Insight into a fundamental antinomic equation
Almost everybody knows that perjury under oath is a punishable offense. Many link unwillingness to commit perjury to an ingrained ethical objection to lying. Others may be pathological liars. Others may feel that the end justifies the means, that is, the tilted “Prize vs. Fault” equation used as the title of this article.
I aim at throwing some light at:
- WHAT is the legal interpretation of perjury according to US Law and
- HOW could anyone try to get away with a sworn statement without committing perjury?
From movies, everyone is familiar with the famous mantra one swears before giving a testimony in a courtroom.
I will jump over probable initials questions: which type of proceedings or setting is lying under oath a crime, that is, perjury, besides in a court of law? How similar (or different) are perjury laws in the various states?
As a starter, perjury requires a false statement, written or oral.
In essence, what constitutes perjury? The answer takes us to an important legal terrain; one that judges and lawyers are familiar with. When providing testimony, legal knowledge and experience provide considerable advantages to the jurist over the layman. As a starter, perjury requires a false statement, written or oral. This is to say, silence, per se, is not perjury, provided that there are no inconsistencies that can raise questions as to whether there was ”true silence”, that is, an evident intent to mislead throughout the entire testimony. Statements made, for instance, to lawyers, outside the actual proceedings, do not qualify as perjury.
Let’s dig further.
This, however, gets more complicated when we learn, for example, that a true statement that is actually misleading is not necessarily perjury.
Statements that are not “material” to the investigation do not fall under the definition of perjury. Yet, some material statements that may seem superfluous to some may still qualify as pertaining to the real of perjury. What determines the difference is often linked to the value, or importance, of the statement as it relates to the proceedings in question – be this in a court of law or in a Senate hearing. This, however, gets more complicated when we learn, for example, that a true statement that is actually misleading is not necessarily perjury. Or take, for instance, recantation during a proceeding. If it’s done during the same proceedings it may not be regarded as perjury, but for this to happen a number of conditions must be met, among them that the admitted or corrected false statement have not seriously affected the proceedings.
Hence, perjury under oath is not as straightforward as one would be inclined to think.
Let’s suppose a judge is answering questions during his testimony in a Senate hearing and the Prize vs. Prejudice equation gives reasonable grounds to the senators for a more careful evaluation and questioning in order to determine whether the testimony is entirely transparent or, in contrast, there is subterfuge and a strategy that seems as there might be a clear intention to avoid prejudice charges through the proceedings whilst avoiding the preferred yes-or-no answers to the questions.
What would such a strategy possibly look like? Following are some different, yet complementary, approaches:
- MEMORY CONSTRAINTS
Not remembering something is not a crime. Memory is considered elastic and subjective. If the events one is questioned about relate to issues that happened decades ago this would undoubtedly provide greater leeway. If, in addition, the lack of memory is related to something that is not necessarily illegal but that can, in addition, reasonably explain the lack of memory or concretion, it becomes then much more difficult to attach perjury to such forgetfulness.
- BEWILDERMENT, BEMUSEMENT or FEELING SORE
To avoid answering questions by using these types of strategies works only to the extent that the parties in charge of the questioning are willing to compromise or do not show the typical unyielding and persistent direct questioning that, for example, prosecutors use in order to get clear yes-or-no answers. Obviously, if the prosecutors have evident reasons or show during the actual hearing that they are favourable to approving the testimony, then this type of tactic is bound to find little resistance.
- QUESTION AVOIDANCE, QUESTION EVASION, or a QUESTION-AS-ANSWERS-TO-A-QUESTION STRAGEGIES.
These are strategies that added to the previous strategy, combined with a good performance in front of an already divided panel of judges, may help the deponent get away with accusations of dissimulation, misrepresentation or distraction games.
- SPLITTING THE PANEL OF JUDGES BY DIFFERENT APPROACHES/ANSWERS TO QUESTIONS DEPENDING ON WHO POSES THEM.
This carrot-and-stick policy is especially effective if it’s done in a setting with access to the media, publicly broadcasted and with a previously clearly divided public opinion.
- TRYING TO GET A FAVOURABLE OPINION BY TAKING THE ISSUES BEING DEALT WITH IN THE HEARING, EVEN BEFORE ITS COMPLETION, TO THE GENERAL PUBLIC IN ORDER TO GAIN MORE PUBLIC SUPPORT AND EVEN AN UNOFFICIAL BUT FORCEFUL VERDICT.
This is especially the case in hearings with great public audience and ample media coverage. If the matter has a political undertone public opinion can be the determining factor one way or another. Another factor to consider is that in court proceedings, in which a well-known person with a public profile is under trial, a final sentence can take months or even years, and there are possibilities to appeal a first sentence. This particular aspect, among others, is not similar to a Senate hearing related, for example, to the appointment of someone to public office.
Collecting a prize or gaining recognition will always be a factor that will weigh in someone’s mind if they are going to run the risk of committing perjury. Regardless of the outcome of the trial or hearing, one should have the following in mind:
- The legal system and proceedings, in its various settings, are not perfect. Various factors must coincide for it to function properly.
- There is a difference between a court proceeding – in which the system’s aim is to protect the innocent and only sentences when guilt is established beyond reasonable doubt and in a proportional manner to the crime and various validated attenuating circumstances if any – and a Senate hearing in which the deponent is not defending himself from an accusation but proving himself not only just competent, knowledgeable and disciplined to exercise the job but also without reproach or doubts about his integrity.
- If in a court of law a sentence is to be handed out when guilt is proven beyond a reasonable doubt, the same standard is applied inversely in nomination hearing, and I would add that this should especially be the case if the hearing is for a Supreme Court appointment. Expecting less than this can be considered a tacit approval of a tainted or even corrupt legal system and at its very core.
- An independent and impeccable judicial system is the foundation and the pinnacle of a well functioning, transparent and just society.