Perjury… or false swearing?
A lie under oath is a lie under oath.
But that doesn’t mean all lies under oath are equal in the eyes of the law.
The issue came up for The Legal Genealogist in a pair of reported court cases.
One is kind of an oddball case, out of New York in 1832, where the defendant said he couldn’t be charged with perjury because the acts he’d committed — if the charge was true — were actually false swearing.1
The other is also an oddball case, out of Louisiana, in 1945, in which a defendant argued he couldn’t be charged with false swearing because the acts he’d committed — if the charge was true — were actually perjury.2
And the courts in both cases agreed with the defendants.
In the New York case, the defendant argued in essence that any lie he’d told wasn’t actually in front of a legally-constituted court. The particular case had been tried before a county court judge and two justices of the peace, when in fact the law required three justices of the peace.
And the New York court agreed, the syllabus says, that “the proceedings are coram non judice, and a person guilty of false swearing before such tribunal, thus illegally constituted, cannot be punished as for perjury.”3
In the Louisiana case, the defendant argued that there was a specific statute covering the lie he was alleged to have told under oath in an affidavit, and it defined the crime as perjury, not false swearing. That sounds like a really weird argument to make, since the penalty for perjury at the time was imprisonment at hard labor for up to five years, while the penalty for false swearing was six months to two years in prison. It only makes sense when you add in the fact that the legislature had fouled up the definition of perjury for a brief time and left out a word that was kind of important… the word “false” in defining the statements covered.
And the Louisiana court agreed that the act, if committed, was perjury, not false swearing, but perjury was defined to include lawful acts, so nobody could be prosecuted at all for that specific lie during the specific time that perjury was badly defined in the law.
Okay. Really, now…
Isn’t a lie under oath a lie under oath no matter what?
Nope. Not under the law.
Perjury, you see, isn’t false swearing, and false swearing isn’t perjury.
Perjury is defined as the “willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding.”4
False swearing, on the other hand, is defined as a “misdemeanor committed … by a person who swears falsely before any person authorized to administer an oath upon a matter of public concern, under such circumstances that the false swearing would have amounted to perjury if committed in a judicial proceeding.”5
Perjury has to be part of a judicial proceeding, then, unless a statute specifically and expressly includes some other out-of-court sworn statement, and perjury is almost always a felony. In other words, big time crime with big time criminal penalties. And false swearing is all the rest — and it is, or at least it can be defined as, a misdemeanor. Lesser crime, lesser penalties.
Yes, a lie under oath is a lie under oath.
But when and where and how matters.
Particularly to defendants with clever lawyers who see a loophole in the law…
And — sigh — to genealogists trying to make sense of court records…
Cite/link to this post: Judy G. Russell, “That lie under oath…,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 13 Sep 2021).
- People v. Tracy, 9 Wend. 265 (1832). ↩
- State ex rel. Sanchez v. Smith, 207 La. 735 (1945). ↩
- Yeah, I know. Really helpful, right? Does it help at all when I tell you that coram non judice means “in the presence of a person not a judge”? See Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 276, “coram non judice.” ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 890, “perjury.” ↩
- Ibid., 475, “false swearing.” ↩