From Lying to Perjury

Linguistic and Legal Perspectives on Lies and Other Falsehoods

Laurence R. Horn

• Publisher: De Gruyter Mouton
• Year: 2022
• eBook ISBN: 9783110733815
• Edition: 1
• Topic: Languages & Linguistics
• Subtopic: Psycolinguistics
• Index: Languages & Linguistics

This volume provides new insights on lying and (intentionally) misleading in and out of the courtroom, a timely topic for scholarship and society. Not all deceptive statements are lies; not every lie under oath amounts to perjury—but what are the relevant criteria? Taxonomies of falsehood based on illocutionary force, utterance context and speakers' intentions have been debated by linguists, moral philosophers, social psychologists and cognitive scientists. Legal scholars have examined the boundary between actual perjury and garden-variety lies.

The fourteen previously unpublished essays in this book apply theoretical and empirical tools to delineate the landscape of falsehood, half-truth, perjury, and verbal manipulation, including puffery, bluffing, and bullshit. The papers in this collection address conceptual and ethical aspects of lying vs. misleading and the correlation of this opposition with the Gricean pragmatic distinction between what is said and what is implicated. The questions of truth and lies addressed in this volume have long engaged the attention of scholars in linguistics, philosophy, psychology, cognitive science, organizational research, and the law, and researchers from all these fields will find this book of interest.

IV Crossing the perjury threshold: Deceit and falsehood in the courtroom

Perjury cases and the linguist

Roger W. Shuy

Georgetown University

Abstract

Other chapters in this book deal with research and theory about lying, ethics, deception, bluffing, puffing, trickery, deceit, and morality in public and private life. This chapter describes the U.S. statutes concerning perjury and provides examples of how linguistic analyses were used with the language evidence in four representative perjury cases.

Linguists retained to examine the language evidence in perjury cases must first accommodate their analyses to the boundaries of perjury law. For this reason, United States statutes for perjury are first discussed. This is followed by a description of the important roles played by prosecutors, judges, and jurors who evaluate the language evidence. Finally, four perjury cases describe the way linguistic analysis has been used when a linguist was retained by either the defense or the prosecution.

1 U.S. perjury law

At common law, perjury has been described as “the willful giving, under oath, in a judicial proceeding or course of justice, of false testimony material to the issue or the point of inquiry” (J. Bishop, 2 Commentaries on the Criminal Law § 860, 1858). The “course of justice” refers to a proceeding, such as a creditor’s examination of a debtor or during a grand jury inquiry.

Other general understandings of perjury are specified in state and federal statutes and in the Court’s explanations of previous cases. The federal statutory definition in 18 United States Code Section §1621 declares:

Whoever – 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 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.

Linguists will notice that Section §1621 says, “does not believe to be true” rather than “knows not to be true” or “knows to be false.” To believe something is true or false is not the same as to know it is true or false, a semantic distinction that was apparently not conveyed in this US statute. Searle (1979, 12) observes that belief is a determinable rather than a determinate and asks, “When does the report of a man’s belief entail that the belief is true?” (159). Green (1989, 3) writes, “belief is what makes the difference (obviously) between a lie and a mistake. When people say something false that they believe to be false, they are lying, but if they say something that is false but they happen to believe it to be true, they are merely mistaken.” The United Kingdom’s Perjury Act of 1911 includes both of the words, “know,” and “believe,” in its definition of perjury: “If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding willfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury …”

It seems that both the US and UK perjury statutes permit people’s belief that something is true or false as sufficient to protect them from being charged with perjury. The question is how we can determine their intentions. If concrete evidence of this can be found in other communications by the witness, this evidence can be used to support their intended meanings. Lacking such evidence, Nunberg (1978, 94–97) suggests two context conditions that aid interpretation: (1) when a community’s normal belief about the meaning of that word is consistently used, and (2) when that word refers to things that are not normally represented by it. It would appear that legal communities in both the US and UK rely on statutes that consistently and normally state that when witnesses state that they believe something is either true or false such statements are at least somewhat equivalent to knowing that thet are either true or false. This also is consistent with Black’s Law Dictionary’s definition of believe as 1. “to feel certain about the truth of; to accept as true; 2. to think or suppose,” and knowing is “1. having or showing awareness or understanding: well informed. 2. deliberate; conscious.”

1.1 False statements about material matters under oath

Under §1621(1), the following is required to prove that persons have committed perjury: a speaker under oath before a judicial proceeding makes an oral statement relating to a material matter that the speaker knows to be false.

Perjury is not just any misstatement made while under oath. The Supreme Court of the United States has explained:

A witness testifying under oath or affirmation violates this section if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than the result of confusion, mistake, or faulty memory.

(United States v. Dunnigan, 507 U.S. 87, 94 (1993))

Here a “material matter” refers to false statements that have the potential of influencing the outcome of a trial or other official proceedings. But some false statements are not material to trial outcomes. False statements are different from simply making a mistake, because the law requires that any perjurious statements be made intentionally. These are considered different from evasion or half-truth because the perjury must be about some matter that the witness believes to be false and while doing so creates a misleading impression through indirection. While this may be dishonest, the law does not always consider this perjury.

1.2 Possible errors

The possibilities of errors in judging whether or not perjury has taken place appear in several contexts that are not relevant to the application of linguistic analysis. For example, there is a requirement that the witness be under oath. On rare occasions there have been times in which a witness testified without first being sworn. Another type of error happens when the person giving the oath is not qualified to do so. This arises more frequently in out-of-court proceedings, as in depositions and in those “courses of justice” referred to in the common law definitions of perjury. Obviously, these are issues for attorneys to address rather than linguists.

1.3 Perjury vs. false statements

There is a difference between perjury and false statements, because perjury connotes corruption and recalcitrance, while false swearing, usually made in a written statement while not under oath, connotes mere falsehood without moral judgment (Garner 1995). This difference is recognized in some jurisdictions but not in others.

In the U.S. federal jurisdictions, some false statements given while not under oath can be as damning as perjury (18 U.S.C. § 1001). In fact, if persons falsely deny that they committed a crime during their interviews with federal officers and give an exculpatory “no” or a mere “I didn’t do it,” they can be imprisoned for five years and be fined $10,000 (Brogan v. United States, 552 U.S. 398, 1998). For example, this was the 2004 stock trading crime for which the famous television personality, Martha Stewart, was convicted.

1.4 Linguistics and perjury

Linguistic analysis fits into this picture because the determination of perjury rests on the language used by both the questioner and the person who responds, which language in turn has to be assessed by the jury or by the judge in bench trials. Their task is how to determine whether perjury actually took place, whether it was mi...

Table of contents

• Title Page
• Copyright
• Contents
• Introduction: On lying and disleading
• I Lies and deception: The landscape of falsehood
• II Lying, deception, and speaker commitment: Empirical evidence
• III Puffery, bluffery, bullshit: How to not quite lie
• IV Crossing the perjury threshold: Deceit and falsehood in the courtroom
• Index