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Perjury & making false statements are serious federal felonies carrying up to 5 years in prison.
INTRODUCTION
Before testifying under oath in any proceeding, or filing papers with government authorities, it is essential to understand the crimes of perjury and making false statements and their potential consequences.
Perjury, under 18 US Code Section 1621, can occur in many settings. It is more than lying under oath while testifying in court. It also includes lying at congressional hearings or in depositions in civil lawsuits. Sworn statements made to governmental agencies like the Internal Revenue Service or in financial affidavits (such as loan applications and tax filings) are also covered.
Suborning perjury applies when a person induces or causes another to commit perjury. (18 US Code Section 1622)
A closely related crime is making false statements under 18 US Code Section 1001.
Title 18, United States Code, Section 1001 makes it a crime to:
1) knowingly and willfully;
2) make any materially false, fictitious, or fraudulent statement or representation;
3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.
The language of Section 1001 is very broad and applies in cases where a false statement does not meet all the requirements necessary for perjury. For example, perjury covers statements under oath. When a witness’ false statement was not under oath, 18 USC Section 1001 for making false statements to government agents may still apply.
In criminal cases, government investigators often talk to witnesses while out on the field. Lying to investigators during such a witness interview may not constitute perjury, but it can still be punishable as a crime for making false statements.
Like in any investigation, perjury and false statement cases present a range of potential outcomes. Sometimes, it may be possible to avoid formal criminal charges or prison altogether. Prison Professors, an Earning Freedom company, works alongside (not in place of) criminal defense attorneys to help clients proactively navigate through white-collar cases and prosecutions. It’s our experience that more well-informed and proactive clients obtain better outcomes.
*Pro-Tip: Remember to consult criminal defense counsel for legal advice regarding any court case.
DIFFERENCES BETWEEN PERJURY & MAKING FALSE STATEMENTS
Perjury requires a knowingly false statement under oath that is material or relevant to the matter at hand. Just remaining silent or refusing to provide any statement at all –so-called lies of omission– do not constitute perjury. And for perjury, the statement must be literally false and made with intent to deceive or mislead.
In contrast, making false statements applies when people lie to the government regardless of whether it’s under oath or not. The false statement law is so broad that it can apply to almost any interaction people have with government agents and agencies.
In the highly publicized case of business mogul Martha Stewart, Stewart was convicted and sent to prison for making false statements to federal investigators, not perjury or insider trading. Stewart lied about receiving (and acting upon) inside information.
And Michael Cohen, former President Donald Trump’s longtime personal attorney, was sentenced to prison for lying to Congress. Cohen pleaded guilty to a single count of making false statements to the Senate Intelligence Committee during a closed-door meeting.
Both perjury and making false statements are “process offenses” since they interfere with the administration of justice and undermine the integrity of the process.
FEDERAL & STATE PENALTIES
Perjury and making false statements are felonies at both the federal and the state levels.
A person convicted of perjury under federal law may face up to five years in prison. Perjury also carries fines and probation, depending on the context and the severity of the crime. Potential federal penalties for suborning perjury or making false statements are similar.
The punishment for perjury (or other similar offenses) under state law varies from state to state. Still, it is a felony and carries a possible prison sentence of at least one year, plus fines and probation.
Sentencing judges may increase the penalties in perjury cases depending on the conduct’s role in the proceedings. For example, when a witness in his own criminal trial commits perjury, the judge may enhance the sentence on the underlying conviction.
It’s also important to note that federal judges will not hesitate to refer witnesses to the Department of Justice for prosecution when they lie in court proceedings. The DOJ generally complies.
IS PERJURY HARD TO PROVE?
In review, the crime of perjury occurs when someone under oath, knowingly and with intent to mislead, makes a false statement during a court case or other legal proceeding. The false statement must be material to the subject matter of the proceeding.
Put differently, a conviction for perjury requires that prosecutors establish a knowingly false, material statement, under oath, made with intent to mislead.
The general consensus is that perjury is difficult to prove.
A prosecutor has to show that there was a material misstatement of fact under oath and that it was so willful that the person knew it was false when they said it. To achieve that, a prosecutor must present evidence that contradicts a witness’ sworn statement and proves the witness’ intent to deceive or mislead.
In defense, the accused will attempt to show any of the following:
- That mere silence or refusal to speak is not enough.
- That the false statement was not under oath.
- That the witness did not know the statement was false.
- That the witness did not intend to mislead.
- That the statement was factually true.
- That the statement was the result of confusion, memory lapse, or mistake.
- That the statement had no relevance or bearing on the proceedings (it was not material).
- That the statement was later corrected or recanted.*
*Recanting or Correcting a False Statement. In a federal case, a witness can argue that the correction or retraction shows a lack of intent to mislead. Recanting, retracting, or correcting prior statements are not – in and of themselves – legal defenses to perjury charges. Whether such a defense is viable in a state perjury case depends on state law.
*Pro Tip: In some perjury and false statement cases, recanting or correcting false statements while the case is still pending can help mitigate potential consequences. All legal defenses and mitigation strategies should be discussed with counsel and mitigation experts.
CONCLUSION
Perjury and making false statements are serious federal felonies carrying up to 5 years in prison. They are also crimes under state laws. Before testifying under oath in any proceeding, or filing papers under oath with government authorities, it is essential to understand the crimes of perjury and making false statements and their potential consequences.
Sentencing mitigation consultants at Prison Professors, an Earning Freedom company, help clients locate and vet legal counsel for perjury cases. We also recommend strategies to obtain the best possible outcome.
