I ALWAYS HEAR THE PHRASE ‘UNDER PENALTY OF PERJURY, ‘ BUT WHAT EXACTLY IS PERJURY?
There are actually two separate laws for the state crime of perjury and the federal crime of perjury.
Nevada Revised Statutes Section 199.120 defines “Perjury” as “[a] person, having taken a lawful oath or made affirmation in a judicial proceeding or in any other matter where, by law an oath or affirmation is required and no other penalty is prescribed who: (1) Willfully makes an unqualified statement of that which the person does not know to be true; (2) Swears or affirms willfully and falsely in matter material to the issue or point in question; (3) Suborns any other person to make such an unqualified statement or to swear or affirm in such a manner; (4) Executes an affidavit pursuant to NRS 15.010 which contains a false statement, or suborns any other person to do so; or (5) Executes an affidavit or other instrument which contains a false statement before a person authorized to administer oaths or suborns any other person to do so, is guilty of perjury or subornation of perjury, as the case may be, which is a category D felony and shall be punished as provided in NRS 193.130.”
The federal law, codified at 18 U.S.C. § 1621, defines perjury as “Whoever – (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States. “
We will start with explaining the state law.
I don’t understand, why are there so many different parts to the definition?
Statutes are often difficult to understand because they use uncommon words that most people are not used to hearing. The easiest way to work out what a statute is saying is to take each clause, or section, by itself and then put the whole thing together.
Then what does the first clause mean?
The first clause, “[a] person, having taken a lawful oath or made affirmation in a judicial proceeding or in any other matter where, by law, an oath or affirmation is required and no other penalty is prescribed,” essentially means that in order for perjury to be possible, the person making the statement must have either taken an oath, or in some other way sworn that their statement is true.
Just about every movie, television show, or play that takes place in a courtroom has a scene depicting a witness, swearing ‘to tell the truth, the whole truth, and nothing but the truth, so help you God.’ This is exactly the type of oath that NRS 199.120 is referring to. However, for people whose religion is not focused on the Christian idea of ‘God,’ the Court will accept almost any oath that is reasonably calculated to ensure that you are telling the truth.
However, these courtroom oaths are not the only way you can swear that your words are the truth. Affidavits and affirmations are also sworn statements. Affidavits, simply put, are written statements of facts, voluntarily made by someone, known as the affiant. Affidavits must be made (or signed) in the presence of someone authorized to take the statement. Generally, in Nevada, an affidavit is nothing more than your version of facts, signed in front of an authorized notary public. Affirmations take two forms: the first is nothing more than the proper signing of an affidavit, the affiant is affirming that everything in the sworn statement is true. The second type of affirmation is a solemn and formal declaration of the truth of a statement used when a witness or expert can not, or will not, take an oath because of their religious convictions.
The second part of the first clause is much easier to understand; Perjury can only take place if the oath or affirmation was done for a judicial proceeding, or in any other matter where such an oath or affirmation is required. This should seem fairly obvious, you can’t be charged with perjury unless you are involved in some sort of legal or judicial proceeding.
The final part of the first clause is also easily understood; it simply states that NRS 199.120 only applies if your false statement is already covered under another statute or law. The most common example of this is statements made “under penalty of perjury.” Any false statement made “under penalty of perjury” is governed by Nevada Revised Statute 199,145 instead of NRS 199.120.
Everything below this clause in NRS 199.120 is a subsection included in this first clause.
So then what does each of the subsections mean?
Understanding each of the subsections if you take them one at a time and translate them out of legalese. As each subsection is explained below, remember that the first clause, as explained above, applies to all of them.
- “Willfully makes an unqualified statement of that which the person does not know to be true”.
If you intentionally made a statement without knowing the truth or falsity of that statement, and you did not tell the Court or the listener about your lack of knowledge, then you are guilty. This is basically a lie by omission. By not notifying the Court or listener that you do not know if your statements are true, you are intentionally misleading them into believing what you say.
It is important for you to remember that this only applies when your statements are made under oath or affirmation. Even though you are not actually lying, you are in violation of the law because you have intentionally misled the court.
- “Swears or affirms willfully and falsely in matter material to the issue or point in question”.
The first part of this subsection should be fairly clear, remember that the first clause we looked at automatically applies. Therefore, any statement that could be applied to the second subsection must be a sworn statement because it is said under either oath or affirmation. If the statement was not made under oath or affirmation, then it cannot be perjury.
The rest of the second clause is fairly straightforward: it simply means that you must have made the statement on purpose (willfully), and that the statement must relate to the matter at hand. In other words, you must have purposely made a false statement about something that is important to the issue being litigated. For example, you may have lied about what color shirt you were wearing on the day in question, but that is not likely to affect the outcome of the case. However, if you were lying about who was present at the time, that would almost certainly be important to the case, and as such would be considered perjury.
- “Suborns any other person to make such an unqualified statement or to swear or affirm in such a manner”
This subsection starts off with another legal word that is not common in every day language, but aside from that, is not difficult to understand. The first word, “suborns” is a synonym for “entices,” “persuades,” “convinces,” or “induces.” So, the third subsection means that anyone who entices, persuades, convinces, or induces someone else to lie under oath or affirmation is guilty of perjury.
- “Executes an affidavit pursuant to NRS 15.010 which contains a false statement, or suborns any other person to do so.”
NRS 15.010 refers to affidavits that accompany pleadings, motions, and orders that are filed with the Court. So the fourth subsection applies only to intentionally making a false statement in such an affidavit.
- “Executes an affidavit or other instrument which contains a false statement before a person authorized to administer oaths or suborns any other person to do so”.
There are four parts to this subsection. The first refers to the ‘execution’ of an affidavit or other instrument. This simply means that you have either written a statement, document or instrument, or that you have sworn to the validity of an already existing statement, document or instrument (such as an affidavit). The second part is straightforward, “which contains a false statement”. What is not obvious about this second part is that the false statement must be made knowingly. In other words, you have to know the statement, document or instrument contained a false statement in order to actually be lying. This is why many such documents contain language that states that the document is true “to the best of your knowledge.” The third part to this subsection refers to anyone authorized to administer oaths. The Court at large during a court case would be one example, as the specific individual who administers the oath is doing so on behalf of the court. Another example would be a notary public. The last part of the subsection brings back the word “suborns,” but uses it in reference to the rest of this subsection. In other words, enticing, persuading, convincing, or inducing someone else to execute an instrument with a false statement is just as bad as committing the perjury yourself.
But what about that last part of the Statute?
You can think of the last part of the Statute as the conclusion to the whole thing. Just like the first clause, the last also applies to all of the subsections. In other words, if you have committed any of the offenses discussed above, then you are “guilty of perjury or subornation of perjury, as the case may be, which is a category D felony and shall be punished as provided in NRS 193.130.”
What is a “category D felony”?
Felonies in Nevada are broken up into 5 categories, with A being the most serious and E being the most minor. Category D felonies are, therefore, the second most minor class of felony. Generally, Category D felonies carry with them sentences that can include:
- Between 1 and 4 years in prison; and
- The possibility of a fine up to $5,000.
Are those the only penalties associated with Perjury?
Those are the penalties that will attach if you are found guilty of actually committing, or convincing someone else to commit, perjury. However, in Nevada, even the attempt to convince someone else to commit perjury is a crime. It is, in fact, a gross misdemeanor and carries with it a penalty of:
- Up to 364 days in a County Detention Center or Jail; and/or
- The possibility of a fine up to $2,000.
Also, if you commit perjury, or convince someone else to commit perjury, and that act results in the conviction and execution of an innocent person, then you can be charged with murder, which is a Category A felony (the most serious felonies), which carries with it a possible sentence of
- Life without the possibility of parole; or
- Life with the possibility of parole after twenty years; or
- 50 years in prison with the possibility of parole after twenty years.
So, can I be convicted of attempting to convince someone to commit Perjury and actually convincing someone to commit Perjury?
No, unless the charges relate to attempting to convince one person to commit perjury and actually convincing another person to commit perjury. The attempted crime of suborning, or convincing, someone else to commit perjury folds itself into the crime of actually suborning or convincing someone to commit perjury.
So what about the Federal law?
The Federal law is much more straightforward, especially now that we’ve taken the state law step-by-step.
The federal law essentially is very similar to the state law in that anytime someone intentionally says something, under oath, that they know to be untrue, they are guilty of perjury.
As with the state law, the federal law applies in any context where the Government authorizes or requires an oath to be administered. The most common example is testifying as a witness or expert in a trial, but some other common situations are:
- Making a sworn written declaration, verification, certification or statement;
- Testifying before a federal grand jury;
- Testifying in deposition.
Please Note: while it is not specifically noted in the federal law, subornation of perjury, or convincing someone to commit perjury, is treated the same as actually committing perjury yourself, just as in the Nevada State law.
What is the difference between the state law and federal law, then?
There is very little difference between the state crime of perjury and the federal crime. The only real difference is that the federal crime carries with it a harsher penalty.
What is the penalty for the federal crime of perjury?
If you are convicted of the federal crime of perjury, you may face:
- Up to 5 years in a federal prison (since there are no federal prisons in Nevada, you would then be transported to an out-of-state prison); and/or
- Fines as set by the judge.
Are there any defenses if I’ve been accused of perjury?
There are a lot of possible defenses to a perjury. Of course, the exact defenses that will apply to your situation will depend on the specific facts, so it is very important that you speak with an experienced criminal defense attorney if you have been charged with perjury. However, some of the more common defenses are listed below.
- It is possible that you never actually took an oath, which is necessary to any charge of perjury;
- You believed you were telling the truth;
- You did not intend to lie;
- There is not enough evidence to prove all of the above;
- The lie was in regard to an immaterial matter.
Please Note: In Nevada, it is not a defense to perjury to claim that the oath was not properly administered. So long as you were aware that you were taking an oath, and the intent of the oath, then you can still be guilty of perjury even if it was not administered properly. Remember, the purpose of an oath or affirmation is more important than the form of the oath or affirmation.