By: Kaitlyn de Armas
Volume IX – Issue I – Fall 2023
“Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth? So help you God.” [1] More than simply a required component of a trial, this oath sets the precedent for the foundation of justice—the truth. This statement, requiring witnesses to verify the validity of their assertion, can be boiled down to the deceivingly simple principle of not lying. Although this precondition seems rather rudimentary to abide by, considering the complexities of defining falseness convolutes the difference between the truth, the untruth, and a lie. Understanding the distinction between these conditions is critical in the courtroom setting, where a fallacy is more than just immoral; it is a crime. The offense of breaking this oath, known as perjury, is defined by Cornell Law School as when a witness “knowingly and intentionally lie(s) about a material issue.” [2] So, if the definition of perjury depends on the ambiguity of what constitutes a lie, understanding and clarifying its true meaning is essential in upholding justice. This piece will first outline how a lie and perjury have been defined colloquially and within the courts. Then, I will explore and analyze the case of Bronston v. United States (1973), which further defined the federal perjury statute by revealing a loophole in the truth. Finally, this article will highlight shortcomings in the perjury statute through the literal truth standard, posing future implications and suggesting modes of improvement.
The true definition of a lie is more confounding than the antithesis of the truth, for it actualizes a state of mind, a concept that cannot be verified by the listening party. Consequently, the speaker’s intention affects the sincerity of the claim. Colloquially, the fallacy has been compartmentalized into three categories: a standard lie, a misleading statement, and false denial. The standard lie reflects the most universal understanding of deception, when the hearer puts their faith in the speaker, who breaches this trust by expressing a literally untrue statement. Beyond this common definition, an untruth exists in a misleading statement. This falsity occurs when the speaker invites the listening party to believe or understand something false through the verbal admission of something that is either true or has no truth value. Although the speaker did not technically articulate a lie, they worded the statement to produce the same response of falsehood from the hearer. Finally, false denial is when an individual withholds or denies relevant information from a prior accusation of wrongdoing that causes the hearer to be misled. These variations reveal the inherent subjectivity of defining the truth, which is dependent on the context of the situation and the beliefs of the parties at hand. [3]
In a legal setting, these alternatives must be clearly outlined under the term of perjury in order to eliminate any ambiguities that may infringe on justice. Derived from English common law, modern federal perjury is outlined in three statutes: sections 1621, 1622, and 1623. §1621 is violated when an individual takes an oath before a competent tribunal, officer, or person and willingly states false information that is relevant to the case at hand. [4] Similarly, §1623 states that perjury has been committed when an individual makes a false declaration under oath in any proceeding to a court, grand jury, or supporting system that is pertinent to the case. [5] These two statutes differ in their requirements for burden of proof, and §1621 calls for the defendant to willfully provide testimony, while §1623 only requires the defendant to know the statement is false. [6] §1622 is more of a side constraint to the aforementioned statutes, declaring that it is illicit to procure another to commit perjury. [7] Coming together to define perjury holistically, sections 1621 and 1623 reflect the first, standard lie, while section 1622 refers to the third version of a lie by false denial through association to the commission of perjury. Hence, there is no statute to acknowledge the second class of fallacy: misleading.
This legal loophole revealed itself in 1946, when Samuel Bronston carefully crafted a response that resided in the gray zone between fact and fallacy. Bronston was a movie producer under his own company, Samuel Bronston Productions, Inc., which held 37 bank accounts across five countries. After the failure of one of his films, Bronston filed for federal bankruptcy protection, seeking an arrangement under the Bankruptcy Act for the multitude of foreign bank accounts he was supervising. In his hearing, Bronston was questioned as to whether he currently held or had ever held any accounts in Swiss banks, which he did: Bronston personally maintained and used an account in Geneva just before the bankruptcy filing. In response to the line of questioning, Bronston stated that he did not presently have any Swiss bank accounts, but that his company had an account there in the past. Hence, his assertion does not discuss his ownership of his past personal accounts and is factually true—it just did not answer the question at hand. Bronston was nonetheless charged with committing perjury, which led to his conviction by the United States District Court for the Southern District of New York. [8] Although the Second Circuit affirmed this decision, the case was appealed to the Supreme Court and reversed. The Court held that the statement was literally true, so it could not be considered perjurious. Bronston’s answer was non-responsive, which would not be included in the statute’s definition out of concern that it would set a precedent subject to ambiguity. [9] If non-responsive answers were considered perjurious, it would be up to juries to interpret the understanding and intention of the respondent—a responsibility far too subjective and nuanced for the average onlooker. Hence, even though Bronston’s response may have been intended to mislead the prosecution, the Court ruled that altering the entire perjury statute would be exorbitant. The questioner could have avoided such a mishap by rephrasing the question in a manner that more specifically prompted the answer he was looking for. Inversely, the examiner had the opportunity to follow-up his original question after Bronston’s unresponsive return, calling forth a more clarified answer regarding his personal holdings. Bronston followed the perjury statute as it was written, so it was ultimately up to the petitioner to craft questions that would coach the returns he was looking for.
Instead of completely changing the perjury statute, the Court instituted the literal truth standard as a sort of clarification amendment. This standard differentiates between alleged false testimony and the actual truth in order to protect witnesses who misunderstand a question and inadvertently provide an insufficient or equivocal response. [10] Theoretically, Bronston could have simply misconstrued the question because it did not specifically address him and ask about his specific Swiss bank accounts. The first question prior to that of contention asks, “Do you have any bank accounts in Swiss banks, Mr. Bronston?” to which Bronston responded, “No, sir.” This inquiry specifically clarified the ownership of the accounts through the second person possessive “you” and targeted the question to Bronston himself. Therefore, Bronston’s binary response of “no” could be translated into the direct negation of the question, expressly, “No, I do not have any bank accounts in Swiss banks.” There is no room for ambiguity for the listener regarding who’s banks the questioner is referring to. However, the second interrogation follows up the former with the question, “Have you ever?” Bronston responds, “The company had an account there for about six months, in Zürich.” [11] His answer is a factually true statement—his company, Samuel Bronston Productions, Inc., did have a Swiss Bank account that Bronston and the company were no longer in possession of. However, this disclosure does not directly address the question at hand. Conventional conversation cues would lead the average listener to assume that the “you” in the examiner’s question was once again targeting Bronston himself, but Bronston escapes this line of questioning completely by supposing an answer that addresses an alternative you: his personal company. He even clarifies that he is responding to this interpretation of the question by specifying that “the company had an account there” in his answer. Perjury requires a false declaration under oath, and Bronston’s statement was nowhere near false; it was just irrelevant, which isn’t a crime. Furthermore, because no outsider can validate Bronston’s internal thought process, he could not be convicted for something he possibly did not know or genuinely misinterpreted. In this case, the Court ruled that Bronston’s interpretation was reasonable in casual conversation, so his subsequent response was not strong enough to support a perjury conviction.
Bronston’s answer was more than just a clever linguistic manipulation—he took advantage of several conversational maxims in order to deceive the questioner and avoid self-incrimination. Known as Grice’s Maxims of Conversation, these adages outline cooperative principles that people adhere to in conventional conversation in order to avoid ambiguity and miscommunication. Divided into categories of quantity, quality, relation, and manner, they essentially implore the speaker to say what they need to say, when they need to say it, in the way it should be said. [12] Essentially, they are the social norm equivalent to the perjury statute. The first is the maxim of quantity, which states that the speaker is as informative as they can be and provides as much information as needed, with no more and no less, for an understandable conversation. The second maxim of quality states that one must try to be truthful by not providing information that is either false or unable to be supported by evidence. Next, the maxim of relation asserts that the speaker should attempt to remain relevant to the conversation at hand and only say things that are pertinent. The last maxim is that of manner, which states that an individual should be as clear, brief, and orderly as possible, avoiding ambiguity and obscurity when possible. [13] Together, these maxims create a set of guidelines the speaker and hearer are expected to follow for a comprehensible and productive conversation.
In Bronston v. The United States, Bronston manipulated the maxims of quantity, relation, and manner in order to evade self-incrimination. The first maxim of quantity was broken when Bronston simultaneously provided more and less information than necessary. He responded to the second line of questioning, which was assumed to be about his personal holdings, with irrelevant information about his company’s accounts. Bronston also refrained from mentioning the useful information concerning his own Swiss bank accounts. This combination of simply unessential information was clearly intended to mislead the petitioner and the jury, for Bronston recognized that the questioner would assume he was going to respond in a manner that provided the correct amount of information, not the bit more and less he included. Similarly, Bronston infringed on the maxim of relation by providing information that was not relevant. While his answer was pertinent to the general schema of questioning, it was irrelevant in regard to the specific question at hand. The questioner did not want to know about the company’s past holdings in Switzerland—he wanted to know about Bronston’s personal accounts. Finally, Bronston broke the maxim of manner by purposefully providing an obscure answer. There is no way to externally prove that Bronston understood the intent of the questioner, but it can be assumed from the context of the case that he was aware of the examiner’s objective, because of the detail in his response. In his previous and following answers, Bronston’s responses are short and binary, but he specifically outlined the subject he was referring to in his contentious response. Thus, it would appear that he chose to purposefully be obscure, in order to evade a response that could get him in trouble. Although Bronston may not have been aware of the specificities of Grice’s Maxims, it is evident in the structure of his response that he was exploiting these conventions to his advantage.
The Court ruled that Bronston’s misuse was not perjurious, for his statement was factually true, and, therefore, did not infringe on the statute as it stood. Although Bronston’s statement may not have been ruled as perjury, statements considered lies and those deemed perjurious are not one in the same. While perjury only considers the objective wording of the elicited utterance, the lie takes into account the speaker’s intent and context, in other words, Grice’s Maxims. A lie takes place when the hearer puts faith in the speaker to speak with validity, and the speaker breaks this trust. [14] This fractured confidence between conversants is rooted in a betrayal from the maxims of conversation, for these rules dictate norms the speaker is expected to follow. Consequently, when an individual makes a false statement and/or abuses the maxims to deceive the hearer away from the truth, then a lie has been told. The validity of the statement becomes subsidiary to the intent: a false statement without the purpose of deception is not a lie, while a true statement with the intent to deceive is. Hence, the consequence of the statement determines whether a lie has been stated; if the hearer is left believing something that is untrue, they have been lied to.
Firstly, consider a situation where the speaker states an untrue remark, but has no intention to deceive the hearer. For example, say my friend asks what time an assignment is due, and I respond with the time the professor told me in class. Unbeknownst to me, the professor emailed the class that he had extended the deadline, so the time I had given my friend was no longer accurate. My statement was then factually untrue, adhering to the first condition, but I do not meet the second criterion because I had no intention of deceiving the hearer. Most people would not consider my statement a lie, but, rather, a miscommunication because it was an innocent mistake. Now, consider the alternative, where the statement is literally true, but the intent is for the hearer to believe something false. This scenario would mimic the case of Bronston v. The United States, where Bronston’s statement was valid but intended to deceive the hearer. Because his declaration was meant to produce the same effect as a lie, it should be constituted as such. He broke the trust of the hearer by infringing on Grice’s Maxims, for these rules dictate norms the speaker is expected to follow. Although there is no way to physically prove Bronston’s intent to mislead, he had motives to protect himself and his company. Combined with the relatively unambiguous line of questioning, it is reasonable to conclude that Bronston was aware of the way the hearer would assume he was following the maxims and interpret his testimony as a conclusive response. Consequently, the intent to deceive in Bronston’s statement reflects the admission of a lie. If perjury is only dependent on the validity of the statement, while a lie considers intent, then Bronston lied under social conventions but did not commit perjury.
Defining the truth becomes a convoluted process, for it requires the discernment of both verbal utterances and thought processes. The Court attempted to clarify this in Bronston v. The United States by only considering the actual content of the statement instead of the intent. While a lie only requires the aim to deceive, perjury necessitates the admission of a factually untrue statement. Furthermore, this judgment places responsibility on the hearer instead of the speaker to determine the validity of the claim. Because a lie is dependent on the intent of the speaker, if the statement made is literally true, the speaker is to blame if the effect of the conversation is the acceptance of a fallacy. Perjury, on the other hand, shifts this burden to the hearer to clarify what the speaker has just said. As long as the initial statement is factually correct, no perjury claim can stand. Considering the intent of the speaker is relevant in less material situations in everyday conversation, the Court recognizes that this is far beyond the objectivity of the law. Bronston v. The United States ensures that future cases will be able to avoid ambiguity and obscurity by clarifying the truth of what is said, not what is understood. Refining the definition and enforcement of perjury will prevent speakers from attempting to evade the complete truth, allowing trials to execute justice to the high standard the United States prides itself on.
Endnotes
[1] “Rule 6.10 Courtroom Oaths.” North Dakota Court System, https://www.ndcourts.gov/legal-resources/rules/ndrct/6-10-1.
[2] “Perjury.” Legal Information Institute, Legal Information Institute, https://www.law.cornell.edu/wex/perjury.
[3] Green, Stuart P. “Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements.” Hastings Law Journal, UC Hastings Scholarship Repository, https://repository.uchastings.edu/cgi/viewcontent.cgi?article=3462&context=hastings_law_journal.
[4] “18 U.S. Code § 1621 - Perjury Generally.” Legal Information Institute, Legal Information Institute, https://www.law.cornell.edu/uscode/text/18/1621. Accessed 1 Dec. 2023.
[5] Robbins, Ira P. “Perjury by Omission.” American University Washington College of Law, 27 Sept. 2019, https://www.wcl.american.edu/impact/lawwire/perjury-by-omission/.
[6] “18 U.S. Code § 1623 - False Declarations Before Grand Jury or Court.” Legal Information Institute, Legal Information Institute, https://www.law.cornell.edu/uscode/text/18/1623#:~:text=Whoever%20under%20oath%20(or%20in,material%20declaration%20or%20makes%20or. Accessed 1 Dec. 2023.
[7] “18 U.S. Code § 1622 - Subornation of Perjury.” Cornell Law School, Legal Information Institute, https://www.law.cornell.edu/uscode/text/18/1622.
[8] “Bronston v. United States - 409 U.S. 352, 93 S. Ct. 595 (1973).” Lexis Nexis, https://www.lexisnexis.com/community/casebrief/p/casebrief-bronston-v-united-states.
[9] Robbins, Ira P. “Perjury by Omission.” American University Washington College of Law, 27 Sept. 2019, https://www.wcl.american.edu/impact/lawwire/perjury-by-omission/.
[10] “Bronston v. United States.” Wikipedia, Wikimedia Foundation, 21 Feb. 2022, https://en.wikipedia.org/wiki/Bronston_v._United_States.
[11] “Bronston v. United States - 409 U.S. 352, 93 S. Ct. 595 (1973).” Lexis Nexis, https://www.lexisnexis.com/community/casebrief/p/casebrief-bronston-v-united-states.
[12] “Cooperative Principle.” Wikipedia, Wikimedia Foundation, 17 Nov. 2023, https://en.wikipedia.org/wiki/Cooperative_principle#:~:text=In%20other%20words%3A%20say%20what,quality%2C%20relation%2C%20and%20manner.
[13] “Grice’s Maxims.” SAS UPenn, The University of Pennsylvania, https://www.sas.upenn.edu/~haroldfs/dravling/grice.html. Accessed 26 Nov. 2023.
[14] Isenberg, A., 1973. ‘Deontology and the Ethics of Lying,’ in Aesthetics and Theory of Criticism: Selected Essays of Arnold Isenberg, Chicago: University of Chicago Press, 1973. 245–264.