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Can guilt for the crime of perjury apply outside of judicial or other government proceedings?

The answer to this very general form of the question seems to be no. Affirming that answer: It appears that the legal definition of perjury, for example in 18 USC §1621, applies only where "a law ... authorizes an oath to be administered." So it would seem that nobody can make an affirmation "under penalty of perjury" unless the government permits it.

Can or does perjury apply in or other (ADR) proceedings?

There might be a law that explicitly says oaths administered in the course of bona fide ADR are made under penalty of perjury; if so that's the answer to this question. If not: At least U.S. courts generally respect and enforce ADR results. Which would make it seem in the public interest to enforce perjury against anyone who lies to frustrate ADR proceedings. What's the reality?

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RCW 7.04A.170 states that "An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths", also "All laws compelling a person under subpoena to testify and all fees for attending a judicial proceeding, a deposition, or a discovery proceeding as a witness apply to an arbitration proceeding as if the controversy were the subject of a civil action in this state". There may be states or circumstances where arbitrators are not authorized to administer oaths.

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    So, yes there can be perjury?
    – Dale M
    May 7 at 9:31
  • @DaleM Yes. There can be perjury any time there is an oath or affirmation under penalty of perjury.
    – ohwilleke
    May 7 at 14:47
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What's the reality?

There is great diversity in how arbitration proceedings are conducted (as another answer notes, there are also lots of forms of ADR, especially mediation, that don't involve testimony at all).

It isn't unusual for testimony that is sworn, or made under penalty of perjury to be used in arbitration, although it is not a universal practice. Arbitrators can administer oaths under the relevant section of the Uniform Arbitration Act (adopted in some form in 35 states and codified in Colorado at Colorado Revised Statutes § 13-22-217(1) which states in pertinent part: "An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths."). Perjury in those cases could be prosecuted as a crime.

(Footnote: This language of the Uniform Arbitration Act is actually interesting itself because usually oaths can only be administered by government officials who take oaths of office themselves, or by a notary public who takes an oath of office upon receiving a government approved commission. The power to issue subpoenas is likewise usually limited to government appointed court clerks who swear an oath of office, to state licensed attorneys who swear an oath of office and sometimes to certain other sworn government law enforcement officials. But being an arbitrator isn't a regulated profession under the Uniform Arbitration Act or under the laws of the vast majority of states, and the parties to the contract decide who serves in that capacity. A nineteen year old high school dropout with felony sedition and perjury convictions who is an undocumented immigrant and is incarcerated at the time of the arbitration is still legally eligible to serve as an arbitrator. One can't be "disbarred" from serving as an arbitrator either.)

Even absent an oath or affirmation that a statement is made under penalty of perjury, false statements made in a proceeding could constitute criminal fraud.

This said, as a practical matter, perjury prosecutions related to testimony in judicial hearings or trials, or in any other adjudicative proceeding, including arbitrations, is vanishingly rare, and also very rarely provides a valid basis for attacking the validity of an arbitration award.

Consider the case of Colorado, where I live (the quoted material below is from something that I wrote and published elsewhere based upon annual statistical reports from the court system):

Colorado is a state with a population of roughly five million people. There are many hundreds of thousands of court cases in the state each year in which often multiple affidavits or declarations are filed and depositions are taken under oath, there are thousands of evidentiary hearings in the state courts of the state each year, and there are myriad documents executed by its citizens under oath or under penalty of perjury outside a court setting (e.g. in government paperwork).

An intentional false statement of material fact (i.e. a lie) made in testimony made under oath in a hearing, trial or deposition, or in an affidavit or a declaration or other document signed under penalty of perjury, can be prosecuted criminally in a perjury case under state law.

Most of the statements made under oath do not contain perjury, but a significant minority percentage do. Even if perjury were committed just 1% of the time (which is probably low [in the case of disputed court hearing and trial testimony and arbitration testimony]), there would be thousands of instances of perjury committed each year in the State of Colorado.

How many perjury prosecutions were commenced in the entire state of Colorado in all of its state courts (except Denver county court which is statistically separate) in the 2019 fiscal year (ending June 30, 2019)?

13.

There are 5 filed in District Court, which were probably felonies. There were 2 filed in juvenile delinquency actions. There were 6 filed in County Court, which were either misdemeanors or criminal complaints that would later have been transferred to District Court and would be in that case duplicative.

There are something on the order of a hundred professional arbitrators in the State of Colorado who conduct several thousand arbitrations a year in the state.

Many or most of these prosecutions probably involved intentional lies made in official documents, rather than in court testimony, let alone arbitration testimony.

I would be surprised if there were even 500 perjury prosecutions a year in the entire United States, federal and state and local and territorial and tribal combined, involving perjury during court or administrative hearing testimony, and I would be surprised if there were more than 15 a year in the entire United States in all of those forums combined, arising out of perjury in testimony in arbitration proceedings.

I wouldn't be surprised if there have been no more than one or two such prosecutions, if there have been any, arising out of sworn arbitration testimony or testimony made under penalty of perjury in an arbitration, in Colorado's entire history, with at most one or two more cases in its entire history involving unsworn fraud in arbitration testimony.

There are a variety of reasons why this conduct, which is clearly a crime in both court settings and in arbitrations, is so rarely prosecuted as perjury in criminal proceedings. And, this doesn't take away from the genuine potency of the fact that people who testify know that it is a crime to lie under oath and are told so. But, before considering any of those factors, it is critical to realize that this omnipresent threat is used exceedingly sparingly in practice.

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    That is eye-opening! I would note that the headline answer is in the third paragraph: "Even absent an oath or affirmation that a statement is made under penalty of perjury, false statements made in a proceeding could constitute criminal fraud."
    – feetwet
    May 7 at 0:15
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    I was also surprised to hear this. I'm wondering if this is a unique point of state law; I feel like the oath is an element of the offense in most cases I've seen.
    – bdb484
    May 7 at 0:46
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    @bdb484 An oath or affirmation is an element of perjury, but intentionally causing harm through false statements not made under oath (criminal fraud) is also a crime. Almost every state has a criminal fraud statute.
    – ohwilleke
    May 7 at 14:46
  • @ohwileke I see. I think that's too broad a definition of criminal fraud given Alvarez, but it's still intriguing once it's narrowed. Do you think one could be convicted of criminal fraud for unsworn lies in a mediation, for example? If a plaintiff exaggerates or fabricates his injuries, thus inducing the mediator to push the defendant for a larger settlement, has he committed criminal fraud? Does the defendant's voluntary agreement to the terms change things? An interesting possibility.
    – bdb484
    May 7 at 16:46
  • @bdb484 Mediation is trickier due to special laws about mediation confidentiality and due to causation and reliance issues. Not impossible, however.
    – ohwilleke
    May 7 at 17:43
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Yes. It is the witness's oath, not the nature of the proceeding, that puts the liar at risk of perjury. So while a lying witness in a criminal trial could face perjury charges, a lying attorney could not.

Witnesses in arbitration proceedings are generally placed under oath, basically the same as if they were in court, in a deposition, or signing an affidavit. They are therefore subject to perjury charges.

"ADR proceedings" is a very broad term, so the answer to that one would vary. ADR proceedings can be like a formal court proceeding, or it can be a very informal mediation. In the former case, the lying witness likely could face perjury charges; in the latter, probably not.

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    Per the linked question and 18 USC §1621 it appears that a person is not exposed to legal perjury merely by taking an oath or making a statement "under penalty of perjury." If you have some reference to the contrary that would be very helpful!
    – feetwet
    May 7 at 0:19
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    -1 @bdb484 Can you cite any legal basis for "It is the witness's oath, not the nature of the proceeding, that puts the liar at risk of perjury." If I were to publicly take an oath in the same words that a witness does that had no relation to any legal or governmental issue, do you think I would be even in theory subject to perjury prosecution if I had lied? May 7 at 0:34
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    Perhaps I'm wording it too broadly. By setting aside "the nature of the proceeding," I was referring to the trial/arbitration/ADR distinction, but I sort of thought it could go unspoken that we're talking about situations where someone is putting people under oath for a legitimate purpose. I agree that if a judge went around putting women under oath at the bar and asking them for their phone numbers, that would not be a perjury situation.
    – bdb484
    May 7 at 0:43

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