4

Is it possible for a statement to retroactively become perjurious based on future actions?

Suppose:

  • I'm sworn in under oath (testifying in court, before congress, etc.)
  • I make a specific promise, e.g.:
    • "I will go there at the end of the month"
    • "I will direct my company to stop this practice immediately"
    • "I will pay $1,000 within two weeks"
  • When the time comes, I do not do it.

Is that perjury? How about with one or both of these additional factors (assume sufficient evidence):

  • I am fully capable of fulfilling my pledge but choose not to.
  • I did not intend to fulfill my pledge at the time I made it.
3

I think not

In Maryland (a typical state on such issues) the relevant law is Section 9-101 - Perjury, which reads in pertinent part:

a) Prohibited.- A person may not willfully and falsely make an oath or affirmation as to a material fact:

(1) if the false swearing is perjury at common law;

(2) in an affidavit required by any state, federal, or local law;

(3) in an affidavit made to induce a court or officer to pass an account or claim;

(4) in an affidavit required by any state, federal, or local government or governmental official with legal authority to require the issuance of an affidavit; or

(5) in an affidavit or affirmation made under the Maryland Rules.

A statement of intended future conduct is probably not a "fact" as required by this section. Classic perjury, that is making a false statement during testimony in an actual court session is covered by subsection (a)(1), which makes it relevant what was considered perjury at common law.

In Volume 2 of A Treatise on the Criminal Law of the United States By Francis Wharton (Kay and brother, 1874) section 2226 says:

At Common law perjury cannot be committed in an official oath, as far as such oath touches future conduct.

On page 321 of The Law and Higher Education: a Casebook by John Seiler Brubacher (Fairleigh Dickinson University Press, 1971) appears the phrase:

... a promise of future conduct, the breach of which would not support a conviction for perjury

This was in reference to the 1931 US law mandating a loyalty oath, and why such a law violates due process.

Also relevant is the article "When Is a False Statement Perjury?" by the MoloLamken law firm. This discusses the federal perjury lws: 18 U.S.C. §1621 and 18 U.S.C. §1623. There is no mention of false sttements about future conduct.

6
  • 2
    Interesting stuff. I suspected this was the case and am glad someone else researched it. I wonder about the Maryland statute, though. I think there's a good argument to be made that a statement of intent to engage in future conduct is a statement of fact. Maybe a better argument would be that in a legal proceeding, your future plans are rarely material.
    – bdb484
    Sep 18 at 19:01
  • 1
    @bdb484 Yes rarely materiel, but I suspect i can think of a case where they might be, such as a promise to make restitution being offered as mitigation in a sentencing proceeding, perhaps. Sep 18 at 19:06
  • 2
    @greendrake hahaha I don't know of any court on the planet that answers questions by asking whether one side thinks their preferred answer is an "obvious conclusion." I suspect most jurisdictions are going to ask for legal authority.
    – bdb484
    Sep 19 at 17:20
  • 2
    There are many things that seem like obvious conclusions in law. Unless one actually knows enough law to show it, this is a very bad way to determine an answer to a legal question. Providing resources to support the conclusion is absolutely required.
    – Nij
    Sep 20 at 8:22
  • 1
    @Greendrake I do not find it at all "obvious" that a promise is never a statement if fact. Usually not, yes. Usually a promise will; not be a materiel fact in a legal proceeding, but in some cases it could be. I went into older resources (which are in fact quite large and broadly-scoped) because I could not find comparably definite statements of the point in more recent sources. Sep 20 at 14:25
1

Yes, broken promises have been the basis of perjury convictions.

Perjury statutes vary from state to state, and so does the answer to your question. But the way most perjury statutes are structured, there is no reason that a broken promise could not be the basis of a perjury conviction.

Oaths are often grouped into two classes: (1) assertory oaths, which are oaths about the truth of the facts a person is relaying; and (2) promissory oaths, which are oaths about how we intend to act in the future.

The oath taken before testifying in a deposition or trial is usually thought of as an assertory oath. Promissory oaths are the kind you hear the president take when being sworn into office, or that immigrants take during naturalization ceremonies.

False statements about what happened in the past, made subject to an assertory oath, are the classic case of perjury, but perjury charges could likewise be sustained for false statements about what one intends to do in the future. For instance, in Norton v. State, 5 Ga. App. 586 (1909), the Georgia Supreme Court upheld a conviction for false swearing against an election official who swore he would "fairly, honestly and impartially" administer a primary election but then altered the results:

Our statute against false swearing was intended to punish the making of false oaths in other than judicial proceedings, being in this respect alone distinguished from the statute against perjury. Since perjury is limited to judicial investigations, and since these investigations generally relate to things which have already occurred, it is not remarkable that cases have not arisen involving the question as to whether perjury could consist in the violation of a promissory oath. The subject-matter of false swearing is not so limited, and may relate to the future. Morally speaking, it is as culpable for a person to swear that he will not do a thing, and then knowingly and wilfully do that thing, as it is for him to swear falsely as to what he has already done.

However, this seems to be the minority position. See, e.g., State v. McCarthy, 255 Wis. 234 (1949) ("Violation of an oath of office does not constitute perjury as that offense is defined in the law."); People ex rel. Bryant v. Zimmerman, 241 N.Y. 405 (1926) ("[Promissory oaths] may not be the basis of a criminal prosecution for perjury."); State v. Vause, 84 Ohio St. 207 (1911) ("The authorities agree that no officer can be punished for perjury by reason of nonfailure to comply with the conditions of such oath.").

In the assertory-oath context, it seems that perjury charges based on statements of intent to act in the future are fairly uncommon, but they do exist. Statements about a person's residence or domicile provide a good example, as the legal definition of these terms goes beyond the common definition to mean not just the place where a person currently lives, but the place where a person intends to return whenever they are away.

For various reasons, it can be financially beneficial for a person to spend extended periods of time in one place without other parties knowing that they either have no intent to stay or no intent to leave. Perhaps you want to claim a propety tax break for property that you don't actually live in, perhaps you want a better mortgage rate available only to first-time homebuyers, or perhaps you want to avoid paying sales taxes on an online transaction.

In any case, claiming residence in the favorable jurisdiction necessarily involves representing that you intend to return to that residence in the future. When you make that representation under oath, you are at risk of a perjury charge.

One example is Ind. Code § 35-44-2-1(a)(1), which makes it a crime to make "a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true." In White v. State, 25 N.E.3d 107, (Ind. App. 2014), an elected official councilman moved out of the district he was elected to represent, and then submitted a variety of statements under oath stating that his residence was actually his ex-wife's house, which was in his old district.

A jury convicted him of perjury for lying about his residence on his application for a new marriage license and on his voter registration form. On appeal, the court reversed the perjury conviction based on his marriage license application, because his precise street address was not material to the application, but it affirmed his perjury conviction based on his voter registration.

While it seems relatively uncommon to premise a perjury charge on a false promise made under oath, White points out the additional hazards associated with such a false statement. Besides the perjury charge, he was also convicted of mortgage fraud, voter fraud, and theft based on his misrepresentation about whether he intended to return to his old address.

And there are plenty of other examples of criminal convictions based on false promises. For example, a German immigrant's false promise, under oath, to forswear allegiance to the Nazis resulted in his being stripped of his citizenship in Knauer v. United States, 328 U.S. 654, (1946).

0

No because "under oath" can never apply to promises. "Under oath" is limited to legally specified statements of fact, such as testimony given in a trial or written declarations legally given to a party empowered to receive "sworn statements" (e.g. DMCA takedown notices have to include the "penalty of perjury" language). Two parties cannot arbitrarily declare that a certain statement is "under oath", only the legislature of courts can impose that condition on a statement".

A promise is not a statement of "fact as the person knows it". Perjury is where you make a statement that you know to be untrue ("I saw Smith take the knife") and cannot apply to a future event (under current technology). Under some conditions, a promise could constitute a binding contract which can be enforced, whereas perjury is a crime for which there are penalties. The assessment of whether a statement is perjurous is based on whether the person knew that the statement was false when he made the statement. It could constitute fraud of a person makes a promise, knowing at the time that he would not keep the promise.

1
  • Promises can, indeed be made under oath, and broken promises made under oath can be the basis for a criminal conviction. See my answer below.
    – bdb484
    Sep 26 at 3:41

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.