98-807 A
Updated September 30, 1998
CRS Report for Congress
Received through the CRS Web
Perjury Under Federal Law: A Sketch of the
Elements
Charles Doyle
Senior Specialist
American Law Division
Summary
There are three general federal perjury laws. One, 18 U.S.C. 1621, outlaws
presenting material false statements under oath in federal official proceedings. A
second, 18 U.S.C. 1623, bars presenting material false statements under oath before or
ancillary to federal court or grand jury proceedings. A third, 18 U.S.C. 1622
(subornation of perjury), prohibits inducing or procuring another to commit perjury in
violation of either section 1621 or section 1623. This report describes the provisions of
the three statutes. It is an abbreviated version of CRS Report 98-808, Perjury Under
Federal Law: A Brief Overview
, stripped of most footnotes and citations. This report
will be updated consistent with the dictates of 2 U.S.C. 166(d)(5).
Introduction
Although it now covers more than court proceedings, the definition of perjury has
not changed a great deal otherwise since the framing of the Constitution. Blackstone
described it as “a crime committed when a lawful oath is administered, in some judicial
proceeding, to a person who swears wilfully, absolutely and falsely, in a matter material
to the issue or point in question.”
Perjury Under 18 U.S.C. 1623
“Congress enacted §1623 as part of the 1970 Organized Crime Control Act to
facilitate perjury prosecutions and thereby enhance the reliability of testimony before
federal courts and grand juries.” It nevertheless embodies most of the same basic perjury
elements (stripped of some of the technical requirements) and carries the same penalties
as the more traditional section 1621. Parsed into elements, it declares that:
I. Whoever
II. a. under oath or
b. in any
Congressional Research Service ˜ The Library of Congress

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i. declaration,
ii. certificate,
iii. verification, or
iv. statement
under penalty of perjury as permitted under section 1746 of title 28, United
States Code
III. in any proceeding before or ancillary to
a. any court or
b. grand jury of the United States
IV. knowingly
V. a. makes any false material declaration or
b. makes or uses any other information, including any
i. book,
ii. paper,
iii. document,
iv. record,
v. recording, or
vi. other material,
knowing the same to contain any false material declaration,
shall be fined under this title or imprisoned not more than five years, or both,” 18 U.S.C.
1623(a)(enumeration added).
In most cases, the courts abbreviate their description of the elements and state that
to prove perjury the government must establish that the defendant “(1) knowingly made
a (2) false (3) material declaration (4) under oath (5) in a proceeding before or ancillary
to any court of grand jury of the United States.”
The forum for the allegedly perjurious declaration must be a “proceeding before or
ancillary to any court or grand jury of the United States.” An interview in an attorney’s
office in preparation for a judicial hearing cannot be considered such an ancillary
proceeding, but the phrase “proceedings ancillary to” court or grand jury proceedings does
cover proceedings to take depositions in connection with civil litigation, as well as a
variety of pretrial proceedings in criminal cases, including bail hearings, venue hearings,
or suppression hearings.
The Supreme Court’s observation that a statement that is misleading but literally true
cannot support a conviction under section 1621 because it is not false, applies with equal
force to perjury under section 1623. Similarly, perjury cannot be the product of
confusion, mistake, or faulty memory, but must be a statement that the defendant knows
is false, although this requirement may be satisfied with evidence that the defendant was
deliberately ignorant or willfully blind to the fact that the statement was false. On the
other hand, a defendant cannot be guilty of perjury for a truthful answer to a reasonable
interpretation of an ambiguous question.
Materiality is perhaps the most nettlesome of perjury’s elements. It is usually said
that a statement is material “if it has a natural tendency to influence, or is capable of
influencing, the decision of the decisionmaking body to whom it is addressed.” This
definition is not easily applied to false statements made in civil depositions. In such
cases, one appellate court has recently described the lower federal courts as divided
between the view (1) that a statement in a deposition is material if a “truthful answer

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might reasonably be calculated to lead to the discovery of evidence admissible at the trial
of the underlying suit” and (2) that a statement is material “if the topic of the statement
is discoverable and the false statement itself had a tendency to affect the outcome of the
underlying civil suit for which the deposition was taken.” In any event, a statement is no
less material because it did not or could not divert the decisionmaker.
Subsection 1623(c) permits a perjury conviction simply on the basis of two
necessarily inconsistent material declarations rather than a showing that one of the two
statements is false.
Conviction does require showing, however, that the two statements were made under
oath; it is not enough to show that one was made under oath and the other was made in
the form of an affidavit signed under penalty of perjury Moreover, the statements must
be so inherently contradictory that one of them of necessity must be false.
Subsection 1623(e) permits a perjury conviction without compliance with the
traditional two witness rule. Some years age, the Supreme Court declined to reverse an
earlier ruling that “[t]he general rule in prosecutions for perjury is that the uncorroborated
oath of one witness is not enough to establish the falsity of the testimony of the accused
set forth in the indictment.” The two witness rule rests on a common law rather than a
constitutional foundation and consequently can be abrogated by statute which Congress
has done in subsection 1623(e) without offending constitutional principles.
In contrast to the other subsections of section 1623, subsection 1623(d) offers a bar
to prosecution of those accused of perjury under the section. The defense is stated in
fairly straightforward terms, “[w]here 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,” 18 U.S.C.
1623(d). Although phrased in different terms, the courts seem to agree that repudiation
of the false testimony must be specific and thorough.
Perjury Under 18 U.S.C. 1621
Section 1621 was “enacted in an effort to keep the course of justice free from the
pollution of perjury.” When Congress passed section 1623, it did not repeal section 1621
either explicitly or by implication; where its proscriptions overlap with those of section
1623, the government is free to choose under which it will prosecute. In many instances,
it affords greater protection than section 1623. It prohibits perjury before official
proceedings — both judicial and nonjudicial. Separated into its elements, the section
provides that:
(1)
I. Whoever having taken an oath
II. before a competent tribunal, officer, or person,
III. in any case in which a law of the United States authorizes an oath to be
administered,
IV. a. that he will

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i. testify,
ii. declare,
iii. depose, or
iv, certify truly, or
b. that any written
i. testimony,
ii. declaration,
iii. deposition, or
iv. certificate
by him subscribed, is true,
V. willfully and contrary to such oath
VI. a. states or
b. subscribes
any material matter which he does not believe to be true; or
(2)
I. Whoever in any
a. declaration,
b. certificate,
c. verification, or
d. statement
under penalty of perjury as permitted under section 1746 of title 28, United States
Code,
II. willfully subscribes as true
III. any material matter
IV. which he does not believe to be true
is guilty of perjury and shall, except as otherwise expressly provided by law, be fined
under this title or imprisoned not more than five years, or both. This section is applicable
whether the statement or subscription is made within or without the United States,” 18
U.S.C. 1621 (enumeration added).
The courts generally favor the abbreviated encapsulation from United States v.
Dunnigan: “A witness testifying under oath or affirmation violates this section if she
gives false testimony concerning a material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty memory.”
Testimony that is literally true , even if deceptively so, cannot be considered false
for purposes of a prosecution under section 1621. On the other hand, under either section
1621 or section 1623 the false statement may consist of testimony that the witness does
not remember or does not know when the evidence clearly demonstrates that he does.
The test for materiality under section 1621 is the same as it is under section 1623 —
“whether the false statement has a natural tendency to influence or [is] capable of
influencing the decision required to be made.”
Conviction under section 1621 requires not only that the defendant knew his
statement was false (“which he does not believe to true”), but that his false statement is
“willfully” presented. There is but scant authority on precisely what “willful” means in
this context. The Supreme Court in dicta has indicated that willful perjury consists of

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deliberate material falsification under oath.” Other courts have referred to it as acting
with an “intent to deceive” or as acting “intentionally.”
Subornation of Perjury
Section 1622 outlaws procuring or inducing another to commit perjury: “Whoever
procures another to commit any perjury is guilty of subornation of perjury, and shall be
fined under this title or imprisoned for not more than five years, or both, 18 U.S.C. 1622.
The crime consists of two elements — (1) an act of perjury committed by another (2)
induced or procured by the defendant. Perjury under either section 1621 or 1623 will
support a conviction for subornation under section 1622, but commission of an act of
perjury is a necessary element of subornation. Although the authorities are exceptionally
sparse, it appears that to suborn one must know that the induced statement is false and that
at least to suborn under section 1621 one must also knowingly and willfully induce.