News & Events

By Andrew R. Chivinski

Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God? Of course you do. After all, even if you do veer off the path of accuracy for just a short while, who will ever know? And if any falsehood is suspected, how will anyone ever prove it? Even if it could be proven, who would really put the time, effort and money into seeing you ever face the consequences? Especially since you are just a mere witness, testifying in a deposition or courtroom in someone else’s case. Perjury? When was the last time anyone ever got into any real trouble for that?

If these are the thoughts that go through an individual’s mind when taking that solemn oath, we lawyers might be surprised to learn that, for the most part, they would be right. And as attorneys, whose clients’ depend on the credibility of evidence we obtain through depositions and verified discovery, this is clearly a concern.

While there is not much in the way of current statistical research on perjury, the data that does exist is fairly underwhelming.

For example, of the 60,255 defendants charged in 1996 US District Court cases, only 92 (or .15%) faced perjury as their most serious offense. Bureau of Justice Statistics, US Dept. of Justice, Sourcebook of Criminal Justice Statistics -1996 450-51 tbl.5.29 (Kathleen Maguire & Ann L. Pastore eds,. 1997). More recent data has been less than impressive.

In 2002, only 257 of all 71,798 US District Court convictions were for “perjury, contempt, intimidation” Bureau of Justice Statistics, US Dept. of Justice, Sourcebook of Criminal Justice Statistics, tbl.5.17.2002. In 2003, only 251 of the 75,805 US District Court convictions included perjury-related offenses. Id., tbl. 5.17.2003. And in 2004, only 246 of the 74,782 convictions in the US District Courts related to perjury. Id., tbl.5.17.2004. Keep in mind these statistics do not differentiate between perjury and other related offenses such as “contempt”; indicating the actual number of perjury-only convictions are even less. Indeed, perjury convictions are so rare some states include perjury in the category of “miscellaneous crimes” for statistical purposes. The Journal of Criminal Law & Criminology, 1974, Vol. 65, No. 3, "Perjury: The Forgotten Offense", ftn. 12, Northwestern University School of Law.

In the civil arena, documented instances of perjury are even less common. The federal government does not even provide statistics tracking prosecutions for perjury in civil cases. However, prosecutors and defense attorneys across the country have remarked that perjury charges based on testimony in a civil suit are rare. David E. Rovella, "Will He Escape this Time? Perjury Charge a Stretch, Say Nation’s DAs" Nat’l L.J., Feb. 9, 1998, at A1; Joel Cohen, "Perjury and Fraud in Civil Proceedings", N.Y.L.J, Jan,. 25, 1994, at 1. Conservative political pundit Arianna Huffington, in response to the Clinton-Lewinsky scandal, bemoaned “[P]erjury has become epidemic” and is “the least prosecuted crime on the country” after tax evasion. Arianna Huffington, "Crusades: Citizens Against Perjury Proliferation" (10/8/98). Many lawyers agree, and literature is awash with articles describing perjury in civil proceedings as “epidemic” and even “customary”. Stanley S. Arkin, "Criminal Implications of Perjury in Civil Cases", NYLJ, Apr. 9, 1998, at 3, see also Cohen, supra note 91.

As a practical matter, civil attorneys should not really need statistical data to convince them of perjury in civil proceedings. Our experiences likely speak for themselves, and there are no doubt few among us who have not come across their fair share of false testimony. After all, much of what we do in the litigation arena is related to impeaching the credibility and veracity of adverse witnesses with prior inconsistent statements or contradictory testimony. We are by nature distrusting, and rightfully so.

With few real remedies, and faced with a burdensome “materiality” element in criminal prosecutions, it would seem perjury is a problem we must simply accept. Absent some high-profile, external event which places the dangers of perjury in the public spotlight, members of the public will continue to regard their oaths as nothing more than a mere formality, a rule without consequence.

Enter Major League Baseball...

Barry Bonds: holder of the most sacred record in all of professional sports, the all-time home run record. Roger Clemens: a larger-than-life baseball icon and winner of 6 Cy-Young awards. Rafael Palmero: winner of 3 Golden Glove Awards, the 1999 Major League Baseball Player of the Year, and television-commercial endorser of the popular pharmaceutical drug Viagra. What do these 3 sports superstars all have in common? They have all faced or are facing criminal charges for lying while under oath about their use of steroids; essentially, they are accused of perjury.

On November 15, 2007, Barry Bonds was formally indicted by a federal Grand Jury in the Northern District of California on charges of perjury and obstruction of justice. The indictment stemmed from sworn testimony Bonds provided to a federal grand jury in 2003 regarding his use of performance-enhancing substances. If convicted, Bonds faces up to 5 years in prison for each of the 4 perjury counts against him.

On February 28, 2008, the Federal Bureau of Investigation confirmed a formal investigation into whether Roger Clemens perjured himself by providing false testimony before a Congressional hearing as to his involvement with performance-enhancing drugs. The investigation was requested by the very congressional committee before whom Clemens testified under oath, providing some insight into the committee’s impression of Clemens’ honesty. The FBI’s investigation is the first step towards an ultimate indictment, which appears likely if not inevitable.

In March of 2005, Rafael Palmeiro testified emphatically under oath before a congressional committee he had never used steroids or performance-enhancing drugs. Later that same year, in August of 2005, Palmeiro tested positive for steroids. A formal investigation found insufficient evidence to recommend a formal indictment, but noted vast inconsistencies and contradiction within Palmeiro’s statements. Palmeiro was suspended by Major League Baseball and, despite a comeback attempt, is expected to never play the game again. His once famed career and reputation now destroyed.

The consequences of perjury are not limited to baseball alone. Marion Jones, a world-renowned US track star and winner of 5 Olympic medals, 3 of them gold, pled guilty in US District Court to charges she lied about her use of steroids. She was sentenced to 6 months in federal prison and has been stripped of her medals.

Aside from steroids, what has really destroyed these athletes’ celebrated careers is perjury. This forgotten crime, so rarely prosecuted or even pursued, served as the tool to bring down some of the sports world’s biggest names in arguably the biggest scandal in sports history. Simply put, the steroids scandal has been a nightmare for the sports world, and issues of mistrust and shame will linger for years to come.

However, if there is a bright side to this situation, it is to be found in its potentially positive effect on the practice of law. Thanks to an ever-growing climate of watchdog news-media, the steroids scandal has enjoyed unprecedented publicity. If you operate from the premise more truthful testimony will result in a more credible justice system, then as lawyers we have a vested interest in the publicity of the steroids scandal.

The public, the very people who are generally the ones providing sworn testimony as either witnesses or parties, have watched intently as these sports heroes have been destroyed by allegations of perjury. There is non-stop, almost daily coverage on television news stations of the ongoing Roger Clemens perjury investigation, the status of the Barry Bonds perjury indictment, and the start of Marion Jones prison sentence. Additionally, the internet is swarming with articles, blogs and even full web-sites dedicated to these perjury allegations. It has almost become an obsession.

Whereas before it might take a Lexis password or membership in an attorney email database to obtain information on the dangers of perjury, this information is now basically force-fed to the non-attorney citizen on a daily basis. The publicity of the steroids scandal has done a very important job: It has gotten out the message that if you lie under oath, there are consequences. If it can happen to Barry Bonds and Roger Clemens, it can happen to you and me.

But what is the application? Admittedly, the foregoing is all theory. The steroid scandal is still too recent to assess whether it has had an effect on the truthfulness of testimony in courtrooms across the country. Indeed, it is questionable as to whether that effect can ever really be measured. The hope is that the next witness who takes an oath remembers what happened to Barry Bonds and Marion Jones. Whether it be in a civil deposition, administrative hearing, criminal trial or workers compensation proceeding, the steroid scandal has brought the issue of perjury to the forefront of everyone’s minds; not just those of lawyers and judges.

While this effect is not certain, attorneys can do more to ensure the lessons of the steroids scandal do not fall upon deaf ears. For example, a routine deposition admonition is to advise the witness their sworn testimony is subject to punishment for perjury if untrue. This can be expanded upon, using the example of baseball’s steroids scandal to drive the point home. By correlating this admonition to a real-world example, it becomes more effective, and leaves more of an impression on the witness.

Additionally, attorneys can be vigilant about perjury abuses in the civil arena. Many states’ discovery statutes include provisions for sanctions against a party, or his attorney, for providing false information in a civil case. See, e.g., Ariz. R Civ. P. 37(c); CA Code Civ. Proc. § 128.7; Illl. Sup. Ct., R. 137; Ill. Sup. Ct., R. 219. Likewise, the various state bars publish rules regulating the conduct of its attorneys in this regard, in addition to proscribing punishment for violators. See, e.g. CA Rules of Professional Conduct, Rule 5-200; NY Code of Professional Responsibility, DR 1-102 [1200.3]. Although apparently not implemented currently, local governing agencies and regulatory bodies may be one day be instrumental in curbing perjury through “task force” policing and prosecution. Even in the Workers Compensation field, a area widely considered fraught with false statements and claims, there is precedence for criminal prosecution in addition to any punishment dealt by the workers compensation board for false claims.

The point is best-stated by the Court of Appeals for the 11th Circuit, “[W]e categorically reject any suggestion, implicit or otherwise, that perjury is somehow less serious when made in a civil proceeding. Perjury, regardless of the setting, is a serious offense that results in incalculable harm to the functioning and integrity of the legal system as well as to private individuals.” United States v. Holland (11th Cir., 1994) 22 F.3d 1040, 1047-48; see also, Belak v. Am. Eagle, Inc., 2001 US Dist. LEXIS 2742. 

The words of the 11th Circuit certainly preach to the choir in the legal profession. Perhaps one day we can all thank Barry Bonds, Roger Clemens and Marion Jones for dispersing that message more effectively to the public.

Andrew R. Chivinski is an associate at Neil Dymott and concentrates his practice on professional liability, personal injury and general civil litigation. Mr. Chivinski may be reached at (619) 238-1712 or achivinski@neildymott.com.

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