Perjury by Omission

31 Pages Posted: 22 Aug 2019 Last revised: 23 Oct 2019

See all articles by Ira P. Robbins

Ira P. Robbins

American University - Washington College of Law

Date Written: August 20, 2019

Abstract

“Do you swear to tell the truth, the whole truth, and nothing but the truth?” There are few legal phrases that the layperson can repeat verbatim; this is one of them. But how many people truly understand the nuances and ramifications of testifying under oath? Many assume that if they do not provide the “whole truth” under oath, they will face a perjury charge. However, perjury is a charge often threatened but rarely used. The offense requires that the defendant willfully and knowingly make a false statement, under oath, regarding a material fact.

The federal perjury statute does not contemplate a scenario in which a defendant (or declarant, deponent, witness, or interviewee) withholds truthful information in an attempt to mislead the questioner and alter the outcome of a judicial proceeding — in sum, not telling the “whole truth.” But, in Bronston v. United States, the Supreme Court considered just this situation, holding that the language of the federal perjury statute does not contemplate a defendant who intentionally omits material information. Instead, the Court broadly ruled that “literally truthful” answers are categorically forbidden from being the basis of perjury. The Court placed the burden on the questioner to elicit the desired answer from a witness when confronted with a literally truthful, yet unresponsive and misleading answer. Such an onus suggests that all questioners possess the abilities of a mind reader.

This Article demonstrates that the Bronston Court created unforeseen consequences. Currently, a sophisticated defendant can dodge a perjury charge by providing a literally true answer while omitting pertinent information. Sometimes, these answers communicate a lie, but as long as they are literally truthful under the Bronston Court’s broad interpretation, a defendant could never face a perjury charge. Congress can fill the holes of this decision by amending the federal perjury statutes to criminalize those who intentionally give incomplete or misleading responses regarding material information under oath.

Keywords: perjury, false statements, obstruction of justice, literal truth, questioner's acuity, ethics, model statute, juries, jury instructions, defendant, declarant, witness, deponent, white collar crime

JEL Classification: K00, K4, K10, K14, K30, K39, K40, K41, K42

Suggested Citation

Robbins, Ira P., Perjury by Omission (August 20, 2019). Washington University Law Review, Vol. 97, 2019; American University, WCL Research Paper No. 2019-30. Available at SSRN: https://ssrn.com/abstract=3440098 or http://dx.doi.org/10.2139/ssrn.3440098

Ira P. Robbins (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States
202-274-4235 (Phone)
202-274-4130 (Fax)

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