When Is a False Statement Perjury?

In short, a false statement is perjury when it is made under oath or made under penalty of perjury. Two
separate statutes define the crime of perjury under federal law.

Both statutes, 18 U.S.C. §1621 and 18 U.S.C. §1623, criminalize essentially the same conduct. An
individual commits perjury when, under oath, he willfully (under §1621) or knowingly (under §1623)
makes a false statement as to a material matter:

To successfully prosecute an individual for perjury, the government must prove that the statements are
false. Thus, a statement that is literally true, even if misleading or nonresponsive, cannot be charged as
perjury. In a prosecution under §1621, the government is required to prove that the statement is false.
By contrast, §1623 permits conviction for perjury so long as the government can prove that the
defendant made two statements that are sufficiently inconsistent that one of them is necessarily false.
In other words, in a prosecution under §1623, the government does not need to prove that the
statement was false; it need only prove both of them cannot be true.

Section 1621 requires that the defendant acted willfully, while 1623 requires that the defendant acted
knowingly. In practice, the two elements require essentially the same thing: that the defendant be
aware he is under oath and required to tell the truth. Additionally, the defendant must, at the time he
made the statements, know that the statements are false. Thus, if an individual was confused about the
meaning of the oath, he cannot be convicted of perjury. Likewise, he has not committed perjury if he
did not believe his statements were false at the time he made them.

The false statements must also be material. A statement is material if it is capable of influencing the
decision of the decision-making body to which it is addressed. To meet this requirement, the statement
does not need to actually influence the decision; it is enough if the statement is merely capable of
having such influence.

An individual can be prosecuted for perjury under §1621 no matter where he made the statements, so
long as he has been placed under oath by an individual authorized to administer the oath under federal
law, or makes the statements subject to the penalty of perjury. For example, the perjury statute applies
to deposition testimony in a civil case, to testimony given during a court hearing or regulatory
proceeding, and to testimony given before Congress, among other proceedings.

The second perjury statute, 18 U.S.C. §1623, does not apply nearly as broadly. False statements can be
prosecuted as perjury under §1623 only if they are made in any proceeding before or ancillary to a
federal court or grand jury.

There are other differences, too. Under the “two witness” rule, a conviction for perjury under §1621
cannot be based on the uncorroborated testimony of one witness. A vestige of the common law crime
of perjury, the “two witness” rule requires the government to put forth independent corroborating
evidence of the defendant’s guilt. Because §1623 does not derive from the common law, the “two
witness” rule does not apply.

Additionally, while §1621 applies only to a person’s own statements, the reach of §1623 extends not
only to the defendant’s own statements, but to the defendant’s use of written materials that contain
false statements.

Allegations of perjury are often at the center of political and other scandals. As the federal government
investigates allegations of wrongdoing, politicians and celebrities have a natural tendency to downplay
their involvement when testifying before Congress or a grand jury. To prosecutors, that may look like
perjury, and a number of well-known criminal cases involved perjury charges.