Suborning Perjury

Courts and other government bodies rely on witnesses to tell the truth—and nothing but the truth—in the interests of justice. A witness who perjures oneself undermines this system of justice and commits a crime. If someone encouraged the witness to lie, they've also undercut the system and may be guilty of suborning perjury.

What Is Suborning Perjury?

A person commits suborning perjury if they encourage a witness to give false testimony under oath in a court or other proceeding, and the witness actually gives false testimony (commits perjury). Here is what a prosecutor will have to prove when charging a defendant with suborning perjury.

Meaning of Suborn—Defendant Attempts to Persuade the Witness

"Suborn" means to cause or bring about. A person charged with suborning perjury is guilty only if the person tried to convince a witness to lie under oath. The prosecutor doesn't need to prove the defendant threatened the witness (that's another crime).

Defendant Believes That the Testimony Is or Will Be False

The person attempting to sway a witness must believe that the testimony they are 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).

Witness Lies Under Oath—Commits Perjury

Suborning perjury occurs only if a witness 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 the witness to lie isn't guilty of suborning perjury.

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 an employee to lie about the company's safety procedures when talking to the press is probably not guilty of suborning perjury.

Can Attorneys Let Clients Lie Under Oath?

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 their client, or any witness the lawyer intends to call, plans to lie under oath.

Duty of Truthfulness to the Court

Attorneys have a special duty as officers of the court not to allow the justice system to be misled or undermined by false information. This rule of professional conduct is known as the duty of "candor toward the tribunal." In other words, lawyers have a duty of truthfulness to the court.

Can't Call the Witness to the Stand

Not only are lawyers barred from trying to influence a witness to lie under oath, they should not call a witness whom they know or believe will lie under oath. 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.

Applies to Criminal Defense Attorneys

These rules apply to criminal defense lawyers as well. However, their clients have a right to testify, which can place the lawyer in a predicament. The criminal defense lawyer can't refuse to call the defendant. Depending on the situation, the lawyer might need to withdraw as counsel or divulge certain information to the court. Sometimes, the lawyer can put the defendant on the stand and allow them to testify in a narrative fashion, without asking any questions or soliciting testimony.

Is Suborning Perjury a Felony?

Federal and many states' laws make suborning perjury a felony.

Federal and State Penalties for Subornation of Perjury

A person convicted of subornation of perjury will face up to five years in prison if convicted in federal court.

(18 U.S.C. § 1622 (2024).)

Many states also punish subornation of perjury as a felony. For instance, North Carolina makes the offense a class I felony, with a maximum prison sentence of two years. California and Virginia impose the same penalty for suborning perjury as they do for perjury. In California, both perjury and suborning perjury carry two, three, or four years of prison time. Virginia makes these crimes class 5 felonies.

(Cal. Penal Code §§ 126, 127; N.C. Gen. Stat. § 14-210; Va. Code §§ 18.2-434, 18.2-436 (2024).)

Additional Criminal Charges

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 they had nothing to do with the crime. For example, suppose a person induced false testimony from a witness 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 also for being an accessory to the crime charged in the case.

Examples of Suborning Perjury

Although subornation of perjury charges are not that common, they do happen.

Suborning Perjury Convictions

For instance, in 2012, a D.C. criminal defense attorney was convicted of subornation of perjury, among other crimes. The attorney, Charles Daum, was found guilty of devising a plan to convince a jury that drugs seized by police did not belong to his client. As part of the plan (which included fabricating evidence), Daum convinced two witnesses to commit perjury and placed them on the stand. He received a federal prison sentence of over five years.

In 2024, a self-employed contractor was convicted of suborning perjury, among other charges, in a bankruptcy fraud case. Ricci attempted to conceal substantial assets from the bankruptcy court. As part of his scheme, he convinced a witness to commit perjury before the bankruptcy trustee. He received a three-year federal prison sentence.

Suborning Perjury in the News

Although the following cases don't involve formal charges, the two most well-known suborning perjury cases are accusations against two U.S. presidents.

President Clinton was accused of convincing Monica Lewinsky (a White House intern) to lie in an affidavit in a civil court case (brought by Paula Jones against Clinton for sexual harassment).

President Trump was accused of inducing Michael Cohen (his lawyer) to testify falsely before Congress regarding Trump's business negotiations in Russia.

Common Defenses to Suborning Perjury Charges

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 told the truth defeats a charge of suborning perjury.

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.

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.

Recantation by the lying witness is not a defense to suborning perjury. A witness may avoid punishment for perjury by recanting previous 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.

Talk to a Lawyer

Suborning perjury is a serious and complex crime. Talk to 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). Ask for a public defender if you have been charged with a crime and can't afford a lawyer.