Defending Against a Perjury Charge: A Checklist

This checklist covers issues to consider when faced with a perjury charge under 18 U.S.C. § 1621, § 1622, or § 1623, including potential defenses and strategies counsel may use at trial.

Determine the Proper Venue

• The government can prosecute a charge under 18 U.S.C. § 1621, § 1622, or § 1623 where:
  • the person made a perjurious statement; or
  • the affected proceeding is pending, if the perjury occurred in an ancillary proceeding.
• Consider moving to transfer venue if the alleged criminal conduct has no substantial contacts to the venue after evaluating:
  • the location of the crime;
  • the elements and nature of the crime;
  • the place the criminal conduct affected; and
  • the suitability of the government’s chosen venue for accurate factfinding.

Challenge the Evidence

Defending a § 1621 or § 1623 Perjury Charge

The government must prove the elements of a perjury charge beyond a reasonable doubt. Consider attacking the sufficiency of the government’s evidence supporting any of the following elements:

• The defendant made a statement under oath.
• The defendant had the required intent, which:
  • for a § 1621 charge, requires the government to prove a willful intent; or
  • for a § 1623 charge, requires the government to prove a knowing intent.
• When made, the statement was false, which:
  • for a § 1621 charge, requires the government to satisfy the two-witness rule; or
  • for a § 1623 charge, does not require the government to satisfy the two-witness rule, however, the government may prove falsity by showing that the defendant made inconsistent statements under oath.
• The false statement concerned a material matter, which means the statement must have a natural tendency to influence or possibly influence the decision that must be made.
• The defendant made the statement in a proceeding before or ancillary to any US court or grand jury, if defending a § 1623 charge.

Defending a § 1622 Subornation of Perjury Charge

Consider attacking the sufficiency of the government’s evidence supporting any of the following elements:

• A person committed perjury under the elements of § 1621 or § 1623.
• The suborner procured, induced, or instigated that person to commit perjury.
• The suborner knew, should have known, or had good reason to believe that:
  • the induced person’s statement would be false; and
  • the induced person knew their statement was false.

Assert Relevant Defenses

• Consider any relevant defenses, such as:
  • the statement was literally true, even if it was misleading;
  • the question posed to the defendant was fundamentally or arguably ambiguous;
  • the defendant’s response was fundamentally or arguably ambiguous but true under the defendant’s interpretation;
  • the government deliberately used a judicial proceeding to secure the defendant’s perjured testimony (known as a perjury trap);
  • the statement was made beyond the statute of limitations period of five years;
  • the defendant recanted their false statement, if the government charged the defendant under § 1623;
  • the indictment or information is impermissibly duplicitous, where two or more different crimes are combined into one count and the duplicitous count prejudices the defendant; or
  • the indictment or information is multiplicitous because it charges a single offense in more than one count when the alleged facts and the law dictate that the defendant only committed one crime, potentially violating the Double Jeopardy Clause.
• Keep in mind that:
  • a person receiving derivative use immunity, meaning the government cannot use the person’s responses or any information derived from the responses against them, may be prosecuted for perjury if their immunized testimony was false; and
  • under certain circumstances, the government may prosecute a person for a perjurious statement made during the trial that resulted in their acquittal without violating the Double Jeopardy Clause.