LOSERS || Liars Don't Always Lose

Liars Don't Always LoseAuthor(s): Jacob SteinSource: Litigation, Vol. 22, No. 3, LOSERS (Spring 1996), pp. 24-26, 71Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759850 .

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Liars Don't Always Lose

by Jacob Stein He told them the truth and they fell for it.

?A lawyer referring to his clients testimony We are, I know not how, double in ourselves, so that we believe what we disbelieve and cannot rid ourselves of what we condemn.

?Montaigne

Rule 102 of the Federal Rules of Evidence declares that a

key objective of the Rules is the ascertainment of truth. No law school would presume to offer a course in Truth. Truth is too unwieldy a subject for a law school class. Truth, per? fect truth, is a platonic ideal existing in the abstract. Truth is like the element sodium. It is everywhere, but never in its pure form. It is one of those elements that combines with whatever is near. When it hits the air, it is sodium oxide and, of course, there is salt, sodium chloride. But pure sodium?

We never see it. There is a story that in a courtroom in Kentucky when a wit?

ness was asked to swear to tell the truth, the whole truth, and

nothing but the truth, he replied, "Which one do you want?" The truth lawyers see is a sodium truth. It is always truth

combined with something else. There is the taint related to bias and prejudice. There is the taint of deliberate falsehood. And a dozen more. No, truth is not for law schools. But, I

suggest falsehood is a proper subject for law schools. Law schools should put in one compact course what every lawyer needs to know concerning how the law treats falsehood. It is

knowledge required as a protection for the lawyer and for the client. In addition, a lawyer should know something con?

cerning cases of historical significance where falsehood

played a part. Otherwise, the lawyer is ignorant of his or her

professional literature.

Lawyers and lay people see on any number of documents, just above the signature line, the legend that says a false statement subjects the signatory to prosecution under Title 18 U.S.C. 1001. What is Title 18 U.S.C. 1001? Is it a perjury statute? And if it is not, what is it? In the next few pages I

Mr. Stein is a Senior Editor of Litigation.

hope to supply some, only some, of the information con?

cerning falsehood that no lawyer should leave home without. Let us begin with Title 18 U.S.C. 1001. It is a federal crim?

inal statute. Here it is:

18-1001-Statements or entries generally

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and

willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact, or makes any false, fic? titious, or fraudulent statements or representations, or

makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent state?

ment or entry, shall be fined not more than $10,000 or

imprisoned not more than five years, or both.

Nine lines that produce prosecutions, convictions, resourceful defenses, and an occasional suicide. The statute, in an earlier version, was enacted in 1940. Yet, within the last two years, the Supreme Court of the United States found rea? sons to interpret the statute's meaning.

Although most criminal statutes are narrowly construed, the courts give 18 U.S.C. 1001 a broad interpretation. A false state? ment may be written. It may be oral. Sworn or unsworn. It may be voluntary or required by law. It can be signed or unsigned.

You can violate the statute even though the government suffers no loss because of reliance on the false statement. You can violate this law even though the false statement is not made directly to the federal government but to a private person or institution which implements federal programs.

The false statement must be a real lie. By that I mean it must be intentional and made with knowledge of its falsity. The statement must relate to a material issue. The test of

materiality is whether the statement tends to influence, or is

capable of influencing, the decision of the party to whom it is directed, even though that person ignores it.

The statement must be directed to a governmental depart? ment or agency. The Supreme Court has declared that mak?

ing a false statement to a judicial body is not a violation of 18 U.S.C. 1001 because it is not a matter within the jurisdic

Litigation Spring 1996 Volume 22 Number 3



tion of any department or agency. Circumstances often arise where a denial is made in

response to an FBI agent or other agency investigator, who asks if you committed a crime. Is that denial, that exculpa? tory "No" standing alone, the basis for a prosecution? Many courts hold that the exculpatory "No" cannot be the basis for a Title 18 U.S.C. 1001 violation. This is a controversial area.

Most prosecutions are brought under the general false statement statute despite the fact that there are many partic? ularized false statement statutes dealing with specialized areas, such as banking and claims against the government.

How does perjury differ from a false statement prosecu? tion? Perjury has two elements identical to the false state?

ment statute. It involves a deliberately false statement and concerns a material issue. But in order to be perjury it must involve a false statement made under oath or in any form allowed by law to be substituted for an oath. Perjury is false

swearing. The basic perjury statute provides in relevant part: Whoever . . . having taken an oath before a competent

tribunal... or person... that he will testify ...

truly, or

that any written . . . declaration ... by him ... is true,

willfully and contrary to such oath states or subscribes

any material matter which he does not believe to be true ... is guilty of perjury

....

The indictment, prosecution, and conviction of Alger Hiss for perjury altered the political landscape. In 1948, a com? mittee of Congress, known as the Committee on Un-Ameri? can Activities of the House of Representatives, conducted

investigations concerning subversive activities of govern? mental employees and others. That August, Whittaker Chambers appeared before the Committee. He said he had been a member of the Communist Party and that Alger Hiss had been an active member of the Party. Richard M. Nixon was a member of the investigating Committee. He uncov? ered evidence corroborating Chambers's accusation. Hiss was a prominent New Dealer, a very visible Democrat. The Hiss case was at the vortex of political controversy. It put Nixon on the front pages and then in the Presidency.

Hiss appeared before a grand jury in New York and denied Chambers's accusation that he, Hiss, turned over State

Department documents to Chambers. The grand jury indicted Hiss for perjury. In Hiss's first trial, the jury failed to agree. At that first trial, Hiss was represented by Lloyd Paul Stryker, a colorful New York trial lawyer and author of an interesting book on trial advocacy. In Hiss's second trial, the jury agreed and convicted. But Stryker did not represent

Hiss in that second trial. If you wish to read more concern?

ing the Hiss case and why Hiss changed lawyers, read Alan Weinstein's book entitied Perjury.

Perjury Requirements Affirming the conviction, U.S. v. Hiss, 185 F.2d 822

(1950), the Court of Appeals identified a unique evidentiary requirement particular to a perjury prosecution. As a matter of law, just one witness's uncorroborated testimony is not

enough to prove the crime of perjury. There must be two wit? nesses who testify that the accused lied under oath, or there must be one witness plus corroboration by other evidence to substantiate the testimony of the one witness. This unique evidentiary rule arose in England in the seventeenth century for reasons that no longer apply. Nevertheless, the rule is still enforced. It protects an honest witness from spiteful retalia

tion in the form of unfounded perjury prosecutions and, as the court stated in U.S. v. Chaplin, 25 F.3d 1373 (7th Cir. 1994), equally honest witnesses may have differing recollections.

President Nixon returned to the subject of perjury some

years later. As the Watergate controversy advanced the

prospect that President Nixon's associates would be called before the grand jury sitting in Washington, D.C., President Nixon gave John Dean and others legal advice. He told them if they were called before the grand jury they should respond to difficult questions by saying "I don't remember." It was

Nixon's advice that there could be no perjury prosecution based on such a response. He was wrong. See Sweig v. U.S., 441 F.2d 114 (1971).

Perjury before a grand jury is covered by a special statute with odd features. If one lies before a grand jury and then recants?tells the truth?before the grand jury or the prose? cutor is aware of the lie, the witness has a defense to a perjury prosecution. In some perjury prosecutions, a witness tells one version in the morning of his appearance before the grand jury and a different version in the afternoon. The grand jury perjury statute states that the government can make out a case based on the contradictory testimony itself. It need not prove which statement was true and which statement was false.

Perjury cases are interesting because they stand or fall on the nature of the questions asked and the precise answer

given. Bronston v. U.S., 409 U.S. 352 (1973), demonstrates the point. Samuel Bronston owned Samuel Bronston Pro? ductions, Inc., which produced motion pictures in various

European locations and opened bank accounts in a number of foreign countries.

Bronston Productions went into Chapter 11 bankruptcy proceedings. During the proceedings, Bronston was ques? tioned concerning the company's assets. He was indicted for

perjury based on answers, and in particular on the following colloquy:

Q: Do you have any bank accounts in Swiss banks, Mr. Bronston?

A. No, sir.




Q. Have you ever?

A: The company had an account there for about six months, in Zurich.

The first answer was true. When he testified he had no Swiss accounts. The second answer was tricky. Bronston at one time had a Swiss account. When Bronston answered the second question, he evaded. He answered for the company but not for himself. The government's prosecution for per? jury went forward on the theory that in order to mislead the

questioner, Bronston answered the second question with lit? eral truthfulness, but he addressed the company's assets and not his own. He implied that he had no personal Swiss bank account at the relevant time. He was convicted of perjury. The Supreme Court reversed. It held that Congress did not intend to extend the coverage of the perjury statute to answers untrue only by "negative implication." ". . . if the

questioner is aware of the unresponsiveness of the answer, with equal force it can be argued that the very unresponsive? ness of the answer should alert counsel to press on for the information he desires. It does not matter that the unrespon? sive answer is stated in the affirmative, thereby implying the

negative of the question actually posed; for again, by hypoth? esis, the examiner's awareness of unresponsiveness should lead him to press another question or reframe his initial ques? tion with greater precision. Precise questioning is imperative as a predicate for the offense of perjury."

There you have a glimpse of the law of false statement and

perjury. Let me now repeat what a great Chicago criminal

lawyer, Charlie Bellows, once was heard to say. "It is better to have lost a perjury case than never to have tried one at all."

Now let's take a look at Title 18 U.S.C. 1512, a statute enti? tled "Tampering With a Witness, Victim, or an Informant."

Part of the federal statutory scheme dealing with obstruction of justice, it says in substance that whoever knowingly "engages in misleading conduct toward another person, with intent to influence the testimony of any person in an official

proceeding, has committed an offense." It further states that: "In a prosecution for an offense under this section it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant's sole intention was to encourage, induce, or cause the other

person to testify truthfully." The penalty: a fine of not more than $250,000 or imprisonment for not more than ten years, or both. Each time I read this statute I feel faint. A vengeful prosecutor can threaten a lawyer with prosecution under this statute based on a witness interview and the witness's version of the interview. A lawyer who tells a witness what other wit? nesses have said arguably is engaging in misleading conduct with intent to influence testimony. I was comforted to read in U.S. v. Poppers, 635 F. Supp. 1034 (N.D. 111. 1986), that the trial judge in dealing with a post-trial motion for acquittal after a conviction for obstructing justice stated: "There is a fine line between coaching someone to lie and coaching someone to present a story in the best light." The post-trial

motion for acquittal on that count was granted. What if falsehood could be identified with scientific accu?

racy? At first thought, it sounds just like what is needed. It would introduce something akin to the use of DNA as the absolute determinant in certain cases. On the other hand, a scientific truth machine would give great power to the enforcer and great apprehension to the enforcee. Once a falsehood is detected on a preliminary matter, it justifies fur? ther questioning. One's entire life is then at the disposal of the truth machine. It would be inhuman in its consequences.

Was not the terror of the French Revolution a metaphor of the truth machine?

There is a truth machine long out of favor in the courts but now suddenly back. It is the polygraph. This is one of the law's ironies. The Frye test, Frye v. U.S., 293 Fed. 1013 (D.C. Cir.

1923), was used before the adoption of the Federal Rules of Evidence to exclude polygraphs. Frye held that so-called sci? entific evidence must be sufficientiy established to have gained general acceptance in the particular field in which it belongs. Polygraph evidence had not gained such acceptance. Poly? graphs were treated as per se inadmissible.

Frye was supplanted as a controlling test under the Fed? eral Rules in Daubert v. Merrill Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993). The Court held that scientific evi? dence is admissible if it assists the trier-of-fact under Rule 702 and meets the relevancy standards of Rules 401-403. The trial judge must determine the scientific validity of the evidence. The court may consider a wide range of factors

including whether the scientific theory or technique can be and has been tested, whether it has been subject to peer review, and questions concerning the potential rate of error of the technique. General scientific acceptance, as in Frye, may also bear on the inquiry. But it is not controlling. Daubert did not involve a polygraph. It involved expert tes?

timony concerning the effect of a Dow chemical drug, Ben dectin. In no time at all there were Daubert hearings con?

cerning polygraph results as evidence. Since Daubert, courts are being urged to declare that polygraph test results are no

(Please turn to page 71)




rassment in court, but more impor? tantly, creates a bad record or results in the admission of inappropriate evi? dence. Even more importantly, mak?

ing clear, concise objections in a

timely manner is viewed by increas?

ingly savvy juries as a necessary skill, the absence of which will be held

against the counsel and, by extension, the client.

Before the start of the evidentiary part of a trial, I tell the jury that the

lawyers will be objecting to evidence based on the rules of evidence. I

explain to the jury that the lawyers and I are able to communicate with each other about evidentiary matters with few words, and only if I need more information will we need to confer at

length about an evidentiary matter. In addition, I explain that, because most trial objections fall into relatively few

categories, the objections may sound like code words, or shorthand, and that the jury should disregard such

exchanges.

Thinking about objections as codes is helpful. Not only does a trial judge appreciate clear, concise objections based on the rules, but appellate courts also appreciate them. Moreover, the

sophisticated jurors of today are famil? iar with bench conferences and, I believe, resent them. Virtually every juror to whom I have ever talked thinks that "the good stuff happens while counsel are at the bench. Thus, jurors appreciate the lawyer who resists the

temptation to try the case at the bench. The difficult part, of course, is finding the right words and finding them

quickly. You may want to have a list of the most frequently made objections and their evidentiary basis prominently displayed in the front of your trial note? book for quick reference. That way, at least the code words will be at the tip of

your tongue until the lingo becomes more natural. If argument is inappro? priate, you would merely say, "Objec? tion, lack of foundation," and if you really want to impress the judge, add the rule number.

Mastering these techniques will not ensure a win every time, but should ensure that a case will not be lost

unnecessarily. In any event. . . "[t]he moment of victory is much too short to live for that and nothing else." Martina Navratilova, Czech-born U.S. tennis

player, Guardian (London, 21 June

1989). G

Perry

Mason

f Continued from page 34)

there as the monster in the closet. Justice

Burger brought the monster out of the closet years ago by going to the public with repeated announcements on lawyer incompetence. Coming from the Chief Justice of the highest court in the land gave the damnation far more credibility than it had ever received before.

Lawyers have a tarnished image when it comes to the subject of competency.

Lawyer incompetence is a difficult

subject. We are not talking about mis? takes. We all make mistakes. We are

talking about people who are not com?

petent to practice law or at least not

competent to practice in certain areas. Justice Burger led the attack and raised the concern. But the bar listened to the criticism and acted. Lawyers improved competency in substantial ways through mandatory continuing legal education and attorney training in law schools. Certainly, people assume that someone who can pass an examination as difficult as the bar exam must be

competent. But even if a law school

graduate has basic intelligence and skills, passing the bar exam does not

mean that a trial lawyer should handle

complex transactions or that a corporate lawyer should go into a courtroom and

try a case. It does not even mean that a criminal trial lawyer should try a civil case. We must know our limitations. Economic realities, probably more than

ego, guide people into danger zones

beyond their areas of expertise or

knowledge. But the perils of venturing afield are simply not worth the dangers.

Lawyers always must work hard to

help the public understand the good of the profession. We will always be sub?

ject to attack because we cannot simply play to popular opinion for guidance.

As former Chief Justice Pope of the Texas Supreme Court once said:

Lawyers advise and represent schools, banks, corporate busi? ness, small business, newspapers, radio and TV. stations, trusts, and

private charities.

Lawyers represent a growing num

ber of governmental agencies who serve a growing number of people with a growing number of conflicts.

Lawyers represent presidents, governors, cabinet members,

administrators, congressional and

legislative committees.

Lawyers represent families and

neighborhoods, the poor, the dis?

possessed, the disadvantaged, the

injured, the elderly.

Lawyers represent the despised, the unpopular, and the hated. They accept appointments to advise the worst of people. They absorb the

hostility of the community so that our guarantee of rights may be safe for the rest of us.

This is our commitment to a gov? ernment of law, the rule, reign, and supremacy of the law.

This is our unapologetic contribu? tion to the ideas of freedom.

In the end, we lawyers should not be

guided by whether we are popular or not. We must rely on our best princi? ples, be faithful to the law and the tra? ditions of our profession, and pay atten? tion to public concerns. Q

Liars Don't

Lose

(Continued from page 26)

longer per se inadmissible. See U.S. v.

Posado, 57 F.3d 428 (1995). Dauberfs flexible inquiry approach has opened the door to the admissibility of poly? graph results. Some may be admitted into evidence, some may not. It

depends. United States v. Padilla, U.S. Dist. Ct., S.D. Fla., 43 FRE Serv. 12

(1995). The polygraph is only as reliable as

the operator's interpretations. Does this mean the operator should be poly graphed? As the text writers say, we must await further developments in the law. As long as the search for truth con? tinues there will be the impediment of falsehood. One does not exist without the other. As one rises the other falls.

We might say it is a balancing test. Two for the seesaw. IS




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LOSERS || Liars Don't Always Lose