The D.C. Bar will be closed for the holidays December 24–January 1
 

Washington Lawyer

Legal Spectator: Truth, Falsehood, and the Law

From Washington Lawyer, May 2004

By Jacob A. Stein

spectator The Martha Stewart case focused attention on how the law deals with lying. People lie to conceal something already done. What was done may be illegal, immoral, embarrassing, or any combination of the three. The effort to conceal converts something that may be of no great consequence into something very serious, a felony.

Let us begin with perjury. Perjury is defined in two places in title 18 of the United States Code. The first is section 1621. This is the general perjury statute.

Perjury is stating under oath as a material fact a lie with the intent to deceive. The government must prove, first, that you were under oath. Second, that what you said was material, that is, of some significance. Third, that you lied and you intended to lie.

How does the government prove that? It does so by a witness who says that what you said was untrue. The testimony of one witness (he said, she said) will not do it. There must be two witnesses or one witness plus corroboration. The corroboration may be in the form of documentary evidence or facts related to your conduct, in addition to what you said under oath.

The general perjury statute picks up many statements that have nothing to do with the government. For instance, testimony in a deposition when you are under oath or in an affidavit.

The second place where perjury is defined is section 1623. It is grand jury perjury.

The statute says that the crime consists of stating under oath to a grand jury a material fact that is a lie, the same as set forth in section 1621. But there is more. The government can prove its case by the testimony of one witness who says you lied. The statute does away with the two-witness-or-one-witness-plus-corroboration rule. The government can also prove its case by showing that you made contradictory statements before a grand jury, and the government need not prove which of the statements is true or false. As we see, it is easier for the government to get a conviction if the lying is before a grand jury. Why should this be? There is no good reason except that prosecutors wanted it that way.

There is another statute favored by prosecutors to catch liars. No oath is required. No special corroboration is required. It is the prosecutor’s delight. It is the false statement statute, title 18-1001. You will see references to it in the lower left-hand corner of many government documents. It says that signing a document that contains a false statement may be a violation of title 18-1001.

Here is the relevant language:

Sec. 1001. Statements or entries generally
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
   (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
   (2) makes any materially false, fictitious, or fraudulent statement or representation; or
   (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry. . . .
     Let’s talk more about section 1001. I want you to see how dangerous it is.

The government proves the crime by showing that (1) you made a false statement or concealed something; (2) the statement was material; (3) it was done knowingly and willfully; and (4) you made it directly or indirectly to the United States government.

The statement need not be written. It need not be under oath. Silence may constitute a false statement if silence is misleading. A statement may be considered a violation even though it is literally true but is misleading.

There need be no transcript of the question asked and the answer given. The testimony of one witness may be sufficient to make out the government’s case.

In the Martha Stewart case the codefendant, Peter Bacanovic, allegedly gave a false statement under oath. He was charged under the general perjury statute, title 18-1621. Martha Stewart allegedly gave a false statement to the government, but not under oath. She was charged under the false statement statute, title 18-1001. The jury was instructed that in order to convict Bacanovic of perjury the government must offer proof of two witnesses or one witness with corroboration. But in order to convict Stewart no extra proof was required.

Each of the three statutes—perjury, grand jury perjury, and false statement—carries a five-year sentence.

When we talk about unpleasant things like lying, we end up with another unpleasant subject, lie detectors.

Lewis Thomas, the distinguished physician and author, says the lie detector gives him hope that the world is all right despite the overwhelming reasons for discouragement. The lie detector proves that we cannot tell a lie, even a small one, without setting off a smoke alarm deep in the brain, resulting in the sudden discharge of nerve impulses and neurohormones. This is recorded by the lie detector gadgetry along with other changes including the heart rate and the manner of breathing.

Thomas says this is good news. It proves we are a moral species designed to be truthful to one another. We have evolved beyond guiltless mendacity, as is the case with animals who lie to one another all the time. Biologically speaking, it is healthy for us to stop lying to one another, whenever possible.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.