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Are False Statements Undermining America?

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LIE DETECTION

James B. Stewart's recent book, Tangled Webs, How False Statements are Undermining America: From Martha Stewart to Bernie Madoff, focuses on the disastrous consequences of lying and the importance of truth in the judicial process.

Stewart suggests that perjury is increasing and is a difficult crime to prosecute because it requires proof of knowledge, intent and materiality. To illustrate Stewart's point, in Tennessee as in most states, the aggravated perjury statute requires proof of "intent to deceive," "false statement," "an official proceeding," and that "the false statement is material." Stewart sees an epidemic of lying in business, politics, and our culture generally.

Since perjury conviction statistics are not generally available, a very crude estimate may be obtained by searching the LexisNexis legal database for "perjury conviction." The results are appellate court decisions in which the phrase, "perjury conviction" appears, regardless of the context. A recent search of U.S. federal and state cases yielded 51 decisions in the last year, 109 in the last two years, 284 in the last five years, and 2048 for all available dates, the earliest decision being an 1839 Supreme Court of Mississippi decision. These are indeed low numbers.

What is not generally appreciated is that lying to a federal official, even if not under oath or in some official proceeding, is a criminal offense under Title 18 of the United States Code Section 1001. While containing some limitations, the statute broadly prohibits making "any materially false, fictitious, or fraudulent statement or representation" or making or using "any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry." The basic penalty upon conviction is a fine and up to five years imprisonment, although in specified circumstances this may become up to eight years imprisonment.

Prosecution of these cases increased after the 1998 U.S. Supreme Court decision, Brogan v. United States. A majority decision determined that Brogan's answering "no" when asked by federal agents from the Department of Labor and IRS, in a home visit, whether he had accepted unlawful cash payments, violated the statute. Prior to this decision it was widely believed that an "exculpatory no," a denial of guilt, did not violate the statute.

While one has a legal right to remain silent unless granted immunity, one does not have the right to lie. Stewart's book reminds us that our social, political, and business systems rely upon trust and truthfulness. These societal expectations are necessary to interact beyond a closed network of trusted allies. If these values are declining, our society is changing for the worse.