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June 01, 2019 Feature

Liars Don’t Always Lose

Jacob Stein (originally published in Spring 1996)

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He told them the truth and they fell for it.

—A lawyer referring to his client’s testimony

We are, I know not how, double in ourselves, so that we believe what we disbelieve and cannot rid ourselves of what we condemn.


Rule 102 of the Federal Rules of Evidence declares that a key objective of the rules is the ascertainment of truth. No law school would presume to offer a course in Truth. Truth is too unwieldy a subject for a law school class. Truth, perfect truth, is a platonic ideal existing 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 is near. When it hits the air, it is sodium oxide, and, of course, there is salt, sodium chloride. But pure sodium? We never see it.

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?”

The truth lawyers see is a sodium truth. It is always truth combined with something else. There is the taint related to bias and prejudice. There is the taint of deliberate falsehood. And a dozen more. No, truth is not for law schools. But, I suggest, falsehood is a proper subject for law schools. Law schools should put in one compact course what every lawyer needs to know concerning how the law treats falsehood. It is knowledge required as a protection for the lawyer and for the client. In addition, a lawyer should know something concerning cases of historical significance in which falsehood played a part. Otherwise, the lawyer is ignorant of his or her professional literature.

Lawyers and laypeople see on any number of documents, just above the signature line, the legend that says a false statement subjects the signatory to prosecution under Title 18 U.S.C. § 1001. What is Title 18 U.S.C. § 1001? Is it a perjury statute? And if it is not, what is it? In the next few pages I hope to supply some, only some, of the information concerning falsehood that no lawyer should leave home without. Let us begin with Title 18 U.S.C. § 1001. It is a federal criminal statute. 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.

Nine lines that produce prosecutions, convictions, resourceful defenses, and an occasional suicide. The statute, in an earlier version, was enacted in 1940. Yet, within the last two years, the Supreme Court of the United States found reasons to interpret the statute’s meaning.

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. Sworn or unsworn. It may be voluntary or required by law. It can be signed or unsigned.

You can violate the statute even though the government suffers no loss because of reliance on the false statement. You can violate this law even though the false statement is not made directly to the federal government but to a private person or institution that 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.

The statement must be directed to a governmental department or agency. The Supreme Court has declared that making a false statement to a judicial body is not a violation of 18 U.S.C. § 1001 because it is not a matter within the jurisdiction of any department or agency.

Circumstances often arise where a denial is made in response to an FBI agent or other agency investigator who asks if you committed a crime. Is that denial, that exculpatory “No” standing alone, the basis for a prosecution? Many courts hold that the exculpatory “No” cannot be the basis for a Title 18 U.S.C. § 1001 violation. This is a controversial area.

Most prosecutions are brought under the general false statement statute despite the fact that there are many particularized false statement statutes dealing with specialized areas, such as banking and claims against the government.

How does perjury differ from a false statement prosecution? Perjury has two elements identical to the false statement statute. It involves a deliberately false statement and concerns 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. . . .

The indictment, prosecution, and conviction of Alger Hiss for perjury altered the political landscape. In 1948, a committee of Congress, known as the Committee on Un-American Activities of the House of Representatives, conducted investigations concerning subversive activities of governmental employees and others. That August, 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, a member of the investigating committee, 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 denied Chambers’s 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. At that 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. But Stryker did not represent Hiss in that second trial. If you wish to read more concerning the Hiss case and why Hiss changed lawyers, read Alan Weinstein’s book entitled Perjury.

Perjury Requirements

Affirming the conviction, United States v. Hiss, 185 F.2d 822 (2d Cir. 1950), the court of appeals identified a unique evidentiary requirement particular to a perjury prosecution. As a matter of law, just one witness’s uncorroborated testimony 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. This unique evidentiary rule arose in England in the 17th 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 United States v. Chaplin, 25 F.3d 1373 (7th Cir. 1994), equally honest witnesses may have differing recollections.

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, D.C., 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. See Sweig v. United States, 441 F.2d 114 (2d Cir. 1971).

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 his morning appearance before the grand jury and 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 cases are interesting because they stand or fall on the nature of the questions asked and the precise answer given. Bronston v. United States, 409 U.S. 352 (1973), demonstrates the point. Samuel Bronston owned Samuel Bronston Productions, Inc., which produced motion pictures in various European locations and opened bank accounts in a number of foreign countries. Bronston Productions went into Chapter 11 bankruptcy proceedings. During the proceedings, Bronston was questioned concerning the company’s assets. He was indicted for perjury based on answers and, in particular, on the following colloquy:

The first answer was true. When he 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 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.”

[I]f 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.

There you have a glimpse of the law of false statement and perjury. Let me now repeat what a great Chicago criminal lawyer, Charlie Bellows, once was heard to say: “It is better to have lost a perjury case than never to have tried one at all.”

Now let’s take a look at Title 18 U.S.C. § 1512, a statute entitled “Tampering with a Witness, Victim, or an Informant.”

Part of the federal statutory scheme dealing with 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:

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 for 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. I was comforted to read what a trial judge stated in dealing with a post-trial motion for acquittal after a conviction for obstructing justice: “There is a fine line between coaching someone to lie and coaching someone to present a story in the best light.” United States v. Poppers, 635 F. Supp. 1034 (N.D. Ill. 1986). The post-trial motion for acquittal on that count was granted.

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 would give 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?

There is a truth machine long out of favor in the courts but now suddenly back. It is the polygraph. This is one of the law’s ironies. The Frye test, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), was used before the adoption of the Federal Rules of Evidence to exclude polygraphs. Frye held that so-called scientific evidence must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Polygraph evidence had not gained such acceptance. Polygraphs were treated as per se inadmissible.

Frye was supplanted as a controlling test under the Federal Rules in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court held that scientific evidence is admissible if it assists the trier of fact under Rule 702 and meets the relevancy standards of Rules 401–403. The trial judge must determine the scientific validity of the evidence. The court may consider a wide range of factors, including whether the scientific theory or technique can be and has been tested, whether it has been subject to peer review, and questions concerning the potential rate of error of the technique. General scientific acceptance, as in Frye, may also bear on the inquiry. But it is not controlling. Daubert did not involve a polygraph. It involved expert testimony concerning the effect of a Dow chemical drug, Bendectin. In no time at all, there were Daubert hearings concerning polygraph results as evidence. Since Daubert, courts are being urged to declare that polygraph test results are no longer per se inadmissible. See United States v. Posado, 57 F.3d 428 (1995). Daubert’s flexible inquiry approach has opened the door to the admissibility of polygraph results. Some may be admitted into evidence; some may not. It depends. United States v. Padilla, 908 F. Supp. 923 (S.D. Fla. 1995).

The polygraph is only as reliable as the operator’s interpretations. Does this mean the operator should be polygraphed? As the text writers say, we must await further developments in the law. As long as the search for truth continues, there will be the impediment of falsehood. One does not exist without the other. As one rises, the other falls. We might say it is a balancing test. Two for the seesaw.  

Jacob Stein

At the time of publication, the author was a senior editor of Litigation.

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