PERJURY BY OMISSION.

Author:Robbins, Ira P.
 
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ABSTRACT

"Do you swear to tell the truth, the whole truth, and nothing but the truth? " There are few legal phrases that the layperson can repeat verbatim; this is one of them. But how many people truly understand the nuances and ramifications of testifying under oath? Many assume that if they do not provide the "whole truth " under oath, they will face a perjury charge. However, perjury is a charge often threatened but rarely used. The offense requires that the defendant willfully and knowingly make a false statement, under oath, regarding a material fact.

The federal perjury statute does not contemplate a scenario in which a defendant (or declarant, deponent, witness, or interviewee) withholds truthful information in an attempt to mislead the questioner and alter the outcome of a judicial proceeding--in sum, not telling the "whole truth. " But, in Bronston v. United States, the Supreme Court considered just this situation, holding that the language of the f ederal perjury statute does not contemplate a defendant who intentionally omits material information. Instead, the Court broadly ruled that "literally truthful" answers are categorically forbidden from being the basis of perjury. The Court placed the burden on the questioner to elicit the desired answer from a witness when confronted with a literally truthful, yet unresponsive and misleading answer. Such an onus suggests that all questioners possess the abilities of a mind reader.

This Article demonstrates that the Bronston Court created unforeseen consequences. Currently, a sophisticated defendant can dodge a perjury charge by providing a literally true answer while omitting pertinent information. Sometimes, these answers communicate a lie, but as long as they are literally truthful under the Bronston Court 's broad interpretation, a defendant could never face a perjury charge. Congress can fill the holes of this decision by amending the federal perjury statutes to criminalize those who intentionally give incomplete or misleading responses regarding material information under oath.

Table of Contents Introduction I. Background A. Perjury 1. The Early History of Perjury 2. The Modern Federal Perjury Statutes B. Bronston and the Literal Truth Defense 1. The Literal Truth Defense and Questioner 's Acuity 2. Lower Courts. Moving Forward--What Juries Can Infer 3. Unresponsive vs. Responsive Answers 4. An Attorney 's Ethical Obligation C. Silence, Omissions, and the Law 1. When Silence Has Legal Meaning 2. Statutes in Which Silence and/or Omissions Can Lead to Conviction II. The Need to Expand Federal Perjury Law to Counter Wily Witnesses A. The Literal Truth Loophole B. Perjury by Omission 1. What Juries Would Be Able to Infer 2. Omissions in Other Contexts as Support 3. Ethical Obligations C. Revising the Federal Perjury Statutes 1. State Statutes and Perjury by Omission 2. Model Statute and Jury Instructions Conclusion INTRODUCTION

In September 2018, Americans gathered around their televisions or computer monitors to watch members of the Senate Judiciary Committee question then-Judge Brett Kavanaugh and Dr. Christine Biasey Ford. Judge Kavanaugh had recently been nominated to the Supreme Court, motivating Dr. Ford to publicly accuse him of physically and sexually assaulting her in the 1980s. (1) For the Committee to gather potentially useful information in Judge Kavanaugh's confirmation process, both Dr. Ford and Judge Kavanaugh willingly participated in a hearing. (2) At this hearing, each senator had five minutes to question Dr. Ford and Judge Kavanaugh, who were both under oath, in order to elicit information regarding the allegations." Due to this time restraint, it was important that both witnesses answer each question as directly and truthfully as possible. When it was Judge Kavanaugh's turn, however, he often used evasive, unresponsive answers, which derailed the senators' lines of questioning and frustrated their ability to get the answers they desired. (4) By providing irrelevant answers,' and sometimes even asking the senators questions instead of answering theirs, (6) Judge Kavanaugh managed to avoid revealing certain information. His testimony is an example of an educated person who has seemingly exploited the broad confines of perjury by providing useless answers under oath.

This is not the first time a public official has used slight ambiguity (7) to avoid admitting unfavorable information about himself. During a deposition regarding the Paula Jones lawsuit, President Bill Clinton was asked about his now-infamous relationship with Monica Lewinsky. (8) President Clinton was able to infuse ambiguity into the provided definition of "sexual relations" in order to avoid divulging information regarding his physical relationship with her. (9) In doing so, he avoided a perjury charge because, based on his own definition of "sexual relations," he was telling the truth. (10)

This Article is not accusing now-Justice Kavanaugh or President Clinton of perjury. Instead, it is suggesting that their testimonies are examples of holes in the current perjury statute because they illustrate circumstances in which sophisticated individuals can omit material information under oath without facing perjury charges. Currently, a defendant commits perjury by giving a false statement under oath. (11) As the Supreme Court case Bronston v. United States (12) established, if a defendant's statement is literally true, even if he or she intends to mislead the questioner, the defendant cannot be convicted under the federal perjury statutes. (13) Therefore, "a wily witness" can avoid truthfully answering a question by providing an answer that appears truthful but actually omits material information and sometimes even produces a lie by negative implication. (14)

By expanding the federal perjury statute, Congress would discourage individuals like Judge Kavanaugh and President Clinton from refusing to provide material information under oath. Congress could eliminate existing loopholes by amending the federal perjury statute to encompass perjury by omission. Under this amended statute, a defendant would commit perjury by omission by leaving out material information when providing a literally true answer to an unambiguous question with the intent to mislead the questioner.

This Article asserts that Congress should expand the federal definition of perjury to include omissions and half-truths, thereby closing the loophole created in Bronston. Part I.A of the Background explores the historical development of perjury and examines its current form in federal perjury statutes. Next, Part I.B discusses the Supreme Court's decision in Bronston, which solidified the "literal truth" defense. Further, this Part explains the Court's assumptions regarding the questioner's acuity and details what a jury can infer, as well as how lower courts have distinguished Bronston's holding. Moreover, Part I.B defines the various types of unresponsive answers and outlines the ethical rules relevant to perjury. Part LC concludes the Background section by highlighting instances in which silence and omissions carry substantive meaning in the law.

Part II of this Article argues that the federal statute should encompass perjury by omission. First, Part II.A asserts that the literal truth defense developed by the Bronston Court created a loophole for sophisticated defendants. Next, Part II.B proposes that the federal perjury statute should be expanded to include perjury by omission, thus remedying the loophole. Accordingly, Part II.B demonstrates what juries would be permitted to infer under an expanded perjury statute. Further, this Part illustrates how the current statute and the literal truth defense might implicate an attorney's ethical obligations. Finally, Part II.C utilizes state statutes that contemplate perjury by omission as a foundation to recommend a revised federal statute, with accompanying jury instructions.

  1. BACKGROUND

    A. Perjury

  2. The Early History of Perjury

    Perjury traces its roots as far back as the Old Testament and has evolved with society. (15) In early civilizations, "[t]he judge, be he elder, chief, priest, king, or professional, was a surrogate for divine intervention." (16) However, society was skeptical that these judges would sufficiently deter individuals from lying, so participants in a trial were required to take an oath invoking the deity to ensure that they would be punished for lying--whether it be in their lifetime or the next. (17) The notion that witnesses must give completely truthful answers, or they will be punished for bearing false witness, is crosscultural. (18)

    The common law crime of perjury appeared much later when the Perjury Statute of 1563 made perjury by witnesses a punishable crime. (19) This statute defined perjury as "a deliberate lie" made in a courtroom and was the support for perjury charges throughout the nineteenth century. (20) In early English law, the perjury charge was used against individuals who had taken on a party oath or wager of law. (21) The modern federal perjury statutes, which have not changed much since the framing of the Constitution, are mostly derived from English common law. (22)

    1. The Modern Federal Perjury Statutes

      The modern federal perjury statutes criminalize intentionally making false statements under oath. There are three federal perjury statutes-sections 1621, 1622, and 1623. (23) Section 1621, the general perjury statute, applies to a broad range of circumstances. (24) It provides, in pertinent part:

      Whoever--(1) having taken an oath before a competent tribunal, officer, or person ... that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or (2) in any declaration, certificate, verification, or...

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