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NCJ Number
American Criminal Law Review Volume: 18 Issue: 2 Dated: (Fall 1980) Pages: 263-273
T E Kehoe
Date Published
11 pages

This discussion of the Federal crime of perjury examines the elements of the crime, compares the effects of the two Federal perjury statutes, and suggests defenses.


Sections 1621 and 1623 of title 18, variously amended, of the U.S. Code define perjury before a Federal tribunal. The elements of perjury are (1) that the declarant took an oath to testify truthfully, (2) that he willfully made a false statement contrary to that oath (3) that the declarant believed the statement to be untrue, and (4) that the statement related to a material fact. It is easy to prove that a declarant took an oath. To prove that the witness gave a willfully false statement, however, the question asked must have been unambiguous. Moreover, the U.S. Supreme Court has ruled a perjury conviction cannot be based on merely unresponsive or evasive testimony calculated to mislead but containing the literal truth. Testimony is material if it can impede the proceeding or influence the decision of tribunal or investigating body and may pertain to the main issue, collateral issues, or even the credibility of witnesses. Section 1621 is violated once a declarant makes a false statement. However, Section 1623 establishes his right to recant previous false testimony. The recantation must be made in the same continuous court, the false statement must not have substantially affected the proceeding, and the falsity must not otherwise have been detected. The Declarant may then use his recantation to show an absence of intent to mislead. Prosecutors, however, are not obliged to apprise a witness of his right to recant. Although perjury convictions under Section 1621 require the collaboration of at least two witnesses, this does not apply to Section 1623. A conviction under 1623 may be challenged if the indictment fails to state the precise falsehood alleged and the factual basis for the conclusion of falsehood written clearly enough for a jury's determination. Other defenses include the challenge of duplicitous charges and collateral estoppel where the witness's testimony led to an acquittal by jury. Finally, interplay between Sections 1621 and 1623, with their differing penalties and levels of proof, has led to debate about prosecutorial discretion in determining the appropriate statute under which to charge a defendant. Footnotes are included.