Nothing But the Truth: What Happens When You Lie Under Oath
Perjury & False Statements
Juries and judges often base verdicts and other important decisions on sworn testimony and signed documents. If you’ve served on a jury, you’ve heard the court ask a witness taking the stand: “Do you swear or affirm that the statements you will make are the truth, the whole truth, and nothing but the truth?”
Statements given under oath and certain legal documents carry an expectation of truthfulness. But how can anyone know for sure that witnesses and other parties involved in a legal matter are telling the truth? It is not always possible to be certain. Yet, those who knowingly mislead a court may face serious criminal charges of perjury.
This article provides a general overview of the crime of perjury. It provides examples of and possible defenses to the offense. It also reviews federal and state perjury statutes.
What Is Perjury?
To “perjure oneself” is to make false statements under oath knowingly. Or it is to sign a legal document known to be false or to contain false statements. The false statement must also be related to a material fact. That is, it can affect the course or outcome of the proceeding.
The seriousness of perjury charges derives from its attack on the truth. The foundation of the legal system depends on trust and credibility. After all, one sworn statement has the power to tip the scales of justice and alter a person’s life.
Perjury qualifies as a crime against justice. Lying under oath compromises the work of an official proceeding. It challenges the authority of courts, grand juries, governing bodies, and public officials throughout government and the legal system. Other crimes against justice include criminal contempt of court, probation violation, and tampering with evidence.
Examples of Perjury
There are many ways a person could perjure themselves. In its simplest form, a person commits the crime either in statements made under oath or signed documents. Here are some examples:
- While completing a sworn affidavit during a bankruptcy court proceeding, John intentionally understates his monthly income by $2,000. John knows he has underreported the income. He signs the printed document and files it with the judge’s clerk.
- Mary is a suspect facing criminal charges. Jill is sworn in and testifies in the criminal case trial. She states that her friend, Mary, was having lunch at her house when the crime occurred. Credit card receipts and mobile phone records say otherwise. The alibi claim is central to Mary’s defense.
- Frank omits the $15,000 he won at a casino from his federal income tax return. It’s not a mistake. Frank intends to hide his winnings. He signs and sends the return to the IRS.
In all these examples, evidence of the crime of perjury comes to light when testimony or signed statements directly conflict with verifiable information. For example, authorities may investigate John’s conduct, which understated his monthly income in bankruptcy court. When his employer’s payroll records show a higher income, he may face perjury charges. The state will claim he provided false information on a sworn statement.
Since witnesses and others involved in legal proceedings may unintentionally provide false testimony in good faith, prosecutors must proceed with caution. They must be able to prove the intent to deceive or mislead. For example, a witness to a robbery testifies that the suspect had green eyes and a scar on his left cheek. Yet, other evidence points to a suspect with blue eyes and a scar on his right cheek. If the witness was not trying to protect the assailant by lying about key facts, she has not committed perjury. Her hazy memory of the incident should not become the basis of a criminal offense.
Federal and State Perjury Law and Penalties
Perjury cases can go forward in federal or state courts. As with all crimes, to obtain a conviction, the state must prove each and every element of the crime beyond a reasonable doubt.
Under federal law (18 USC § 1621), for example, the elements of the crime of perjury include:
- Having taken an oath before any competent tribunal (court), officer, or person;
- In any case where U.S. law authorizes an oath for truthful testimony, declaration, deposition, or certification;
- Willfully and contrary to such oath;
- States or subscribes to any material matter which they do not believe to be true
Federal law also outlaws the subornation of perjury, or the procuring of perjury by another person. The penalty for a federal perjury crime includes fines and imprisonment for up to five years. Judges have the discretion to use leniency (including probation instead of prison) when proper.
Most state laws have provisions that mirror federal law. The New York state penal code provides for various degrees of perjury crimes and criminal offenses for making apparently false statements. At the lower end, perjury in the third-degree is a class A misdemeanor offense. This crime involves making a false statement while giving testimony under oath or in a subscribed written instrument when under oath. The crime rises to a felony offense of perjury in the second degree when:
- The statement is material;
- Made in a subscribed written instrument; and
- Made to mislead a public official in his official functions
The offense can become a felony charge of perjury in the first degree when the false statement is material and occurs during testimony.
Under law, perjury occurs when, in any official proceeding, a person knowingly makes a false statement while under oath or affirmation. The falsity must involve material statements. The statute also includes situations where someone knowingly swears or affirms a false statement made previously. The offense is a third-degree felony. Punishment can range from nine to 36 months in state prison and/or a fine of up to $10,000.
Ohio’s statute states that a person cannot claim they did not believe the false statement to be material. The law also applies even when there is a showing of some irregularity in the oath taken. If a person made two contradictory statements, the state does not have to prove which one is false. It must convince the jury that one of the statements is false. Yet, the state cannot obtain a perjury conviction only upon one testifying witness’s statement contradicting the defendant’s testimony.
Perjury is rarely charged, and it is difficult for prosecutors to prove. The threat of perjury charges is often a tool lawyers use to ensure that witnesses provide candid testimony to the court.
A conviction can cost someone their livelihood. Anyone who works in a profession where truthfulness is valued—such as the legal profession, law enforcement, and certain public service jobs—might face dismissal. Others who work in regulated industries might lose their professional licenses and see their careers come to an end.
Legal Defenses Associated With Perjury Cases
As the defendant’s intent is key to proving perjury, the state looks for strong evidence to corroborate an intent to mislead or provide false information. Legal defenses to perjury charges likewise seek to raise questions on the issue of intent. They may include any of the following:
- A belief that the statement was true even though the defendant was mistaken
- Evidence that the defendant misunderstood the question put to him
- Claims that the false statement did not address a material fact
- The defendant made a prompt recantation of the false statement
A defendant’s non-responsive answers will likely not support a perjury conviction. In a case where a business owner’s response to a question about his personal accounts provided a truthful (although non-responsive) statement about his business accounts, the U.S. Supreme Court stated that the perjury law should not be “loosely construed.” In Bronston v. U.S. (1973), the Court warned that “precise questioning is imperative as a predicate for the offense of perjury.” The Court overturned a jury’s conviction for perjury where the defendant provided a literally truthful statement about his company while not directly answering the question about his own accounts. source
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These laws are permissible under the First Amendment if drafted in a way that meets the high bar set by the Supreme Court in a series of cases, starting with New York Times Co. v. Sullivan.
Learn what the Supreme Court View and Decision reagarding threats is True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment and their decision to create a TRUE THREAT TEST Watts v. United States – True Threat Test – 1st Amendment
also hating an individual is not illegal Supreme Court unanimously reaffirms: There is “NO HATE SPEECH’ exception to the First Amendment
and literature that has words that may bother you, the lines of threats are drawn here Counterman v. Colorado – Supreme Court sets higher bar for prosecuting threats under First Amendment
Perjury & making false statements are serious federal felonies carrying up to 5 years in prison.
Before testifying under oath in any proceeding, or filing papers with government authorities, it is essential to understand the crimes of perjury and making false statements and their potential consequences.
Perjury, under 18 US Code Section 1621, can occur in many settings. It is more than lying under oath while testifying in court. It also includes lying at congressional hearings or in depositions in civil lawsuits. Sworn statements made to governmental agencies like the Internal Revenue Service or in financial affidavits (such as loan applications and tax filings) are also covered.
Suborning perjury applies when a person induces or causes another to commit perjury. (18 US Code Section 1622)
A closely related crime is making false statements under 18 US Code Section 1001.
Title 18, United States Code, Section 1001 makes it a crime to:
1) knowingly and willfully;
2) make any materially false, fictitious, or fraudulent statement or representation;
3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.
The language of Section 1001 is very broad and applies in cases where a false statement does not meet all the requirements necessary for perjury. For example, perjury covers statements under oath. When a witness’ false statement was not under oath, 18 USC Section 1001 for making false statements to government agents may still apply.
In criminal cases, government investigators often talk to witnesses while out on the field. Lying to investigators during such a witness interview may not constitute perjury, but it can still be punishable as a crime for making false statements.
Like in any investigation, perjury and false statement cases present a range of potential outcomes. Sometimes, it may be possible to avoid formal criminal charges or prison altogether. Prison Professors, an Earning Freedom company, works alongside (not in place of) criminal defense attorneys to help clients proactively navigate through white-collar cases and prosecutions. It’s our experience that more well-informed and proactive clients obtain better outcomes. source
Can I Be Charged with False Statements for Lying in Civil Court?
Lying under oath in a civil court case can have serious consequences. While perjury charges are rare, making false statements in civil litigation can lead to various penalties. Understanding when lying crosses the line into illegal territory is crucial for any participant in a lawsuit. This article examines false statement laws and how they apply in civil court.
Perjury Laws
Perjury refers specifically to lying while under oath. The federal perjury statute, 18 U.S.C. § 1621, applies to statements made in federal court proceedings, including depositions. Most states have similar laws prohibiting perjury in state court cases.
To prove perjury, prosecutors must establish that the defendant:
- Knowingly made a false statement
- The statement was material to the case
- The defendant knew the statement was false when they made it
Merely being mistaken or forgetful is not enough to prove perjury. The government must show the defendant deliberately lied about something important to the case.
Perjury is a felony offense. If convicted in federal court, defendants face fines and up to 5 years in prison. State perjury laws carry similar penalties.
Lying in Civil Litigation
Civil suits do not lead to perjury charges as often as criminal cases. However, lying under oath in a civil case can still be illegal.
In civil litigation, depositions and trials rely heavily on testimony from parties and witnesses. Attorneys use this testimony to establish facts and make arguments. When a witness lies, it undermines the entire process.
While prosecutors rarely pursue perjury charges in civil cases, false statements can have other consequences. Opposing attorneys can seek sanctions through the court. Judges have discretion to penalize dishonest parties in various ways, such as:
- Dismissing claims or defenses
- Entering default judgment
- Paying the other side’s attorney fees
- Being held in contempt of court
Additionally, all witnesses in federal cases take an oath to tell the truth “under penalty of perjury.” 18 U.S.C. § 1621 applies to any false material statement made under oath, even in a civil case. So perjury charges are possible if a witness clearly lies about something significant.
Attorneys also have an ethical duty not to knowingly introduce false testimony. They can face professional discipline for suborning perjury.
What Constitutes a False Statement?
Merely being wrong does not necessarily make a statement false under the law. Civil litigation deals with complex factual issues. Witnesses can be honestly mistaken about events or details years after they occurred.
To face sanctions or criminal charges, the witness must knowingly lie about something material to the case. But what constitutes a “false statement” is not always clear cut.
Inaccurate or Misleading Testimony
Witnesses cannot get away with lies by using careful language. Even if their statements are technically true, intentionally misleading or deceptive testimony can be considered false.
For example, a defendant asked about his employment might truthfully state the name of his company. But omitting the fact that he owns the company could mislead the court about his income and assets. Even without directly lying, such intentional omissions could constitute false statements.
Opinions vs. Facts
Expressing opinions generally does not constitute lying under perjury laws. Witnesses may offer subjective viewpoints or interpretations of events. Exaggeration or embellishment is not necessarily illegal.
However, witnesses cannot disguise lies as opinions. Courts look at the context of the statement to determine if the witness deliberately falsified factual information.
Forgetfulness vs. Intentional Lies
Courts allow some leeway for honest mistakes. But witnesses cross a line when they intentionally lie about forgotten details.
If a witness cannot recall certain facts, they should say they do not remember rather than make up false details. Lying about forgotten facts suggests an intent to deceive the court.
Civil vs. Criminal Perjury
A common misconception holds that perjury requires proving intent to deceive “beyond a reasonable doubt,” as in criminal cases. However, civil litigation uses a “preponderance of the evidence” standard.
So in civil cases, judges and juries consider whether it is more likely than not that the witness lied intentionally. The evidence does not have to eliminate any possibility of innocence as it would in a criminal prosecution.
Defenses to Perjury
Defendants in perjury cases may argue they lacked the requisite intent to deceive the court. Some potential defenses include:
Lack of Materiality
The false statement must have been important to the case to constitute perjury. Immaterial lies generally do not have legal consequences.
Defendants may claim the false information did not affect any significant issues in the litigation. But courts often interpret materiality broadly. Any testimony influencing the fact-finder could be considered material.
Confusion or Mistake
As mentioned above, being mistaken is not illegal. Defendants may argue ambiguous questions or faulty memory caused inaccurate testimony.
However, claiming confusion or mistake is generally not a viable defense if there is evidence of intentional fabrication.
Mental State
A defendant’s mental state could negate the intent required for perjury. Evidence of mental illness or diminished capacity could undermine allegations of knowing deception.
However, the defendant must show they were unable to comprehend the nature of their false statements or the requirement to tell the truth.
Not Under Oath
Perjury applies only to statements made under oath or affirmation. That includes oral testimony at depositions and trials. It can also apply to affidavits and declarations signed under penalty of perjury.
Defendants may claim their allegedly false statements were not made under oath. But courts likely will not tolerate outright lies just because the witness had not been sworn in yet. source
Is Lying Protected by the First Amendment?
Is lying protected by the First Amendment? This question is at the center of our understanding of free speech and often a subject of our national conversations.
Disinformation can erode trust in democratic institutions and harm national security, public health and our sense of community. But does that mean the government can — or should — punish falsehoods?
Former President Trump was indicted on charges related to his claims about the 2020 election. He has raised the First Amendment free speech right to make these claims as protected political speech, which is at the heart of the First Amendment. Prosecutors are likely to respond that these claims are lies that are not protected by the First Amendment because his words themselves are criminal in nature, that they are evidence of fraud and conspiracy to commit fraud — going beyond words into actions.
Does intentionally lying (as opposed to sincerely believing in some provably false statements) disqualify someone’s speech from First Amendment protection? Or is there some room under the First Amendment for lying to allow people to discuss political issues?
Is lying protected by the First Amendment, or can the government punish lying?
So, is lying protected by the First Amendment? Short answer: Sometimes lies are not protected by the First Amendment. In other cases, they may be considered free speech.
When is lying protected by the First Amendment?
The First Amendment provides strong protection for speech, even in situations where a person is not telling the truth — intentionally or unintentionally.
People may often point to defamation as an example of when lying is not protected by the First Amendment. But the legal definition of defamation is narrow and hard to meet. It goes way beyond telling a lie about someone else.
Each state and the District of Columbia have laws defining defamation that allow anyone who feels they have been defamed to bring a civil lawsuit seeking compensation for damage to their reputation.
These laws are permissible under the First Amendment if drafted in a way that meets the high bar set by the Supreme Court in a series of cases, starting with New York Times Co. v. Sullivan.
In that case, the court held that even false statements about public officials or figures are protected, as long as the speaker doesn’t know that they are false or take reckless disregard for their truth or falsehood. In addition to this “actual malice” standard, to be defamation, the lie in question must:
- Harm the subject’s reputation.
- Be “material or substantial” (not minor).
- Be a provable assertion of fact (not an opinion).
- Identify the person bringing the lawsuit.
- Be published, i.e., heard by someone other than the speaker and the subject of the statement.
- Cause actual economic damage.
The Supreme Court has also said that lying about your military service is protected. In the 2012 case of United States v. Alvarez, the court said that a federal law that criminalized lying about receiving military medals violated the First Amendment. Then-Justice Anthony Kennedy explained that in addition to identifying a specific — not general — harm from the speech, the government must demonstrate that the restriction is necessary to prevent that harm, and this law did not meet those standards.
Lying about the government is specifically protected.
In the Freedom Forum’s 2021 “Where America Stands” survey, 72% of approximately 3,000 respondents agreed that “Political ads that misrepresent the truth should be outlawed.”
But in New York Times Co. v. Sullivan, the court held that deliberate lies about the government are fully protected. That’s because the government can counter falsehoods about it with its own speech. And it’s likely that other members of the public will come to the government’s defense, either for outright political reasons or simply to ensure the stability of the country, which also continues an open conversation on matters of public concern.
When is lying not protected by the First Amendment?
Despite its strong protection for speech, the First Amendment does not provide absolute protection for everything you say. There are exceptions for some clearly defined “low value” categories of speech, some of which involve lying.
RELATED: What speech is protected by the First Amendment?
One example is committing fraud or false advertising. These unprotected lies induce others to misspend their hard-earned money.
Lying under oath during an official government proceeding, or perjury, is also not protected. These lies come after you have sworn to tell the truth in the sanctity of a courtroom or in filing a false report to police, like the hoaxes of actor Jussie Smollett and Carlee Russell, an Alabama woman who staged her own kidnapping. In these cases, decision-makers rely on your word to spend resources on investigations, determine guilt or innocence, make judgments or pass laws.
Plagiarism is effectively stealing someone’s creative (and perhaps commercial) expression and falsely claiming it as your own. It is not protected by the First Amendment.
Why is lying protected by the First Amendment in some cases?
It can be complex, but lying is not automatically excluded from First Amendment protection.
Shouting “Fire!” in a crowded theater is always trotted out as an example of why the First Amendment isn’t absolute. But the people who cite this are either lying or wrong when they use it. The actual quote comes from Justice Oliver Wendell Holmes who wrote, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”
There is a difference between protecting someone who shouts “Fire!” to avoid danger when there is a fire and punishing someone who falsely shouts that word to intentionally put people in danger when none exists. In the second example, the government restricts the lie to prevent injury. This is to ensure we avoid punishing any speech that may have value.
Yes, lies can have value. It is often difficult to decide truth versus falsity, especially in the moment. Theories that are later disproven can be — and often are — labeled as “lies.” But without the ability to challenge otherwise accepted viewpoints, our understanding of the world around us — and of ourselves — might never change. We have a right to learn and to get things wrong in the process.
Most important, if lies were always illegal, we would never be able to hold our government accountable — one of the key reasons the First Amendment is in the Bill of Rights. We force the government to tread lightly around protected speech so we can work things out for ourselves. The First Amendment envisions public discussion without government intervention unless and until a statement might cause direct harm to specific people that cannot be countered quickly through public debate.
The First Amendment demands patience before government intervention, “putting the brakes” on government determining the outcome of truth versus falsity. This is, as Justice William Brennan explained in New York Times Co. v. Sullivan, to provide the “breathing space” necessary for free speech to survive.
Simply put: The more people who are affected by a false statement, the more incentive and ability there is to counter it. When it’s left to the people to decide, the space between government participating in that debate and government declaring a winner of that debate remains as large as possible.
