Smith is subpoenaed as a witness for the defense in a criminal case. The prosecution is allowed to treat the witness as hostile, and Smith is directed to limit his responses to yes and no. Assume that the defense attorney decides that Smith is not helping his client and sits silently during the cross-examination. Prosecution asks a question which Smith reasonably feels he lacks the legal acumen to answer without putting himself in jeopardy of prosecution for perjury. Smith invokes the 5th, but is granted immunity from prosecution and is ordered to testify. However, the one crime that immunity does not cover is perjury for that testimony. Smith clearly needs his own lawyer, but he is not "under arrest", and AFAIK has no right to an attorney to tell him whether to say "yes" or "no" to the question. Assume that the judge and the prosecutor are unsympathetic to Smith, and will only act as mandated by law on his behalf. Bear in mind that "yes" and "no" are not literally true or false taken in isolation, they only have truth value given an assumed context, which Smith fears he does not understand (but doesn't have the background to explain).

What legal mechanism exists under US law to protect Smith from placing himself in legal jeopardy in this situation? As always, case citations appreciated.

  • 5
    Is it realistic that the judge would direct a witness to literally answer only yes or no? That happens in movies, but I'm not sure sure about real life. After all, loaded questions are a thing. Everything I'm finding online suggests that other answers, e.g. denying an implicit premise of the question, are allowed as long as they're responsive. Commented Sep 28, 2020 at 19:43
  • Another possibility is that Smith could simply say he won't answer until he's spoken to his attorney. He may be jailed for contempt, but while in jail I presume he'd be able to talk to his lawyer, and once he's clarified things with them, he can say he's ready to testify and he'll be released. Commented Sep 28, 2020 at 19:59
  • @NateEldredge The approach for the jail/contempt scenario should work as you mention unless Smith is assisted by a public defender. In the event that it is a public defender, he will not necessarily assist Smith on clarifying the questions, but only represent him on the issue of whether Smith's refusal to testify was for good cause. Commented Sep 28, 2020 at 20:27

1 Answer 1


Perjury prosecutions are hard to win, and therefore are not often brought. It is hard to think of a situation in which both "yes" and "no" would be subject to a perjury prosecution.

This Justia page says that for statements made under oath, one must prove the following elements to establish a case for perjury:

  • A person took an oath to truthfully testify, declare, depose, or certify, verbally or in writing;
  • The person made a statement that was not true;
  • The person knew the statement to be untrue;
  • The person made the false statement willfully; and
  • The subject matter of the statement was material to the proceeding in which it was made.

A US DOJ page on Elements Of Perjury -- Specific Intent says:

The third element of a perjury offense is proof of specific intent, that is, that the defendant made the false statement with knowledge of its falsity, rather than as a result of confusion, mistake or faulty memory. United States v. Dunnigan, 507 U.S. 87, 94 (1993). Section 1621 requires that the defendant have acted "willfully"; the section 1623 requirement is to act "knowingly." In practice, these standards are virtually identical, although the government need not prove both willfulness and knowledge to sustain a section 1623 prosecution. United States v. Fornaro, 894 F.2d 508, 512 (2d Cir. 1990). Under either statute, the government must demonstrate the defendant voluntarily made the false statement with knowledge of its falsity. If the defendant believed his or her statement to be true when it was made, even though it was false, this essential element will not have been proven.

Smith could reply "Either 'yes' or 'no' would be a misleading answer. I would prefer to give a more detailed answer. May I do so?" If, after that, the Judge insists on a Yes or No answer (which does happen but none too often) I think it would be very hard indeed to make a case for perjury from the answer.

Such a request to expand the answer would make the "willful" element almost impossible to establish.

Smith could also ask to consult counsel before giving an answer, and it would be unusual for this to be refused. If Smith had gone though a plea of 5th amendment and immunity process, it is likely that Smith would have consulted a lawyer during the process, and pretty much certain that Smith had a chance to do so.

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