The Offense of Perjuly in the Military

• Author: Lieutenant Colonel Leo Kearney O'Drudy, Jr.
• Pages: 01

By Lieutenant Colonel Leo Kearney O'Drudy, Jr.*" And a Council in England, here in the year One Tholwand and A'ine, eall'd Concilium Aenhamense, ranks 'em [periure?~] with Witches, Sorcerers, Secromancers, egregious Strumpets, &c And Decrees thlw againat 'em . , . a8 unzuorthg to enjoy the pririledge and benefit of their Xatiue Countrev; Turn them out, ami Banish 'em, that the Land may be clennaed, and the rest pre-served from the infection. Z f this good English Cannon weve now in force; if this eou~se were taken with those, that are notoriously guilty of this Crime: toe might have a fair riddance of the perfidiom duturbers of OUT Peace and Government . , , ,

Of Perjuru, A sermon Preached at the Assizes held at Chester, England, April 4, 1681, by John Allen, Chaplain to the Lord Bishop of Chester.

I. INTRODUCTION

Any perion subject to this chapter who in a judrelal proceeding 01 in D course of jmtiee willfuliy and eomuptly givea, upon a lawful oath or in any form aiiored by law to be substituted for an oath, any false testimony material ta the maue of matter of inquiv ie guilty of periuw and shall be punished 8s B court-martial may direct.'

While hardly endemic to the military.' Deriurv nevertheless . . . .

*Thie article was adapted from a them presented to The Judge Advocate General's School, US Army, Charlatteaville, Virpinia, while the author was D member of the Nineteenth Advanced Courae. The DBlnions and concI~smns presented herein are thoae of the author and do not neee~dsrily represent the views of The Judge Advocate General's School or a m other mvernmenisi

. -

agency.

**USXC, Assistant Director, Appellate Government Division, Navy Appellate Review Activity. B.A. 1855, Mt. St. Mary's College; J.D., 1958,

'USIFORM

CODE OF MILITAR.Y JI-ZTICE art. 131 [heremafter cited as "UCDlJ"1.

VillanDva univemity.

'Slnce~the t u n of the century, eirilian commentators have ward u d h anent what they haw as rampant perjury I" the courts. (Strsngeiy, such fulrninationa hare been relatively rare ~n the paat two dscades, suggesting either amelioration of the condition-whleh seems highly uniikely-or reaigna-Cion of the cntie%.) See e.0. Black A Report on Perjuw 48 ILL. B. J. 574 I18611 (a stud> of p&j& ~n Ililnoia euurtal : Blatt, Raws Your Righi Hand, 24 J. AM. JUD. SOT'? 60 (1040) (perjury in Xsssachueetta. Professor Blatt noted, 'I. . . there probably never was B lengthy trial in which wit.

nesw did not commit teehnied prjjury and I mesn not a mere dewition from the truth, but B deliberate m d Intentional misrepresentstlon of fact which can be demonatrated to an intelligent jury." Among other thingr, the author cites nrivaiiy rneredible initantes where wholly diainterested m o l court witmssea patently lied about their observations of controlled "OECYT-renees".); Boacon, Diaafic Chonge in Lair Xeceeaaw to Curb Perjury mOur Cowla, 13 THE P ~ k m

6 (1935) (perjury in New Yaik. Amatant Distiiet Attorney Barton observed, "The omnipresence of perjury in the mumof this State Is attested by d i who come in contact with trial machinery, einl or criminal. The late Judge Joseph E. Corrigan of the Court of Gen-eral Seaam,s estimated thst perjury aevried in mare than 90% of the c a w in h x court, and Justice Philip J. McCmk ha8 stated that of 2.57 cases tried before him In 1927 In Lhe Supreme Court there were, through perluiiea. actual m~searrmgei of Justice In 33-unaueeeesful periutiea must have been committed in far greater numbers'' (footnotes omitted)): Burdick, Parjuw Problem and Needed Changes m lYew York Lows, 12 TKL P m a

3 (1934)

1Cornell &an Burdick noted that the New York Cnme Commisaion m 1930 found perjury to be prevalent in that State and that similar commissions for Indiana, California, Michigan, and Jlasaehusette reached the mme eoneiwions In regard to their respective juriadieuons.) : Greenberg, P+uw 18

YOCR Concern, 24 THE PAPEL 3 I19601 (New York State Supreme Court Justice Greenberg attributed ahar he felt was widespread P~TJYI), in part,to P breakdown of iellgmui beiief. His m.tIcie is foilowed by B quotation from a foimei United States Attorney: "Criminal Justlee today IS enmeahed ~n a web of perjury. The pea m the old sheii g8me was often ewEr to find than 1s the truth I" our eourti of isw. Fake swearing h a become a daiiy. and therefore almost unremarked epraode.''I ; Hibrchman. 'Do You Solamdy Suear:" Or That Perjury Problem, 24 J. A. IRST. CRIM. L AND CR~M~HDLOCY and legal reformer Hibschman claimed peerjuri ~n

ma.) : Hinahaw, Psnt~w,

40 ILL. B. J. 1mtoek. Whol Xlipprns l o Perjurma, 24REI. 727 (1940) (Law Professor MeCimtaek states. "The opinionjury is common in our trial courts 18 one m which ail the mite quesiim seem to be ~n complete agreement. Though the extent to which

"gs ailifuily teatlfy falsely as to materia1 h fact. can never be sseerlained QO as to investigation. we may accept the opinion of those who haw examined the question ai to the seTiouSnesi of the prablem, enpeeisliy when It is confirmed by everyday convenations of judger and trial iswyers. . [Tlhere eeema to be no reason to doubt that perlur? IS common enough to constitute a major problem in rhe adminiatration of the law." (footnotes omitted!, Purrington. The Fieyumcy o i Pe~jury.

i cases, reventy.five percent Of cnmlnai

COL. L. REV 67 (1808) (turn-of-the-cmtury perjury problems in Yew York): Scott. .Yothing But the Truth. 7 L. SOC. J. 12 (19361 (peenur) 'common" I" hlarrachuaetts.) , ahitman. Piopoacd Soiutron to the Pioblew of Pmiuw m Our Cosrta, 59 DKI L. RE, 127 (19.55) (observations by anAssistant District Attorney ~n Philadelphia commenting on the uldeagresd incidence8 of perjury ~n Pennsylvania and eisorhere.! 30 L NmES 223 (1927) (perjur) a "dails acurrenee" in New York), Article 18 Perjuw lncreoaingly Prsialrnt?, 14 L SOTEE 44 (1910) (the famed attorney Samuel Untermeyer IS quoted ''I really believe the crime a i perjury in committed I" at ieaar three out of every five c a w tried m the courts in which an UP of fact ib invoired. It has become 60 general that the eavrtr regard it 81 aimoal a part of the ine\itable accompsnimenf of a trial '0, Article, Psr-jury in Judwtol Pmcmdmgs, 64 C.S. L. RR 1 11930) (perjury I" Ne%York.1; Article, Pevsw-The Commonrsf Frloi?, i I l i O m S 170 118981

PERJURY

seems seriously, if not egregiously, widespread in courts-martial. In a survey made by the writer of Mty-four general and special court-martial military judges of the Army, Navy and Marine Corps,' almost 40% were of the opinion that perjury had been committed in 10-297. of the courts-martial (during the trial proper) in which they had participated as judge or counsel. Over 25% estimated the incidence of such perjury to be between 5 and 9% of trials proper in which they had BO participated. The estimations of perjuries committed during the presentencing procedure were, oddly, lower, but still sufficiently high to approximate the figures cited for incidences of perjury in the trial proper.'

Few major crimes since the turn of the century-indeed, few legal subjects in general-have spawned 80 niggardly a collection

~~

~ ~ ~ h ~ ~ ~ ~ ~ ~ ~ ~ ~ n ~ , ~ ~ ~ ~ p;dpy;;,:

(1931) at 57. Addreis by the Honorable Eugene O'Dunne, Sept. 20, 1934 id hoc. f.

V&. B. ASS'K (1934). at 2.53; Addreas by J. S. Mecarthy. July 16 1901 in 35 AH. L. Rw. 684 (Iowan MeCsrthy urge* a~ B remedy, inter dih g h e F demnity to ssth-gi\ing. Report of the NEW YorkLaw &&ion Commission Leglalative D w m k t (19351 No. 60 229-343: Report of the Commirsiod on the Administration of Su&e in New YorkState, legislative Dozument (19541, No. 50. 834838, Forelm tribunals appear to be similarly plagued. See, e.& 94 JUST. P. 778 (1950) (England): €4 IR. L. T. 304 (1930) (England); 94 JUST. P. 853 (1960) (England); 48L NOTES 66 (1929) (England): 78 SOL. J. 423 (19%) ("[Hlundreds Ofpernone , , . perjure themselves in the courts every day except Sunday, , , ,") (England); Wallace. The P~evalrnoe of Perj%w, 42 CAN. L. S. 248(1906) (Canada); Bo IR L. T. 192 (1926) (Ireland1 ; Sc. L. T., Nor. 30. 1967. at P. 190 (Denmark).

'Of the total s~rvey questionnaires mailed, fifty.four were returned. In several of these, however, not a11 questions were peplied to; consequently, the data presented is sometimes not based on B compilation of the opinions of all fifty-fan7 military judges. Therefore, whenever the phrase, "militaryjudges sumeyed" IS used in this study, it ahall be meant to refer to those of the fiftyfour judges who sent repliea to the parrieuiar queatian or mst-ter under diseuasion.

'The question posed, and the replies thereto, were a~ follows (the figvrei imrted in the parentheses shew the number of judges who cheeked each) '

"In what percentage of eourt6maitiai in whieh you have participated BI either ooumel OF judge do you kiieve that at ieast one witness (whether the ~eelc~ed

01 another) committed perjury:

80~/r-lM% 501- 796 30%- 40%

1070- 19% 57r- 99r 05,- 47r

,~~;~;

of incisive, scholarls legal cammentars as perjury.< Which puts the legal uriters nicely in tandem with the prosecutors: both assiduously ignore it.a This, though perjurs IS unirersally can-ceded to be one of the most pervasiue, oft-committed serious crimes in the United States.' As pithily noted by- an assistant district attorney in Philadelphia sixteen years ago, "Few crimes except fornication are more prevalent or carried off with greater

Yark iau-oriented Report of the Yew York Law Revirion Commission. Ledis-

Commliiion on Law Enforcement and Administration of Jvsrice (1968). 458, Burdiek. at 3, MeClintoek. at 768: Whitman, at 127; MeCarthy, at 684; 84 Just. P 418 (19201 all at mpra note 2 . Sew Yark Report, 1836, 281-294. A recent U S. Senate Report rhich dealFederal aisttPm eoneluded that the po1% not Ilkel). Based on a stud! of theports from 1856 to 1865, the Report noants onli- 713 were even charged wth periury dvring this perid." S. REP No. 517, 91st Cong.. :si Seas. 17-58 11969) According...