Every single year, millions of Americans sign
a document that could theoretically send them
to federal prison for up to three years. Yeah,
it's pretty wild when you actually think about
it. Right. And you have almost certainly signed
one yourself. I mean, it's just your standard
U .S. income tax return. Oh, yeah. Everyone does
it. Exactly. Under Title 26, Section 6065 of
the U .S. Code, when you sign that form, you
are legally declaring that everything in it is
true. under penalty of perjury. Which is a heavy
phrase. It is. You don't need a judge in a black
robe. You don't need a wood paneled courtroom.
And you definitely don't need to put your hand
on a Bible. No, you really don't. You are bound
by these rules just by like participating in
modern society. So welcome to today's Deep Dive.
Glad to be here. Our mission today is to really
unpack a concept you've all seen in legal thrillers,
but rarely understand in practice, which is perjury.
Yeah, the Hollywood version is very different
from reality. Oh, totally. And we are pulling
all our insights today from a single, incredibly
comprehensive source. It's a massive, heavily
detailed Wikipedia article that covers the legal
frameworks, the completely bizarre history, and
the high profile global cases surrounding this
crime. And what becomes immediately clear when
you read through this material is that the courtroom
oath isn't like a magical truth serum. Right.
We tend to view perjury as this simple binary
switch, like you either tell the truth or you're
a liar. Good guy, bad guy. Exactly. But the actual
legal machinery is wildly complex. Perjury is
actually much, much harder to commit than just
telling a lie. OK, let's unpack this. Because
if I tell a flat out lie on a government forum
or while sitting in a witness box, what exactly
separates that from federal crime? Well, to understand
that, you really have to look at the anatomy
of the crime itself. Like most common law crimes,
perjury requires two separate simultaneous elements.
You need the actus reus, which the physical act
of making the false statement. The actual talking
or writing part. Right, exactly. And you need
the mens rea, which is the specific intention
behind it. So if I just get my facts wrong, even
if it causes a huge problem, that isn't enough
to trigger a charge. Not at all. Honest mistakes,
inaccurate recollections, or just drawing a terrible
conclusion from a set of facts, none of those
qualify. Really? Yeah. I mean, if you honestly
believe what you are saying is true, or if you
just have a genuinely terrible memory, you lack
that mens rea. You lack the intent to deceive.
OK, that makes sense. But there's a third element
that is just as crucial, and it's called materiality.
Right, the concept that the lie actually has
to matter to the underlying case. Yes, exactly.
I can put this into an everyday analogy for you
listening. If I'm under oath in a courtroom and
I'm asked about my favorite color and I say blue
and it's actually red, that is not perjury. No,
because nobody cares. Exactly. Nobody cares.
It doesn't change the outcome of the trial at
all. But if I lie about my age to qualify for
early retirement benefits, that is perjury. Because
that specific lie directly influences a legal
and financial result. Right. It's material. Exactly.
The lie has to be material to the proceeding.
But what's fascinating here is how courts have
historically struggled to prove all of these
elements at the same time. I can imagine. I mean,
think about the burden of proof. How do you prove
what is inside someone's head? Yeah, that seems
impossible. Right. How do you prove they didn't
just forget, but that they willfully chose to
deceive the court? In the United States, the
baseline for this was actually set by a seminal
Supreme Court case called United States v. Dunagan.
Now, I have to push back on this a bit because
it really does sound impossible. Unless you have
like an email where the person says, I'm going
to lie on the stand today. How on earth does
a prosecutor prove a mistake wasn't just a foggy
memory? It is incredibly difficult. And that's
why perjury charges are relatively rare compared
to how often people, you know, probably lie in
court. Which is probably a lot. Oh, absolutely.
But the Donegan precedent established that the
government has to prove the accused gave false
testimony concerning a material matter with the
willful intent to provide false testimony. Willful
intent? Yes. It cannot merely be a result of
confusion. The liberation is totally required.
However, the courts aren't completely helpless
here either. Right. They've also established
that you cannot just close your eyes to the truth
to save yourself. Meaning, willful ignorance
isn't a get out of jail free card. Precisely.
If a prosecutor can prove that you purposefully
avoided looking at your bank statements specifically
so you could sit on the stand and say, I have
no idea how much money is in that account. Ah,
I see. Yeah, the courts can interpret that deliberate
avoidance as the intent to deceive. You engineered
your own ignorance. Wow. Okay. That makes sense.
But if proving intent is this nuanced and difficult
today, you know, with all our modern legal precedents
and our deep understanding of human psychology,
how did courts handle this centuries ago? It
was completely different. Like how did a medieval
judge figure out if a witness had mens rea? That
takes us into the truly bizarre history of English
common law because, frankly, for a very long
time the legal system didn't even try to figure
it out. Really? Yeah, they outsourced the problem
entirely. The history detailed in our source
material completely blew my mind on this. It's
wild. Going back to Anglo -Saxon legal procedure,
early on the only people who could even technically
commit perjury were jurors and compurgators.
Which were basically character witnesses who
just swore to a defendant's general innocence.
Right. And when actual factual witnesses, like
people who actually saw the crime happen, when
they first started appearing in court, they were
treated with absolute immunity. Yes, they literally
could not be charged with perjury. You're telling
me that for centuries, a witness could just get
on the stand until a blatant, malicious lie that
could result in an innocent person being locked
away or even executed, and the legal system essentially
shrugged and said, well, they took an oath, so
it must be true. That sounds like a catastrophic
structural flaw in the justice system. Well,
to our modern ears, yeah, it sounds insane, but
if we connect this to the bigger picture of how
society functioned back then, it makes a strange
kind of sense. Okay, how so? The roles in the
courtroom just hadn't fully evolved yet. The
prevailing legal maxim at the time was literally
that every witness's evidence on oath was true.
Because the oath itself wasn't just a legal formality,
it was like a divine guarantee. Exactly! You
have to remember the intense religious context
of the era. Swearing an oath was viewed as invoking
a literal curse upon yourself. The belief was
that if you lied after swearing to God, you were
damning your own immortal soul to hell. So the
stakes were eternal. Completely. The courts believed
that the fear of eternal damnation was a far
greater deterrent than any earthly prison sentence.
I mean, I guess that tracks for the time period.
Right. Therefore, if someone was willing to take
the oath, the court assumed they were telling
the truth because no rational person would risk
hellfire over, you know, a property dispute.
That is fascinating. It wasn't until the 15th
century that the infamous Star Chamber in England
finally started punishing witnesses for lying.
So society essentially realized that people were,
in fact, perfectly willing to risk eternal damnation
to win a lawsuit. Pretty much, yeah. So in 1540,
the English parliament finally cracked down on
subordination of perjury, which is inducing someone
else to lie. And then in 1562, they started imposing
monetary penalties for perjury itself. But the
punishments evolved to be far worse than just
fines. Under common law, the penalties ranged
from banishment to just absolute barbarism. Visceral
is the word for it. The text details punishments
like physically severing the tongue of the perjurer.
Just gruesome. So gruesome. And there's one specific
case from 1732 that really paints a picture of
how angry ordinary people were about this crime.
Oh, the John Waller case? Yes. There was this
British highwayman named John Waller. He was
caught lying and sentenced to the pillory, locked
in the wooden stocks in the public square. Right.
But the crowd was so deeply enraged by his lies
that they essentially pelted him to death. They
did. He died while being punished for perjury,
literally killed by an angry mob. Which really
highlights something fundamental about human
nature, I think. Lying under oath isn't just
an offense against another person. What is it
then? It's a corruption of the communal system
we all rely on to maintain order. If the justice
system is a suspension bridge, perjury isn't
just a dented guardrail. Right. It's someone
actively unscrewing the main bolts holding the
cables together. If the truth doesn't matter,
the entire bridge collapses. That is a great
analogy. And that deep philosophical view of
the crime completely dictates how wildly different
countries penalize it today. Yeah. If a mob killing
a guy in a pillory shows how seriously the public
took it in 1732, the modern global stakes show
that the legal system takes it just as seriously
today. Oh, absolutely. The baselines are strict
enough. In the U .S., under federal law, it's
a felony with up to five years in prison. In
the UK, it's up to seven years. In Canada, it's
an indictable offense with a maximum of 14 years.
But those are just the starting points. Look
at Australia and New Zealand. In several jurisdictions
there, the penalty is double going up to 14 years
or even life imprisonment if the perjury was
committed specifically to wrongly convict someone
of a serious offense. And then you have California.
Yeah, California is a whole other level. Under
the California Penal Code, if your perjury causes
the wrongful execution of another person, your
lie can be construed as murder or attempted murder.
It becomes a capital offense, meaning you could
face the death penalty simply for lying on the
stand. It's literally a matter of life or death.
The lie is treated as the murder weapon. Exactly.
But contrast that extreme, highly punitive approach
with a system like India's, where the underlying
philosophy takes a totally different almost bureaucratic
turn. Okay, how so? Under the Indian penal code,
perjury is fundamentally described as Muted.
Muted. That's an interesting word for it. This
is due to section 195 of their Code of Criminal
Procedure, right? Yes. And to translate the dense
legal phrasing here for you listening, the rule
states that a court cannot take cognizance of
a perjury offense unless the complaint is made
in writing by the court itself. And taking cognizance
basically means the legal system formally acknowledging
the crime. So let me get this straight. If I'm
in a bitter civil dispute with my neighbor in
India, and I have absolute proof my neighbor
just lied on the stand, I can't just call the
police and file a perjury report against them.
Correct. You, as the private citizen, cannot
initiate that complaint. Wow. Section 195 restricts
police or prosecutors from just acting on your
accusation. The judge who presided over the case,
or a superior court, has to be the one to formally
file the complaint in writing. But why create
that massive bottle deck? That seems counterintuitive.
Well, because it answers a vital philosophical
question. Who is the actual victim of perjury?
Oh, I see. In the Indian legal framework, perjury
is not viewed as a personal injury against the
opposing party. It is fundamentally an administrative
crime against the justice system itself. It is
an attempt to usurp the power of the courts.
Exactly. Because the court was the entity that
was lied to, the court itself must be the entity
to recognize the offense and seek prosecution.
That actually makes a lot of sense. Yeah, it
stops people from using perjury accusations as
a weapon to harass their rivals after a lawsuit
ends. That is a brilliant way to prevent a never
- cycle. of lawsuits. It really is. But, you
know, knowing that these penalties exist globally,
from years in prison to life behind bars to potentially
execution in California, it completely makes
sense that smart people and their very expensive
defense attorneys have spent decades finding
ways to navigate around the strict legal definition
of this crime. Oh, absolutely. Which brings us
to the loopholes. The loopholes. Because the
law requires both absolute falsehood and clear
intent, the defenses against perjury can be incredibly
precise, almost like linguistic gymnastics. The
most famous example of this in the U .S. is the
Braunston precedent, right? Yes, exactly. The
Supreme Court ruled that statements that are
literally true or answers to truly ambiguous
questions cannot be considered perjury, even
if they are deeply, intentionally misleading.
It's all about literal truth. Here's where it
gets really interesting. Imagine you were pulled
over for speeding on a Tuesday. The officer asks,
were you speeding today? And you respond, I always
drive the speed limit on Mondays. That is a perfect
example of this. Right. You might actually drive
the speed limit on Mondays. That statement is
a literal truth, but it is totally evasive. regarding
what you did on Tuesday. Completely evasive.
According to the Bronsted framework, because
your statement about Monday was factually, literally
true, you haven't committed perjury. Yeah. Even
though your entire goal was to mislead the officer
about Tuesday. Yeah. And the Supreme Court's
logic here is actually quite strict on the lawyers
themselves. I mean... Their view is that it is
the opposing lawyer's job to ask precise questions
and demand precise answers. If a witness gives
an evasive but literally true answer, the lawyer
needs to follow up and pin them down. It is not
the court's job to criminalize clever evasions
if the examining attorney fails to do their job.
That is wild. But prosecutors eventually got
tired of people slipping through that literal
truth loophole, didn't they? Oh, definitely.
So Congress expanded the prosecutor's toolkit
by introducing Section 1623 of the United States
Code. And this covers mutually incompatible statements.
Right. Under Section 1623, the government realized
it was just too hard to prove exactly which statement
was the lie. Because they'd have to prove the
underlying fact. Exactly. So now they don't have
to. If you make two statements under oath that
are so completely incompatible that at least
one of them must necessarily be false, that contradiction
alone is enough for an indictment. So if I swear
on Monday the light was red... and then swear
on Tuesday the light was green. The prosecutor
doesn't have to prove the actual color of the
light. The impossible contradiction is the crime.
It's essentially trapping you and your own logic.
Pretty much. But there's also a fascinating defense
built into the U .S. system designed to encourage
people to eventually do the right thing, which
is the defense of recantation. Yeah, this is
an interesting one. If you get on the stand,
tell a lie, but then get cold feet and admit
you lied during that exact same proceeding, you
can sometimes save yourself from prosecution.
It proves that the ultimate goal of the system
is to get to the reliable facts, not just to
punish people. Ideally, yes, the goal should
be truth, but the reality of how the laws applied
can be much darker. And this is where we get
into the highly controversial perjury trap. Which
sounded completely like entrapment when I was
reading it. It walks a very fine line. A perjury
trap is a specific tactic where a prosecutor
calls a witness to testify before a grand jury,
not because they're genuinely trying to gather
facts to solve an underlying crime, but explicitly
hoping to draw a perjurious statement out of
that specific witness. So they ask questions
they already possess the answers to. Exactly.
They have the documents, they know the truth,
but they ask the witness anyway, hoping the witness
will lie to protect themselves or someone else.
Wow. If the witness lies, the prosecutor suddenly
has a clean, easy perjury conviction, even if
they never had enough evidence to charge anyone
for the original crime they were investigating.
That is intense. And to see how these traps,
these literal truth loopholes and these incredibly
strict definitions play out in reality, we really
just have to look at the rogue's gallery of notable
figures accused or convicted of this crime. Yeah,
it's a long list. It proves that no amount of
wealth fame, or status makes you immune to the
mechanics of the law. Let's look at some of the
convictions. You have elite athletes, like American
track and field star Marion Jones, who was sentenced
to six months in prison in 2008 for two counts
of perjury. You have musicians, like the rapper
Lil Kim, who received a year and a day for lying
to a grand jury about a shooting outside a radio
station. You also see it heavily in the financial
sector. Bernie Madoff was found guilty of perjury
in 2009 as part of the fallout from his massive
Ponzi scheme. Of course. And crucially, it happens
within the justice system itself. Former LAPD
detective Mark Furman entered a no contest plea
to a perjury charge related to his testimony
during the O .J. Simpson murder trial. Yeah,
our materials note that the Furman situation
was one of the most seminal, high profile occurrences
of police perjury in modern history. Definitely.
There is even a specific slang term for it within
the legal community. Testiling. Testiling. It's
when officers stretch the truth, manipulate timelines,
or outright lie on the stand specifically to
ensure a conviction they feel is justified. It's
a huge issue. But it's not just convictions that
shake things up. The mere allegation of perjury
can alter the course of history, especially at
the highest levels of government. And you see
this constantly across the entire political spectrum.
Absolutely. And, you know, looking at our sources,
we have to just report the facts neutrally here.
Former President Bill Clinton was accused of
perjury in 1998, which was the direct catalyst
for his impeachment by the House of Representatives.
Right. While no criminal charges were ultimately
brought, he accepted an immunity deal upon leaving
office that included a suspension of his law
license. And on the other side of the aisle.
Exactly. Similarly. Lewis Scooter Libby, a high
-ranking official in the George W. Bush administration,
was convicted of perjury and obstruction of justice
in connection with the Plame affair. You also
see these allegations frequently aimed at the
intelligence sector. Oh, for sure. Michael Hayden,
former CIA director, faced heavy scrutiny and
accusations of lying to Congress in 2007 regarding
enhanced interrogation techniques. And there
was James Clapper, too. Right. James Clapper,
the former director of national intelligence,
faced intense public accusations of perjury after
telling a congressional committee in 2013 that
the NSA did not collect data on millions of Americans.
A statement that was later contradicted by massive
intelligence. Exactly. But just as the allegations
can ruin a career, those precise loopholes we
discussed earlier can save one. Take Andy Colson,
a British journalist in political aid. Oh, the
phone hacking scandal. Yes. He was completely
cleared of perjury charges stemming from the
News International phone hacking scandal. Why?
Specifically because the Scottish court ruled
his false testimony was immaterial. Wow. immaterial.
Even though he lied, the lie didn't meet that
strict materiality requirement to be considered
perjury under the law. Which goes to show how
vital that three -part anatomy of the crime really
is. Absolutely. But there's one more layer that
high -profile figures, corporate executives,
and powerful people often fall victim to, and
that is subbernation. Right, we mentioned that
briefly earlier. Under 18 USC section 1622 in
the U .S., subbernation of perjury, which is
the act of inducing someone else to lie, carries
the exact same weight and potential prison time
as committing perjury yourself. So a CEO can't
just tell their assistant to go take the fall
on the witness stand. Exactly. For powerful individuals,
having an underling lie for them is just as criminally
dangerous as taking the oath and lying themselves.
That makes total sense. just has to prove that
you positively induced the false testimony and
that you knew the statement the person was going
to make was false. So we've traveled from ancient
Anglo -Saxon courts where witnesses were immune
from prosecution because of the fear of divine
wrath, to the brutal mob justice of the pillory,
to California's modern death penalty stakes,
to the nuanced literally true loopholes navigated
by highly paid defense attorneys. It's quite
the journey. We've seen that perjury is so much
more than just telling a fib. It's a deliberate
material deception accompanied by willful intent
that threatens the foundational structure of
the justice system. It really is the ultimate
crime against the process of finding the truth.
If the courts cannot trust the evidence presented
to them, the entire mechanism of justice grinds
to a halt. So what does this all mean for you,
the person listening right now? The next time
you're filling out a government form, or you
click I agree on a digital legal document, or
you sign your income taxes in April, remember
the anatomy of this crime. Definitely keep it
in mind. You don't need a judge in a black robe
looking down at you from a bench to be held to
the highest standard of the law. The mechanism
of perjury and the expectation of absolute material
truth is woven into the fabric of everything
we do. It is everywhere. And you know, examining
all of this leaves us with an important, almost
uncomfortable philosophical question to consider
regarding the balance of power in our legal system.
Oh, I know where you're going with this. We discussed
the perjury trap earlier, where a prosecutor
intentionally maneuvers a witness into lying,
not to solve a crime, but simply to charge them
with the manufactured crime of perjury. It's
a total paradox. It is. Because if the entire
underlying purpose of the justice system, from
the ancient oaths to modern evidence law, is
to uncover the truth, is it ever ethical for
that same system to intentionally manufacture
a crime of deception? Exactly. If the courtroom
oath is supposed to be society's perfect filter
for the truth, what happens when the government
uses that filter as a weapon? Something for you
to chew on long after the audio stops playing.