Suborning Perjury

Perjury is a crime committed when a person intentionally lies after swearing to tell the truth, in statements before a court (in a civil or criminal trial) or other proceeding. If the witness decides on his or her own to lie under oath and then does so without telling or otherwise alerting his or her lawyer, then only the false witness is guilty of a crime. The law prohibits and punishes perjury because the legal system depends upon truthful testimony in order to serve the interests of justice. A witness who swears to tell the truth but then lies undermines the foundation of the legal system. To learn more about the basics of perjury, see Perjury Laws & Penalties.

What is Suborning Perjury?

A person is guilty of suborning perjury if he or she attempts to induce a witness to give false testimony under oath in a court or other proceeding, and the witness actually  gives false testimony (if the person is an attorney, simply knowing of the witness’s plans is enough; see below). Here is what a prosecutor will have to prove when charging a defendant with suborning perjury.

The defendant attempted to persuade the witness

A person charged with suborning perjury is guilty only if the person tried to convince a witness to lie under oath. “Suborn” means to cause or bring about. But, the person attempting to induce a witness to lie need not threaten the witness. For example, in the congressional hearing scene in the movie  The Godfather Part II,  Michael Corleone and his lawyers surprised a witness during his testimony by bringing the witness’s Sicilian brother into the hearing room. No threat was explicitly made, but the witness changed his testimony.

The defendant believed that the testimony is or will be false

The person attempting to sway a witness must believe that the testimony he or she is trying to induce is false. So, pushing someone to tell the truth is not suborning perjury, no matter how aggressive the effort (but it might be another offense if a threat is involved).

The witness did, in fact, lie under oath

Suborning perjury occurs only if a witness actually lies under oath. This means that a person whose efforts to convince a witness to lie are unsuccessful is not guilty of suborning perjury because no perjury occurred. Likewise, if the witness agrees to lie but ends up not taking the stand, the person who persuaded him or her to lie is not guilty of suborning perjury. And, the witness’s lie must have occurred in a court or other official proceeding after the witness was sworn to tell the truth by a person authorized to issue the oath. So, a business owner advising his employee to lie about the company’s safety procedures when talking to the press is probably not guilty of suborning perjury.

Special Rules for Attorneys

Most of the time, merely knowing that someone else is planning on committing perjury, without trying to make it happen, will not amount to suborning perjury. But the rule changes when an attorney knows that his client or any witness the lawyer intends to call plans to lie under oath.

Attorneys have a special duty as officers of the court. Not only are they barred from trying to influence a witness to lie under oath, they also must not call a witness whom they know or believe will lie under oath. And, once an attorney learns that a client or any witness intends to lie under oath, the attorney must inform the witness of the consequences of committing perjury and advise the witness not to do so.

Witnesses who are not the lawyer’s client

In a civil or criminal trial, if the witness who intends to give false testimony is not the attorney’s client, the attorney is duty-bound not to call that witness. No matter how much the attorney’s client wants that person to testify, the lawyer can just say no.

Witnesses who are criminal defendants

But what happens when the witness is the defendant himself in a criminal case? In a criminal trial, defendants have the absolute right to testify, even over their attorney’s objections. Because a lawyer cannot stop a client from getting on the stand and lying, many lawyers will move to withdraw from the case. But judges will want to know why the attorney is making this request, and here is where the attorney faces a difficult choice. Divulging his client’s plans may amount to a violation of the attorney-client privilege; but if the attorney refuses to give a reason for his request to withdraw, the court may not grant it.

In such a situation, the attorney may be required to call the client to the stand, knowing he or she will lie. If this happens, the attorney must simply allow the client to testify in narrative fashion and not ask questions or otherwise guide or direct the testimony (this is the ABA “model rule”). That way, the attorney avoids participating in the perjured testimony.

Witnesses who are civil plaintiffs or defendants

Attorneys for civil plaintiffs or defendants who share their plan to lie on the stand do not face the same predicament as their criminal counterparts. Civil plaintiffs and defendants have no constitutional right to testify, so their attorneys may, and should, refuse to call them.

Learning about perjury after the fact

The special rules that apply to attorneys come into play not only when the lawyer learns of plans to testify falsely, but when the lawyer learns that the witness has already done so. For example, suppose an attorney in a harassment case calls a witness to the stand who testifies that she never socialized with the alleged harasser. After the witness has finished testifying, the attorney’s law clerk finds the witness’s Facebook page, which shows a photo of the witness and the alleged harasser at a tailgate party, toasting each other. The attorney has a duty to disclose the discovered perjury to the court and the attorney for the other side.

Common Defenses to Suborning Perjury

Here are the most common defenses to a charge of suborning perjury:

  • Truth is a defense.  As with an allegation of perjury, the fact that a witness actually told the truth defeats a charge of suborning perjury.
  • No suborning perjury if perjury did not occur.  Even a vigorous effort to get a witness to lie is not suborning perjury if the witness nevertheless tells the truth on the stand.
  • Belief that the testimony to be given is true is also a defense.  In addition to the defense of truth, where the person charged with subornation can show that he or she genuinely and reasonably believed that the witness’s testimony was true (although it was not), the charge of suborning perjury likely will not stand.

Recantation by the lying witness is not a defense to suborning perjury.  A witness may avoid punishment for perjury if she recants her previously false testimony during the same proceeding. But, the crime of suborning perjury is a separate crime and the witness’s recantation is no defense to that crime. Not only that, but the witness’s recantation will likely be used against the person charged with subornation, because it is an admission that perjury actually occurred!

How is Suborning Perjury Punished?

Federal laws against suborning perjury set the punishment at up to five years in prison, plus fines. States also punish suborning perjury, which is always a felony and will carry the possibility of at least a year in state prison.

A person charged with suborning perjury in a criminal trial may also be charged as an accessory to the underlying crime in that case, even if she had nothing to do with the crime. For example, suppose a person induced false testimony from a witness in order to conceal the crime for which the defendant was on trial. When people actively attempt to conceal a crime from the authorities, they can be prosecuted for being an “accessory after the fact” to the crime, or simply as an accessory. The suborner could end up being charged not only with suborning perjury, but for being an accessory to the crime charged in the case.

Additional Information

For more information on suborning perjury, see the following.

See a Lawyer

Suborning perjury is a serious and complex crime. If you are being investigated for suborning perjury, and certainly if you’ve been charged with the crime, you should see a lawyer immediately. Only an experienced criminal defense lawyer who is familiar with the law in your state (or, if the case is in federal court, an experienced federal practitioner) will be able to advise you as to the strength of the case against you and the availability of any defenses. And only a local lawyer who knows the prosecutors and judges in your courthouse can give you a realistic assessment on how the case is likely to proceed.

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