations.(13) Additionally, federal courts have upheld the constitutionality of section 1623, even though some of its provisions depart from the common law understanding of perjury prosecutions.(14)

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

      Section 1622(15) prohibits convincing another to commit "any perjury,"(16) whether under sections 1621 or 1623.(17) To be convicted of subornation of perjury, one must have persuaded another to perjure himself,(18) and that other person must have actually committed perjury.(19) However, it is not necessary that the accused threaten the witness with any physical harm for the accused to be guilty of subornation.(20) Like section 1623, section 1622 requires that the defendant know the testimony by the witness will be false.(21)

2. ELEMENTS OF THE OFFENSE

   This Section explores the elements of the crimes of perjury and subornation of perjury. Generally, the elements are (1) oath, (2) intent, (3) falsity, and (4) materiality. To secure a conviction under section 1621, the government must prove 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.(22) By contrast, a conviction under section 1623 requires proof the defendant knowingly made a false statement as to material facts or made or used any material that she knew to contain a false material statement while under oath in a proceeding before or ancillary to a court or grand jury of the United States.(23)

   Because they are substantially similar, the elements of sections 1621 and 1623 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; Part E examines subornation of perjury; Part F explores the materiality requirement; and Part G discusses issues surrounding the choice of statute in perjury prosecutions. Part G particularly analyzes the distinctions between sections 1621 and 1623 regarding the two-witness rule, the use of false material, and inconsistent declarations.

   1. Oath

      Sections 1621 and 1623 both require evidence that the defendant was under oath when he submitted the allegedly false testimony or information.(24) Although the oath need not take any particular form,(25) it must be administered by a person or body legally authorized to do so.(26) This requirement is easily satisfied, even where the authority to administer an oath is merely derived from an administrative rule or regulation.(27) However, an oath having no statutory basis whatsoever probably could not support a conviction for perjury.(28)

   2. Scope

      1. Section 1621: Competent Tribunal, Officer, or Person

         Section 1621 applies broadly to any false statement made under a properly administered oath "before a competent tribunal, officer, or person."(29) Courts have construed this language to extend the operation of section 1621 to a diverse range of situations.(30) Simultaneously, however, courts have viewed this clause as limiting the application of section 1621 because it implicitly excludes testimony submitted to "incompetent" tribunals, officers, and persons.(31)

         The competence of a tribunal is not compromised for purposes of section 1621 because it lacks diversity or subject matter jurisdiction over the proceeding in which the alleged perjury was committed.(32) Nor will a tribunal be incompetent because the statutory offense that formed the basis of such proceeding was imperfectly pleaded(33) or was later found to be unconstitutional.(34) However, a grand jury that has exceeded its term or has undertaken an investigation outside its powers may not constitute a competent body for the purposes of section 1621.(35) Similarly, a legislative committee whose members are too few to constitute a quorum is not a competent tribunal.(36)

      2. Section 1623: Court or Grand Jury

         Section 1623's prohibitions extend to all statements made in or material to proceedings "before or ancillary to" a court or grand jury.(37) This language limits the operation of the statute to testimony actually submitted in the presence of the court or grand jury or in the course of a deposition pursuant to valid rules of procedure.(38)

      3. Section 1622: Any Perjury

         Section 1622 applies to perjury occurring under either section 1621 or section 1623.(39) Both the scope of section 1622 and the burden on the government to prove perjury will be determined by either section 1621 or section 1623, depending on which statute is joined with the [sections] 1622 prosecution.(40)

   3. Intent

      1. Section 1621: Willfulness and Knowledge of Falsity

         Section 1621 applies only to testimony the defendant willfully stated or to which the defendant subscribed with knowledge of its falsity.(41) Therefore, to convict under section 1621, the government must prove beyond a reasonable doubt both willfulness(42) and knowledge.(43) False testimony provided as a result of confusion, mistake, or faulty memory does not satisfy this element.(44)

      2. Section 1623: Knowledge of Falsity

         Section 1623, unlike section 1621, is not limited to willfully submitted testimony.(45) Section 1623 merely requires that such testimony be knowingly stated or subscribed.(46) The government will usually satisfy this requirement by presenting proof that the defendant knew his testimony was false at the time he provided it.(47) If, however, questioning by a prosecutor was ambiguous, perjury is difficult to establish.(48) A literally true answer to a question is not perjury, even where the answer may be "evasive, nonresponsive, intentionally misleading and arguably false"; as long as it "was literally true, ... [the testimony] cannot support a conviction."(49)

   4. Falsity

      A declaration or statement must be false to constitute perjury under sections 1621,(50) 1622,(51) or 1623.(52) Wherever doubt remains as to the falsity of the testimony under review, the issue must be decided against the government.(53) The general principles governing a falsity inquiry are the same under sections 1621, 1622 and 1623.(54) Despite its apparent simplicity, courts have straggled with this requirement.(55)

      Bronston v. United States is the most prominent ruling regarding falsity.(56) In Bronston, the Court held that, in the course of a cross-examination, a non-responsive, yet literally true, answer may not provide the basis for a prosecution under section 1621.(57) Under Bronston, if a false statement has not been made, the alleged intent of the defendant to mislead is irrelevant.(58) It is the duty of the prosecutor to fashion unambiguous questions and insist on responsive answers.(59) A prosecutor's failure in this regard may not become the basis of a subsequent perjury charge.(60) Since the Bronston decision, courts have regularly barred prosecutions for perjury and subornation of perjury based on testimony that is "literally accurate," "legally truthful," or simply not amenable to conclusive proof of falsity.(61)

      Following the Court's logic in Bronston, a court will not find perjury when the testimony at issue consists of a nonresponsive answer.(62) However, where the allegedly false statement is responsive to a precise question, an objective analysis of the question and other circumstances is permissible and, in fact, necessary.(63) The same is true of questions or statements that are capable of multiple interpretations, but only one of which is reasonable, given the particular circumstances surrounding their utterance.(64)

      An important difference between sections 1621 and 1623 concerns inconsistent statements. Section 1621 requires the government to provide direct proof of falsity even where the accused has provided contradictory testimony.(65) Section 1623, however, removes this burden in the case of "irreconcilably contradictory declarations."(66)

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