By Gohlke, Melissa; Cavalli, Mikaela | American Criminal Law Review, Spring 2012 | Go to article overview
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Gohlke, Melissa, Cavalli, Mikaela, American Criminal Law Review

     A. Section 1621: False Testimony Generally
     B. Section 1623: False Testimony to Court or Grand Jury
     C. Section 1622: Subornation of Perjury
     A. Oath
     B. Intent
        1. Section 1621: Willfulness and Knowledge of Falsity
        2. Section 1623: Knowledge of Falsity
     C. Falsity
     D. Materiality
     E. Key Distinctions between [section][section] 1621 and 1623
        1. Two-Witness Rule
        2. Use of False Material
        3. Inconsistent Declarations
     A. Recantation
        1. Section 1621
        2. Section 1623
     B. Assistance of Counsel
     C. Double Jeopardy
     D. Perjury Trap
     E. Fifth Amendment


Perjury can subvert the fair administration of justice and the proper function of government. Every branch and level of government relies upon sworn testimony. Therefore, the integrity of governmental processes depends in large part on the truthfulness of statements made under oath. (1) In an effort to free courts of the "pollution of perjury" (2) by deterring and punishing false testimony, (3) Congress enacted three statutes criminalizing perjury. (4) Those statutes are 18 U.S.C. [section] [section] 1621, (5) which is the general perjury statute, 1622, (6) which criminalizes the subornation of perjury, and 1623, which relates to perjury before a grand jury. (7) Furthermore, in many of the most well publicized criminal cases over the last century, the government has secured a conviction for perjury rather than for the crime that gained the defendant notoriety. (8)

A. Section 1621: False Testimony Generally

Section 1621, (9) the broadest of the three federal 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." (10) Section 1621 has withstood constitutional Challenges for vagueness, (11) and has been applied in a variety of situations that fall under the broad purview of the statute. (12)

Defendants have successfully argued in some cases that the oath they took was not "before a competent tribunal, officer, or person." (13) Courts have construed this phrase broadly and have applied [section] 1621 in a wide range of situations, with limitations existing as to what constitutes an "incompetent" tribunal, officer, or person. (14) A grand jury acting within its jurisdiction is a competent tribunal for purposes of [section] 1621, (15) but one that has exceeded its term or has undertaken an investigation outside its powers is not. (16) Similarly, a congressional committee will be regarded as a competent tribunal, (17) unless it acts outside of a legitimate legislative purpose (18) or lacks a quorum, (19) However, the competency of a tribunal is not compromised for purposes of [section] 1621 because it lacks diversity or subject matter jurisdiction. (20) Nor is a tribunal incompetent because the statutory offense that formed the basis of the proceeding was imperfectly pleaded, (21) based on a defective indictment, (22) or later found to be unconstitutional. (23)

B. Section 1623: False Testimony to Court or Grand Jury

Congress enacted [section] 1623 (24) to "facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries." (25) The statute is operative 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." (26) 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. (27) The statute applies without restriction to the broad range of proceedings that fall within this category.

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