Academic journal article American Criminal Law Review


Academic journal article American Criminal Law Review


Article excerpt

     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] 1621 and [section] 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


The important place of truthful testimony in the administration of justice and the functional capacity of every branch of government cannot be understated. Because every branch and level of government relies upon sworn testimony when making of important decisions, 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 18 U.S.C. [subsection] 1621, (4) 1622, (5) and 1623 (6).

A. False Testimony Generally

Section 1621, (7) 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." (8) The statute has withstood challenges to its constitutionality for vagueness. (9) Courts have applied [section] 1621 in a variety of situations that fall under the broad purview of the statute. (10)

Section 1621 applies to any false statement made under a properly administered oath "before a competent tribunal, officer, or person." (11) Courts have construed this phrase as rendering [section] 1621 applicable in a broad range of situations, with limitations existing where testimony is made to what is defined as an "incompetent" tribunal, officer, or person. (12) A grand jury that has exceeded its term or has undertaken an investigation outside its powers is not a competent body for the purposes of [section] 1621. (13) Similarly, a legislative committee is not a competent tribunal if it acts outside a legitimate legislative purpose (14) or if it lacks a quorum, (15) However, the competency of a tribunal is not compromised for purposes of [section] 1621 because it lacks diversity or subject matter jurisdiction. (16) Nor is a tribunal incompetent because the statutory offense that formed the basis of the proceeding was imperfectly pleaded (17) or later found to be unconstitutional. (18)

B. False Testimony to Court or Grand Jury

Congress enacted [section] 162319 to "facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries." (20) The statute operates 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." (21) 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. (22) The statute applies without restriction to the broad range of proceedings that fall within this category. (23) Additionally, federal courts have upheld the constitutionality of [section] 1623, even though some of its provisions depart from the common law rules regarding perjury prosecutions. (24)

C. Subornation of Perjury

Section 16222 (5) prohibits convincing another to commit "any perjury," whether under [section] 1621 or [section] 1623, (26) though the elements the government must prove to secure a subornation of perjury conviction will vary depending on whether [section] 1621 or [section] 1623 underlies the [section] 1622 prosecution. …

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