PERJURY (CONTRADICTORY STATEMENTS UNDER OATH) FRIDAY, MARCH 10, 1950 UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. The subcommittee met, pursuant to notice, at 10:30 a. m., in room 424, Senate Office Building, Hon. Garrett L. Withers presiding. Present: Senator Withers. Also present: George S. Green, committee staff member. At this point, we will insert in the record S. 933. (S. 933 is as follows:) [S. 933, 81st Cong., 1st sess.] A BILL To extend the law relating to perjury to the willful giving of contradictory statements under oath Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title 18, United States Code, section 1621 (Public Law 772, Eightieth Congress), be amended to read as follows: "Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, or willfully gives or makes contradictory testimony or statements in judicial proceedings in respect to any material matter, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both." Senator WITHERS. You may go ahead in narrative form and give your name and position. STATEMENTS OF GOLDEN N. DAGGER, AND ROSALIE M. MOYNAHAN, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D. C. Mr. DAGGER. My name is Golden N. Dagger. I am an attorney in the Department of Justice. Associated with me here this morning is Miss Rosalie M. Moynahan, who is also an attorney in the Department of Justice, and who has done some study and research work on the subject matter of Senate bill 933. For whatever value it may be to the committee, we have prepared a statement. Senator WITHERS. We will put that in the record at this point. 1 (The statement referred to follows:) STATEMENT OF Golden N. Dagger, AttoRNEY, DEPARTMENT OF JUSTICE Senate bill 933 would amend the Federal perjury statute, title 18, United Stat Code (Crimes and Criminal Procedure), section 1621, as enacted June 25, 19 (Public Law 772 (80th Cong., 2d sess.) ), effective as of September 1 of that yea The amendment proposed is to make the willful giving of contradictory statemen under oath in a judicial proceeding an alternative ground of prosecution f perjury. Section 1621 now provides: "Whoever, having taken an oath before a competent tribunal, officer, or perso in any case in which a law of the United States authorizes an oath to be adminis tered, that he will testify, declare, depose, or certify truly, or that any writte testimony, declaration, deposition, or certificate by him subscribed, is true, wil fully and contrary to such oath states or subscribes any material matter which h does not believe to be true, is guilty of perjury, and shall, except as otherwis expressly provided by law, be fined not more than $2,000 or imprisoned not mor than five years, or both." The amendment consists of the italicized interpolated addition of the phrase "or willfully gives or makes contradictory testimony or statements in judicial pro ceedings in respect to any material matter" before the penalty clause "is guilty of perjury", etc., so that section 1621, as amended, would read as follows: Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, or willfully gives or makes contradictory testimony or statements in judicial proceedings in respect to any material matter, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. Under present section 1621 a person may not be convicted of perjury for making contradictory statements under oath unless the indictment charges and the Government proves which of the statements is false. And the falsity of an allegedly perjurious statement must be established by two independent witnesses, or by one witness and corroborative circumstances (Weiler v. United States, 323 U. S. 606; Hammer v. United States, 271 U. S. 620, 626). The exigencies of this time-honored perjury evidence rule places a double burden on the prosecutor where contradictory statements are involved; he must show not only which of two contradictory statements is false but prove the falsity by the quantitative rule. The situation most frequently met is where a witness tells one story before a grand jury and at the trial of the indicted person repudiates his previous testimony. This constitutes an obstacle to justice, and because of the prevailing evidence rule convictions in such cases of perjury are exceedingly difficult to secure. The Court of Appeals for the Second Circuit, in Buckner v. United States (118 F. (2d) 468 (1941)), attempted to obviate the harshness of the evidentiary rule where contradictory statements were made. In that case the defendant had testified to one thing before a grand jury which indicted certain policemen for conspiracy, and at their trial repudiated her testimony. She was then indicted for perjury. At her trial she took the stand and admitted that her testimony before the grand jury was false. In that case the conviction was upheld on the theory that the admission of falsity made by the defendant at her trial was equivalent to the required corroborative evidence. Other circuits, however, have not been influenced by this decision, which rests upon its own facts and is not typical. Seemingly, it does not meet the test laid down by the Supreme Court in the Weiler case (1945) that the determination of the credibility of the corroborative testimony is a function which belongs exclusively to the jury. Nor are the cases cited in the Buckner opinion in support of the exercise of the discretionary power convincing on that point. More particularly, in respect of People v. Burden (9 Barb. (N. Y.) 467), other authorities which have passed upon the question have refused to follow that rule and have held that an admission against interest in the second statement will not take the case out of the rule that a conviction for perjury cannot rest merely upon contradictory statements. Amendment to the Federal perjury statute as proposed by S. 933 would assure more uniformity in decisions than reliance upon a trial court's discretionary power in applying the quantitative rule. NT OF JUSTICE 18, United States ed June 25, 1948 er 1 of that year. ctory statements prosecution for fficer, or person, to be adminis hat any written ed, is true, willmatter which he pt as otherwise soned not more of the phrase as then in- case out Examination of the State laws discloses that apparently New York is the only jurisdiction which provides in its penal code (39 McKinney's Consolidated Laws, secs. 1627 and 1627 (a)) for recognition of contradictory statements as creating presumptive evidence of perjury (sec. 1627) and authorizing pleading in the alternative in cases of second-degree perjury without requiring proof of which statement is untrue. While the Federal perjury statute contains no breakdown into degrees of the crime, nevertheless it would be proper for the Congress by adopting the proposed amendment to permit prosecution and punishment when contradictory testimony or statements under oath have been given. The fact that the defendant in the perjury case, who has made contradictory statements, will nevertheless be protected by the necessity of proof of their willfulness and materiality disposes of the reasons given by the Supreme Court in the Weiler case for preservance of the two-witness rule in the case of a single perjurious statement. The quantitative rule will still be enforced where prosecution is had for a single alleged perjurious statement, but where contradictory statements are involved proof of the materiality and willfulness should be sufficient. The proposed legislation is similar to bills introduced in successive Congresses since 1941. (See H. R. 4866 (77th Cong., 1st sess.), S. 495 and H. R. 2752 (79th Cong., 1st sess.), and S. 15 (80th Cong., 1st sess.).) The former bills, however, differ from S. 933 in that they contained a second section constituting a proposed amendment to the former procedural section of the criminal code dealing with perjury pleadings (title 18, U. S. C. (1940 ed.), sec. 558). This section of title 18 was omitted when that title was reenacted on June 25, 1948, because its subject matter was covered by rule 7 (c) of the Federal Rules of Criminal Procedure, in effect since March 21, 1946 (United States v. Bickford, 168 F. (2d) 26 (C. C. A. 9, 1948)). Since the introduction of S. 933, correspondence between the Department of Justice and the chairman of the Senate Judiciary Committee, Senator McCarran, has raised the question of the application of the Federal statute of limitations (18 U. S. C. 3282 (formerly 582)) to this legislation. Under the Federal statute of limitations, a single perjurious statement is now prosecutable within 3 years and under the existing perjury statute the expiration of that period would bar proof of the falsity of statement subsequently contradicted. S. 933 as drafted would authorize prosecution for perjury where contradictory statements are involved irrespective of any time lapse between the two. Recognizing that the crime of perjury in making contradictory statements is complete upon the making of the second statement, from which time the 3-year Federal statute of limitations would commence to run, it nevertheless appears desirable that a time limit between the two statements made should be specified in law. Accordingly, the Department suggests that the proposed amendment under S. 933 be further amended by the interpolation of the words "within the period of three years" before the phrase "gives or makes contradictory testimony or statements", etc. If this amendment to the amendment meets with your approval, section 1621 would then provide: "Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, or willfully within a period of three years gives or makes contradictory testimony or statements in judicial proceedings in respect to any material matter, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both." Senator WITHERS. Do you want to say anything in addition to filing the statement? Mr. DAGGER. Yes. We would like to make just a brief statement covering a couple of points which we think should be emphasized in connection with this bill. In substance, this bill would make a contradictory statement under oath proof of the falsity of the statement. That is in substance what the bill provides for. The bill would not strike down the present rule with respect to the proof of perjury-that is, the two-witness rule-or the rule that there must be at least one witness and corroborating cir cumstances. That rule would still prevail with the exception of th particular instance in which a witness would give contradictory state ments under oath. Senator WITHERS. These statements must both be germane to th issue? Mr. DAGGER. Both statements must be germane to the issue They must be material. Senator WITHERS. I notice that this bill said in a judicial proceeding Mr. DAGGER. Yes. Senator WITHERS. Suppose a person made an affidavit and before a proceeding was begun, but the affidavit is ancillary to the proceeding itself; would that be a part of the proceeding? In other words, after you answer that question, I would be glad for you to tell me as nearly as you can what the proceeding would be; that is, some of the elements of a proceeding. Mr. DAGGER. I have some difficulty, since Mr. Green discussed the matter with me here a little while ago, I do know this, if I may approach it in this way, that what the Department has in mind particularly are those cases in which a person testifies to one thing in the grand jury proceedings, and when he comes to trial of the case, he repudiates that statement and testifies just to the opposite. That is primarily what the Department had in mind. It did not think it advisable to include every proceeding because there are many administrative proceedings held before an administrative body in the Federal Government where people are put under oath, but it had not been the thought to include those here. That is why it was limited to judicial proceedings. I can see how a statement made in the circumstances which the chairman has just outlined might become a part of a judicial proceeding, and I am disposed to think that if it does, and then it is repudiated, it would come within the purview of this bill. That is my own personal view of that. I have not discussed that with my colleagues in the Department of Justice. Senator WITHERS. This is a matter I have tried to look up to see if I could get any history of the old common-law statute on the law on perjury, and I was not able to find any history of that at all. I thought perhaps maybe someone had written a text, some of the old writers, on perjury, and in that had outlined the history and growth of it. Miss MOYNAHAN. Wigmore has a chapter on that, Dean Wigmore. Senator WITHERS. Yes; he has a chapter. I do not remember what Blackstone it was, but I went through Blackstone and they had just a good paragraph and that was all. I know Blackstone on some of those old common-law rules elaborated with the history of them frequently, especially in real estate. Mr. DAGGER. The only history I have been able to find is what is in Wigmore. Senator WITHERS. I just wondered, the thing that aroused my curiosity was why the law ever was as it is. The natural conclusion, it seems in the beginning, would have been to have written it along the lines of this proposed bill, and I thought perhaps they had written it maybe or had followed that practice and found maybe it was not quite tight enough in favor of the defendant, and that they changed it to make it more difficult for the prosecutoin to establish guilt and |