When Is a False Statement Perjury?

In short, a false statement is perjury when it is made under oath or made under penalty of perjury.  Two separate statutes define the crime of perjury under federal law.

Both statutes, 18 U.S.C. §1621 and 18 U.S.C. §1623, criminalize essentially the same conduct.  An individual commits perjury when, under oath, he willfully (under §1621) or knowingly (under §1623) makes a false statement as to a material matter:

• To successfully prosecute an individual for perjury, the government must prove that the statements are false. Thus, a statement that is literally true, even if misleading or nonresponsive, cannot be charged as perjury.  In a prosecution under §1621, the government is required to prove that the statement is false.  By contrast, §1623 permits conviction for perjury so long as the government can prove that the defendant made two statements that are sufficiently inconsistent that one of them is necessarily false.  In other words, in a prosecution under §1623, the government does not need to prove that the statement was false; it need only prove both of them cannot be true.
• Section 1621 requires that the defendant acted willfully, while 1623 requires that the defendant acted knowingly. In practice, the two elements require essentially the same thing: that the defendant be aware he is under oath and required to tell the truth.   Additionally, the defendant must, at the time he made the statements, know that the statements are false.  Thus, if an individual was confused about the meaning of the oath, he cannot be convicted of perjury.  Likewise, he has not committed perjury if he did not believe his statements were false at the time he made them.
• The false statements must also be material. A statement is material if it is capable of influencing the decision of the decision-making body to which it is addressed.  To meet this requirement, the statement does not need to actually influence the decision; it is enough if the statement is merely capable of having such influence.

An individual can be prosecuted for perjury under §1621 no matter where he made the statements, so long as he has been placed under oath by an individual authorized to administer the oath under federal law, or makes the statements subject to the penalty of perjury.  For example, the perjury statute applies to deposition testimony in a civil case, to testimony given during a court hearing or regulatory proceeding, and to testimony given before Congress, among other proceedings.

The second perjury statute, 18 U.S.C. §1623, does not apply nearly as broadly.  False statements can be prosecuted as perjury under §1623 only if they are made in any proceeding before or ancillary to a federal court or grand jury. 

There are other differences, too.  Under the “two witness” rule, a conviction for perjury under §1621 cannot be based on the uncorroborated testimony of one witness.  A vestige of the common law crime of perjury, the “two witness” rule requires the government to put forth independent corroborating evidence of the defendant’s guilt.  Because §1623 does not derive from the common law, the “two witness” rule does not apply. 

Additionally, while §1621 applies only to a person’s own statements, the reach of §1623 extends not only to the defendant’s own statements, but to the defendant’s use of written materials that contain false statements.

Allegations of perjury are often at the center of political and other scandals.  As the federal government investigates allegations of wrongdoing, politicians and celebrities have a natural tendency to downplay their involvement when testifying before Congress or a grand jury.  To prosecutors, that may look like perjury, and a number of well-known criminal cases involved perjury charges.

For example, Major League Baseball players Barry Bonds and Roger Clemens, and track star Marion Jones, were all charged with perjury arising from investigations into performance enhancing drugs; Jones was convicted.  Former vice-presidential chief of staff Scooter Libby was convicted of perjury in connection with his grand jury testimony during the investigation into the leaking of the identity of a CIA operative.  And rapper Lil’ Kim was convicted of perjury arising from false statements she made to a grand jury about a shooting she had witnessed.

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