Friday, September 14, 2007
Further thoughts on the earlier post (here) about a story in The Oregonian (here) in which lawyers and judges decry the amount of perjury that seems to be occurring in court, and the paucity of prosecutions for the lies. One of the best lines in the article is from former NADCL president John Henry Hingson III, who notes that divorce court is the place to go if you want to see perjury: "The grand-slam, home-run winner is in domestic relations court. People in divorce cases act crazy." Of course, labeling something as a lie is easy to do, but proving perjury is a much more difficult task. In addition to older common law requirements like the two-witness rule, or now the two independent pieces of evidence requirement, the Supreme Court's decision in Bronston v. United States, 409 U.S. 352 (1973), requires more than just inconsistent or evasive answers. In Bronston, the Court held that a defendant cannot be convicted if the answer is literally true. Thus, the government cannot prosecute a witness for evasive answers, or ones that have enough ring of truth that it cannot be shown to be demonstrably false..
Another way to avoid a perjury charge is to correct testimony to show that the mistake was only inadvertent, or at least not a clearly intentional falsehood. There are not many crimes that allow a do-over, but 18 U.S.C. Sec. 1623(d), one of the two perjury statutes, does allow a witness to change the testimony to cure any false statement, or misstatement. It provides, "Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed." A recent incident brought that provision to mind. Director of National Intelligence Admiral Mike McConnell issued a statement correcting testimony he gave to Congress about the effectiveness of the recently-passed Protect America Act. Admiral McConnell cited the Act at a Senate Committee hearing as being helpful in the recent arrest of three alleged terrorists in Germany, but in a statement (here) he now recants that testimony:
During the Senate Committee on Homeland Security and Governmental Affairs hearing on September 10, 2007, I discussed the critical importance to our national security of the Foreign Intelligence Surveillance Act (FISA), and the recent amendments to FISA made by the Protect America Act. The Protect America Act was urgently needed by our intelligence professionals to close critical gaps in our capabilities and permit them to more readily follow terrorist threats, such as the plot uncovered in Germany. However, information contributing to the recent arrests was not collected under authorities provided by the Protect America Act.
Not that Admiral McConnell's testimony would have constituted perjury even without the correction, but claims will no doubt fly around Capitol Hill about lies and perjury. (ph)