![[back]](../../left.gif){kind=small}
Return
to COSMOS 1998 Table of Contents Return
to COSMOS Journals Return
to COSMOS Home Page JACOB A. STEIN
Laws about falsehood, perjury and obstruction of justice are discussed, as well as their effects on Alger Hiss, President Nixon, and Mr. Bronston.
The papers carry front page stories concerning lying, perjury and the obstruction of justice. Lying, perjury and obstruction are efforts to conceal or withhold the truth.
But, truth, perfect truth, is the Platonic ideal existing only in the abstract. Truth is like the element sodium. It is everywhere, but never in its pure form. It is one of those elements that combines with whatever it is near. When it hits the air it is sodium oxide and, of course, there is sodium chloride. Lawyers see truth as sodium truth. Truth combined with something else, bias and prejudice and the deliberate taint of falsehood. There is a story that in a courtroom in Kentucky when a witness was asked to swear to tell the truth, the whole truth and nothing but the truth, he replied, “which one do you want?”
LAWS DEALING WITH FALSEHOOD
Most government documents, such as job applications, contain a statement just above the signature line that says a false statement subjects the signatory to prosecution under Title 18 U.S.C. 1001. What does Title 18 U.S.C. 1001 say? Is it a perjury statute? And if it is not, what is it?
Title 18 U.S.C. 1001 is a federal criminal statute making it a crime to tell a lie. Here it is:
18-1001—Statements or entries generally
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
Eleven lines that produce prosecutions, convictions, resourceful defenses and an occasional suicide.
Although most criminal statutes are narrowly construed, the courts give 18 U.S.C. 1001 a broad interpretation. A false statement may be written. It may be oral. It may be sworn or unsworn. It may be voluntary or required by law. It may be signed or unsigned.
You can violate the statute even though the governmental agency suffers no loss because of reliance on the false statement. You can violate the statute even though the false statement is not made directly to the federal government but to a private person or institution which implements federal programs.
The false statement must be a real lie. By that I mean it must be intentional and made with knowledge of its falsity. The statement must relate to a material issue. The test of materiality is whether the statement tends to influence, or is capable of influencing, the decision of the party to whom it is directed, even though that person ignores it.
Circumstances often arise when a denial is made in response to an FBI agent or other agency investigator, who asks if the person interviewed committed a crime. Is that denial, that exculpatory “No” standing alone, the basis for a prosecution? The answer is yes it is.
PERJURY
Let us turn to the subject of perjury and how it differs from a false statement prosecution. Perjury has two elements identical to the false statement statute. It involves a deliberately false statement and it is a statement concerning a material issue. But in order to be perjury it must involve a false statement made under oath or in any form allowed by law to be substituted for an oath. Perjury is false swearing. The basic perjury statute provides in relevant part:
Whoever…having taken an oath before a competent tribunal…or person…that he will testify…truly, or that any written…declaration…by him…is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true…is guilty of perjury…
ALGER HISS
The indictment, prosecution and conviction of Alger Hiss of perjury is the perjury prosecution that altered the political landscape. A committee of Congress known as the Committee on Un-American Activities of the House of Representatives, in 1948, conducted investigations concerning subversive activities of governmental employees and others. In August of 1948, Whittaker Chambers appeared before the Committee. He said he had been a member of the Communist Party and that Alger Hiss had been an active member of the party. Richard M. Nixon was a member of the investigating Committee. He uncovered evidence corroborating Chambers’s accusation. Hiss was a prominent New Dealer, a very visible Democrat. The Hiss case was at the vortex of political controversy. It put Nixon on the front pages and then in the Presidency.
Hiss appeared before a grand jury in New York and had denied Chambers’ accusation that he, Hiss, turned over State Department documents to Chambers. The grand jury indicted Hiss for perjury. In Hiss’s first trial the jury failed to agree. In the first trial Hiss was represented by Lloyd Paul Stryker, a colorful New York trial lawyer and author of an interesting book on trial advocacy. In Hiss’s second trial the jury agreed and convicted. Stryker did not represent Hiss in that second trial. The conviction was affirmed on appeal, U.S. v. Hiss, 185 F.2d 822 (1950). In affirming, the court identified a unique evidentiary requirement particular to a perjury prosecution. As a matter of law the uncorroborated testimony of one witness is not enough to prove the crime of perjury. There must be two witnesses who testify that the accused lied under oath, or there must be one witness plus corroboration by other evidence to substantiate the testimony of the one witness. If you wish to read more concerning the Hiss case and why Hiss changed lawyers, read Alan Weinstein’s book, entitled Perjury.
This unique evidentiary rule arose in England in the seventeenth century for reasons that no longer apply. Nevertheless, the rule is still enforced. It protects an honest witness from spiteful retaliation in the form of unfounded perjury prosecutions and, as the court stated in U.S. v. Chaplin, 25 F.3d 1373 (7th Cir. 1994), equally honest witnesses may have differing recollections. It is a rule that requires the government to prove more than just the fact that one person contradicts another and both are under oath.
PRESIDENT NIXON ON PERJURY
President Nixon returned to the subject of perjury some years later. As the Watergate controversy advanced the prospect that President Nixon’s associates would be called before the grand jury sitting in Washington, DC, President Nixon gave John Dean and others legal advice. He told them if they were called before the grand jury they should respond to difficult questions by saying “I don’t remember.” It was Nixon’s advice that there could be no perjury prosecution based on such a response. He was wrong.
Perjury before a grand jury is covered by a special statute with odd features. If one lies before a grand jury and then recants—tells the truth—before the grand jury or the prosecutor is aware of the lie, the witness has a defense to a perjury prosecution. In some perjury prosecutions a witness tells one version in the morning of his appearance before the grand jury and tells a different version in the afternoon. The grand jury perjury statute states that the government can make out a case based on the contradictory testimony itself. It need not prove which statement was true and which statement was false.
PERJURY AND THE QUESTION ASKED
Perjury cases are interesting because they stand or fall on the nature of the questions asked and the precise answer given. Bronston v. U.S., 409 U.S. 352, demonstrates the point. Samuel Bronston owned Samuel Bronston Productions, Inc., which produced motion pictures in various European locations.Bronston Productions opened bank accounts in a number of foreign countries.
Bronston Productions went into Chapter XI Bankruptcy proceedings. During the proceeding Bronston was questioned concerning the company’s assets. Bronston was indicted for per jury based on answers, and in particular on the following colloquy:
Q: Do you have any bank accounts in Swiss banks, Mr. Bronston?
A: No, sir.
Q: Have you ever?
A: The company had an account there for about six months, in Zurich.
The first answer was true. When Mr. Bronston testified he had no Swiss accounts. The second answer was tricky. Bronston at one time had a Swiss account. When Bronston answered the second question, he evaded. He answered for the company but not for himself. The government’s prosecution for perjury went forward on the theory that in order to mislead the questioner, Bronston answered the second question with literal truthfulness, but he addressed the company’s assets and not his own. He implied that he had no personal Swiss bank account at the relevant time. He was convicted of perjury. The conviction was affirmed on appeal. The Supreme Court reversed. It held that Congress did not intend to extend the coverage of the perjury statute to answers untrue only by “negative implication.” “…if the questioner is aware of the unresponsiveness of the answer, with equal force it can be argued that the very unresponsiveness of the answer should alert counsel to press on for the information he desires. It does not matter that the unresponsive answer is stated in the affirmative, thereby implying the negative of the question actually posed; for again, by hypothesis, the examiner’s awareness of unresponsiveness should lead him to press another question or reframe his initial question with greater precision. Precise questioning is imperative as a predicate for the offense of perjury.”
OBSTRUCTION OF JUSTICE
Now let’s take a look at Title 18 U.S.C. 1512, a statute entitled “Tampering With a Witness, Victim, or an Informant.” This is part of the federal statutory scheme known as obstruction of justice. It says in substance that whoever knowingly “engages in misleading conduct toward another person, with intent to influence the testimony of any person in an official proceeding has committed an offense.” It further states that: “In a prosecution for an offense under this section it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully.” The penalty: a fine of not more than $250,000 or imprisonment not more than 10 years, or both. Each time I read this statute I feel faint. A vengeful prosecutor can threaten a lawyer with prosecution under this statute based on a witness interview and the witness’s version of the interview. A lawyer who tells a witness what other witnesses have said arguably is engaging in misleading conduct with intent to influence testimony.
A TRUTH MACHINE
What if falsehood could be identified with scientific accuracy? At first thought, it sounds just like what is needed. It would introduce something akin to the use of DNA as the absolute determinant in certain cases. On the other hand, a scientific truth machine gives great power to the enforcer and great apprehension to the enforcee. Once a falsehood is detected on a preliminary matter it justifies further questioning. One’s entire life is then at the disposal of the truth machine. It would be inhuman in its consequences. Was not the terror of the French Revolution a metaphor of the truth machine? I end with Montaigne’s biting comment on human nature:
We are, I know not how, double in ourselves, so that we believe what we disbelieve and cannot rid ourselves of what we condemn.
Something to think about.
Jacob A. Stein
(CC ‘75) is a
Senior Partner in Stein, Mitchell & Mezines,
1100 Connecticut Avenue, NW,
Washington, DC 20036;
phone: (202) 737-7777;
fax: (202) 296-8312
Return
to COSMOS 1998 Table of Contents
Return
to COSMOS Journals
Return
to COSMOS Home Page