A tempered 'yes' to the 'exculpatory no.'

Author:Pomfret, Scott D.

What circumstances trigger a person's duty to tell the truth? Immanuel Kant claimed without qualification that all circumstances require truthtelling, even when speaking the truth injures the speaker.(1) John Henry Cardinal Newman made exceptions for lies that achieved some positive end.(2) Hugo Grotius permitted lies to adversaries.(3) The philosophy of twentieth-century common sense largely permits white lies.(4)

Perhaps surprisingly, some courts have found that Kant's absolute prohibition of falsehood more accurately characterizes a speaker's duty to tell the truth to the federal government under 18 U.S.C. [sections] 1001 than these other, more relaxed standards.(5) According to this view, the prohibition on lying has no less force in informal circumstances, in which the speaker swears no oath and the government has no reciprocal duty.6 The statute provides in relevant part:

Whoever, in any matter within the jurisdiction of the executive,

legislative, or judicial branch of the Government of the United States,

knowingly and willfully--

(1) falsifies, conceals, or covers up by any trick, scheme, or device

a material fact;

(2) makes any materially false, fictitious, or fraudulent statement

or representation; or

(3) makes or uses any false writing or document knowing the

same to contain any materially false, fictitious, or fraudulent

statement or entry;

shall be fined under this title or imprisoned not more than 5 years, or


Prosecutors legitimately employ the provision to punish individuals who supply false information to the government on statutorily required reports.(8) Accordingly, the federal judiciary has widely applied section 1001 to punish individuals who gave false statements to the General Services Administration,(9) the Customs Service,(10) the FBI,(11) and state unemployment agencies.(12)

Courts have been reluctant, however, to apply the statute to certain kinds of false statements given in the context of criminal investigations.(13) 13 This reluctance may stem from the fear that prosecutors might use the provision improperly: authorities unable to prove the elements of a substantive crime could induce a suspect to spout falsehoods in order to charge him with a section 1001 violation,(14) or they could encourage repetition of false responses in order to charge multiple statutory violations.(15) These kinds of concerns prompted one court to create the exculpatory no exception to section 1001.(16)

The exculpatory no exception shields from section 1001 liability an interrogee's denial of involvement in, or knowledge of, criminal activity.(17) As the name implies, protected responses must have two general characteristics: (i) they must be exculpatory; and (ii) they must be limited to words of denial containing no discursive misrepresentations.(18)

Courts deem a response exculpatory if it conveys false information in a situation in which a truthful reply would have incriminated the interrogee. A question incriminates the interrogee if the truthful answer "would in [itself] support a conviction under a federal criminal statute [or] ... would furnish a link in the chain of evidence needed to prosecute the [interrogee]."(19) The following scenario represents a clear case of an answer that would itself support a conviction: an FBI agent asks a suspect who had received illegal income whether he had done so, and the suspect denies receiving the illegal income.(20) Similarly, truthfully admitting receipt of an original tax refund check would not directly incriminate a defendant, but would furnish a link in the chain of evidence necessary to convict her of fraudulently seeking a replacement check for the original that she claimed never to have received.(21) A false denial in these circumstances would therefore be exculpatory.(22) On the other hand, had an agent asked whether the sky were blue, and had the suspect denied it, the response would not have qualified for the exception because, presumably, a truthful answer would not have been incriminating,(23) and the denial, therefore, would not have been exculpatory.(24)

The second characteristic of protected responses is their limitation to words of denial. Although there is less unanimity on this issue than on the definition of exculpatory,(25) this Note initially adopts a broad definition reflective of the majority position.(26) A denial is a simple statement of negation with regard to involvement in, or knowledge of, criminal activity.(27) The statement must not include affirmative misrepresentations.(28) Words and phrases like "No, I did not," "none," or "never" qualify as denials.(29) "[D]evis[ing] an elaborate exculpatory story designed to mislead investigators," on the other hand, is not a simple denial.(30) From these two characteristics, it is evident that the exception shields a "very limited" class of responses.(31)

Following the original articulation of the exculpatory no exception in 1955,(32) the First, Fourth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have adopted it.(33) Yet despite the exception's forty-two-year pedigree, the Second and Fifth Circuits have in recent years either overturned or ignored their own precedent and have rejected the exception.(34) These two circuits each justify their about-face on the same two bases. First, they deny that the statute's plain wording, even when augmented by the legislative history, authorizes an exception for mere exculpatory denials(35) -- the "Plain Language Objection." Second, they reject the idea that respect for the values underlying the Fifth Amendment requires affirming the exculpatory no exception -- the "Values Objection."(36)

This Note contends that the Supreme Court, which has granted certiorari,(37) should recognize the continued validity of the exculpatory no exception. To reflect more closely the concerns that justify the exception, the Court should also reformulate the varied tests lower courts have employed to determine whether a defendant may invoke the exception.(38) Part I asserts that Congress had no intention of criminalizing mere exculpatory denials, and that the exception is thus completely consistent with the purposes of the false statement statute. Part II argues that punishing exculpatory denials may threaten the privilege against self-incrimination. This Part contends, however, that the Supreme Court can avoid an unnecessary constitutional determination of this issue by upholding the exception. Part III argues that the exculpatory no exception protects certain principles of fairness that also underlie the Constitution, and that, absent congressional intent to the contrary, respect for these principles requires recognition of the exception in interpreting section 1001. Part IV urges adoption of a streamlined version of the tests courts have used to determine the exception's applicability, a version that more clearly captures the fairness concerns articulated in Part III and the legislative intent noted in Part I.

I: The Purpose of the False Statement Statute

This Part argues that in enacting section 1001, Congress evinced no intention to criminalize simple false denials when an interrogee offers them to exculpate himself in the context of a criminal investigation. Section I.A contends that the exception is consistent with the limited statutory scope and purposes described in the legislative history.(39) It also refutes the Second and Fifth Circuits' claims that the statutory history prohibits courts' use of the exception. Section I.B counters the Second and Fifth Circuits' Plain Language objection.

  1. Congressional Intent and the False Statement Statute

    The exculpatory no exception is consistent with the two purposes of the false statement statute: to protect the government from certain deceptive practices by contractors, and to protect the government from relying on false information that interferes with its functions. As to the first purpose, nondiscursive exculpatory denials are simply not the types of practices against which the statute offers protection.(40) According to the Supreme Court, Congress enacted the current statutory language in 1934 "to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described."(41) The deceptive practices to which the Supreme Court referred were submission of false regulatory reports and false documents by contractors to the Public Works Administration.(42) Consistent with that interpretation, the legislative history indicates that

    [t]here is nothing [in the United States Criminal Code] which permits

    us to make an investigation and prosecute persons who are engaged

    in the "kick-back" practice. They make false returns, claiming that

    they paid certain amounts to their employees, when they have not

    done so. This bill just amends the law so as to give the Federal Government

    authority to deal with that class of cases.(43)

    A simple denial of culpability in the face of incriminating questioning -- at least in situations in which the speaker did not seek a government contract -- would not even implicate "that class of cases," much less frustrate Congress's purpose in enacting the statute.

    The exculpatory no exception is also reasonably consistent with the statute's second purpose: to prohibit perversion of, or interference with, the legitimate functions of government by, for example, inducing action or reliance.(44) Because exculpatory denials are responses to questioning, suspects issue them most often during an investigation. In a formulation reflected in the Code of Federal Regulations,(45) an investigator's function is "to determine whether sufficient evidence exists for a person to be charged with a crime."(46) Failure to admit wrongdoing is just a part of that evidence; it is not equivalent to a substantial perversion of the investigator's function.(47) It does not, for example, prevent the investigator from confirming...

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