Perjury False Testimony Lying Under Oath

Perjury

Aristotle believed there should be guidelines governing the act of giving testimony (Kennedy, 2004, p. 227-228). For example, a jury member should place greater weight on the reputation and social standing of the witness, than on the content of the testimony given. If a person of good character is called to testify before a formal investigative body, a reasonable listener is therefore required to open their mind to anything the witness may claim. This process of 'reciprocation' requires reasonable jury members and judges to accept as trustworthy the testimony of a reputable person, even if the events described seem incredible and go beyond their own personal experiences.

Unfortunately, the days of small village tribunals where jury members knew most of the participants in a trial, and therefore the reputations and trustworthiness of witnesses, are generally a thing of the past in the United States and much of the world. Reputations of witnesses must therefore be established through other means, such as the lack of a criminal record, involvement in the community affairs, a family-oriented lifestyle, and professional accomplishments. However, things can still go horribly wrong in modern America. For example, in 1955 Harvey Matusow recanted most of the testimony he had given during the preceding four years before the House Committee on Un-American Activities (Lichtman and Cohen, 2004, p. 1-2). Some of this testimony occurred during criminal proceedings and therefore resulted in prison terms for several defendants. Matusow's reputation was based on his having been a past member of the Communist Party and an FBI informant. As Murray Kempton remarked in the New York Post, "… you and I didn't offer him as a trustworthy man; the United States government did." (quote taken from Lichtman and Cohen, 2004, p. 2).

The trustworthiness of a witness under oath therefore matters a great deal to the integrity of court proceedings, and generally much of the government's business, so much so that lying under oath is a federal and state crime. This essay will examine the federal statutes making perjury a crime, how current jurisprudence interprets these statutes, and one exemption the U.S. Supreme Court seems ambivalent about.

Perjury as Crime

Under U.S. Code, Title 18 §1621, perjury is punishable by a fine up to $2,000 and/or imprisonment not to exceed five years (Cornell University, 2012). The other two federal statutes that criminalize perjury are 18 U.S.C. § 1622 and 18 U.S.C. § 1623 (McGinn-Shapiro, 2011, p. 998). Statute § 1622 makes convincing someone else to commit perjury a crime, which is called suborning perjury. Statute § 1623 makes lying before a grand jury a criminal offense. These are the main perjury statutes under federal law, with § 1621 having the broadest application. McGinn Shapiro notes that many of the most notorious criminal cases of the past century have yielded convictions under perjury, rather than the crime that brought the criminal to the public's attention in the first place (p. 998). These three statutes have been challenged a number of times in court and invariably the U.S. Supreme Court has upheld their use across a broad range of situations.

To convict someone of perjury the government must first show that the defendant took an oath administered by a competent tribunal, person, or officer (McGinn-Shapiro, 2011, p. 1001-1009). Intent to knowingly provide false testimony must also be proven beyond a shadow of doubt; however, the testimony given must also be false. In other words, if someone thought they were committing perjury by providing what they believed was false evidence, but the evidence turned out to be true, then this is not perjury. In addition, intentionally misleading statements, even if true, are not considered perjury. Most courts are currently willing to accept compelling circumstantial evidence as sufficient to prove falsity. The one exception to the above is that under § 1623 the government need only prove irreconcilable inconsistency, not which statements are actually false. However, inconsistency with another witness's testimony is not sufficient to convict someone of perjury under § 1623. Finally, the false statement or inconsistency must be of sufficient value to influence the proceedings. Such statements are said to be 'material' and under current jurisprudence, need not have an impact on the outcome of the proceedings.

Valid defenses against an accusation of perjury may include recantation or correction, if it includes evidence that undermines allegations of having made false statements intentionally (McGinn-Shapiro, 2011, p. 1015-1017). Another defense that may be invoked is insufficient assistance of counsel. This defense implies that a witness sought advice from an attorney about their testimony in advance, but this advice resulted in a charge of perjury. Under these circumstances, the defendant may be able to blame their attorney. If the court agrees with the defendant then the attorney could be charged for suborning perjury under § 1622. Defendants who have been acquitted of the original criminal charges are also protected against a charge of perjury if it appears the prosecution, who is pursuing the perjury charge, is merely being vindictive for having lost their case. This defense has been called double jeopardy.

The courts have also provided certain protections against other forms of malicious perjury prosecutions. Witnesses called to testify in front of a grand jury cannot be convicted of perjury if the statements elicited are immaterial to the grand jury investigation. In other words, the grand jury cannot elicit testimony for the sole purpose of forcing the witness to commit perjury. This has been called the 'perjury trap." Finally, statements made after invoking the Fifth Amendment right against self-incrimination may, in some circumstances, be judged inadmissible for the purposes of perjury prosecutions.

Police Credibility

The police have long enjoyed a significant measure of credibility by virtue of their uniform, but recent evidence has shown that the police often lie under oath maliciously and for other dubious reasons. Wilson (2010) describes two types of lies that the police engage in, those that allegedly advance the goal of justice and those that intentionally subvert it. For example, New York federal judges are increasingly becoming intolerant towards police lying under oath (Wilson, 2010, p. 6). The primary purpose of this pervasive practice is to prevent suppression of evidence during pretrial hearings. This shift in sentiment, and thus jurisprudence within New York federal courts, reflects repeated encounters with lying officers about the circumstances under which they conducted searches. Up to 20 such cases were mentioned in a recent New York Times article.