When is Lying Illegal? When Should it Be? A Critical Analysis of the Federal False Statements Act

40 Pages Posted: 5 Oct 2010 Last revised: 30 Jul 2012

See all articles by Steven R. Morrison

Steven R. Morrison

University of North Dakota School of Law

Date Written: 2009


This article examines the federal False Statements Act, 18 U.S.C. § 1001(a)(2), from the standpoints of judicial interpretation, the law’s history, legislative history and congressional intent, public policy, and criminal law theory. It concludes that the dominant judicial interpretations do not accord with congressional intent to create a limited and targeted law. The statute as interpreted is extraordinarily broad such that it should be – but has not been and probably won’t be – declared unconstitutionally vague. Whether the law is unconstitutional or not, as interpreted it does not support wise public policy nor does it accord with dominant theories of criminal law. This article suggests solutions that might repair the defects in the law.

Other articles that have considered section 1001 have not done so in the comprehensive way that this article does. As a result, this article explores issues and makes observations that have never been made before. Its comprehensive treatment of section 1001 is an original contribution to the literature in and of itself, but there are at least five specific original contributions.

First, this article explores the element of section 1001 that requires a false statement. Other articles have accepted the meaning of this element. What is “false,” however, is open to debate. Second, this article explores section 1001 in light of how we communicate. It notes that lying is prevalent in society and especially within the criminal justice system, and also argues that even when we’re not lying, we engage in “purposive communication,” which is a form of deception necessary for effective communication. I also discuss what lies are, and what types of lies there are. I do so to show that the conduct that section 1001 prohibits in a black-and-white way is actually a multicolor phenomenon. Third, I discuss section 1001’s materiality element. No other article has discussed this element in detail, even though, as I show, it is the central controversial element of section 1001 and is the source of the statute’s problems as well as its potential solution. Furthermore, I discuss the varying interpretations of the materiality element among jurisdictions. For example, some circuits have adopted what amounts to an objective reasonable person standard, while others have adopted a subjective standard. As I show, this variation goes to the heart of what section 1001 prohibits. Fourth, I discuss two different versions of the definition of materiality applied by section 1001. One version requires that the false statement be capable of influencing a government agency “to which it is addressed,” and another version need only be capable of influencing some government agency. This is a meaningful difference that hasn’t been explored in other articles or resolved in the courts or Congress. Fifth, I discuss the materiality analysis established in United States v. Gaudin, which may solve the “to which it is addressed” split. Courts have largely ignored Gaudin’s analysis, as have other commentators.

Keywords: criminal law, terrorism, false statements, section 1001

Suggested Citation

Morrison, Steven R., When is Lying Illegal? When Should it Be? A Critical Analysis of the Federal False Statements Act (2009). John Marshall Law Review, Vol. 43, p. 111, 2009, Available at SSRN: https://ssrn.com/abstract=1687446

Steven R. Morrison (Contact Author)

University of North Dakota School of Law ( email )

215 Centennial Drive Stop 9003
Grand Forks, ND 58202
United States
617-749-7817 (Phone)

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