You can be convicted of perjury FOR TELLING THE TRUTH – Federal Court eliminates “literal truth” defense to perjury
Witnesses must answer not the question asked, but the imaginary “intended question”
Perjury, or lying by a witness under oath, is a felony punishable with incaracertion in prison. But, one of the hallmarks of perjury law has always been that if a witness tells the truth, there is no crime of perjury committed.
The U.S. Supreme Court strongly upheld this principle in Bronston v. United States, 409 U.S. 352 (1973). They ruled that even if a witness answers a question in a misleading way, as long as the answer is literally true, perjury has not been committed. This is known as the “literal truth” defense.
In the Bronston case, the witness was asked if he had ever had bank accounts in Switzerland, and he said that his company did. Because his answer concealed the fact that he also had bank accounts in Switzerland, the prosecutor prosecuted him for perjury. The U.S. Supreme Court, in a unanimous decision, ruled that since the witness had told no lies, he had not committed perjury.
The Court made it clear that it is the duty of the attorneys to ask their questions in a clear way, and probe for the answers, and that it is not the duty of the witnesses to do it for them. The Court stated:
It is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination…The cases support petitioner’s position that the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner – so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object of the questioner’s inquiry…
Precise questioning is imperative as a predicate for the offense of perjury.
SURPRISE! This rule of law no longer counts, at least not in federal courts in Michigan, Ohio, Kentucky and Tennessee, the states governed by the United States Court of Appeals for the Sixth Circuit. If you don’t believe it, ask Robert DeZarn. In the case of United States v. DeZarn, the witness had attended a Preakness party in 1990 and in 1991. Investigators questioned him under penalty of perjury. He was asked questions about a 1991 Preakness party, and truthfully answered those questions.
However, investigators decided later that they should have asked DeZarn about the 1990 Preakness party. So, did they blame themselves for asking the wrong questions? You must be joking. Were any of the investigators disciplined for incompetence? Of course not. Did the questioners go back and ask the right question this time? What are you smoking? We are talking about the government here. They did what any tyrant would do: indict DeZarn for perjury, on the ground that he should have known that the questioner “really meant” to ask about 1990, and it was DeZarn’s legal obligation to answer questions about 1990 even though the questions themselves were about 1991.
Naturally, DeZarn’s attorney did what any reasonable attorney would do:
On March 11, 1996, DeZarn moved to dismiss the indictment against him arguing that the indictment against him was insufficient to charge him with perjury because when he was questioned by the Inspector General’s investigators, he was asked about a Preakness Party at Billy Wellman’s house in 1991 as opposed to 1990, and he gave literally truthful answers with respect to Wellman’s 1991 dinner party.
This motion was denied by Judge Joseph M. Hood of the Eastern District of Kentucky federal court in Frankfort. DeZarn was actually convicted of perjury at trial, on January 23, 1997, he was sentenced to 15 months incarceration and fined $5,000.00.
On appeal, the Sixth Circuit Court of Appeals, located in Cincinnati, upheld the conviction in a ruling issued October 14, 1998. They ruled that a jury could decide that a witness “knew exactly what the questions meant,” and could justly find that a person who truthfully answered the question asked lied anyway, because he did not provide the answer that the questioner really was looking for. They explained their ruling this way:
This is not to say that the question to which the answer is made is not an important part of a perjury inquiry. Of course it is. A question that is truly ambiguous or which affirmatively misleads the testifier can never provide a basis for a finding of perjury, as it could never be said that one intended to answer such a question untruthfully. But, where it can be shown from the context of the question and the state of the testifier’s knowledge at the time that the testifier clearly knew what the question meant, the Government must be permitted to present, and the fact-finder to consider, those contextual facts.
Then, they made their blockbuster ruling:
We agree with the District Court’s determination that the literal truth defense is inapplicable in this case.
Mr. DeZarn was certainly faced with a dilemma, although he did not know it at the time. He thought that when he was sworn to tell the truth, it was enough to truthfully answer the questions asked. He did not know that he was supposed to predict that he should be answering some other question, that was not asked. But if he had gone ahead and given answers about the 1990 party when asked about the 1991 party, like the judges say he should have done, wouldn’t that be perjury?
Why should the witness have to guess that when he is asked one question, he should answer a different question? The answer lies in the arrogance of government officials. Better that someone should go to prison rather than have the incompetence or mistake of a government official exposed. It is now no longer enough for government officials to make you do what they tell you; now you must also do what they should have told you.
The United States Supreme Court in the Bronston case said “Precise questioning is imperative as a predicate for the offense of perjury.” Yet, in this case, questioning about 1991 was held by judges to really mean 1990, and a prison sentence was based on DeZarn’s failure to anticipate this bizarre ruling. Congratulations to Judges Rosen, Nelson and Ryan for their cleverness in finding a way to pretend to uphold the high principle announced by the Supreme Court, while trashing it in practice.
The next time you are called to court, you might be better off refusing to testify at all. Because if someone asks you a question about where you were Thursday night, and you foolishly answer about Thursday night, and you don’t volunteer an answer about Wednesday night, you may be on your way to prison.