ARTICLES
TO TELL THE TRUTH: A QUI TAM ACTION FOR
PERJURY IN A CIVIL PROCEEDING IS NECESSARY
TO PROTECT THE INTEGRITY OF THE CIVIL
JUDICIAL SYSTEM
John L. Watts∗
I.
INTRODUCTION
Trials have often been described as a “search for truth.”1 Many of the
judicial system’s procedural and substantive rules seek to serve that end. The
requirements of the Federal Rules of Civil Procedure2 and the Federal Rules of
Evidence,3 as well as those inherent in oath taking4 and cross-examination,5 all
∗ Assistant Professor, Barry University, Dwayne O. Andreas School of Law; J.D., Harvard Law
School, cum laude, 1996; B.A., University of Maryland, summa cum laude, 1992. The author would like
to thank the Honorable Henry Coke Morgan, Jr., United States District Court Judge for the Eastern
District of Virginia, for his example of honesty and common sense while the author served as his
judicial clerk in 1996 and 1997. The author would also like to recognize his research assistant, Jane M.
Goddard, without whose efforts this Article might never have been completed.
1. E.g., Nix v. Whiteside, 475 U.S. 157, 166 (1986) (describing “the very nature of a trial as a
search for truth”); Tehan v. United States ex rel. Shott, 382 U.S. 406, 416 (1966) (stating that “[t]he
basic purpose of a trial is the determination of truth”); TechSearch, L.L.C. v. Intel Corp., 286 F.3d
1360, 1378 (Fed. Cir. 2002) (describing “trial court’s inherent search for truth” as foundation for
judicial system’s credibility).
2. See, e.g., Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d
1062, 1063 (2d Cir. 1979) (stating that Federal Rules of Civil Procedure transformed litigation process
from “trial-by-surprise into a more reasoned search for truth”); McCormick v. Mays, 124 F.R.D. 164,
165 (S.D. Ohio 1988) (asserting court’s commitment to aid in determining truth and to goal of
“secur[ing] the just, speedy, and inexpensive determination of every action” (quoting FED. R. CIV. P.
1)).
3. See, e.g., FED. R. EVID. 102 (“These rules shall be construed to secure fairness in
administration, elimination of unjustifiable expense and delay, and promotion of growth and
development of the law of evidence to the end that the truth may be ascertained and proceedings
justly determined.”); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152-53 (1999) (stating that Federal
Rules of Evidence seek to aid search for truth).
4. See, e.g., FED. R. EVID. 603 (requiring witnesses to declare under oath their intent to testify
truthfully); United States v. Zizzo, 120 F.3d 1338, 1348 (7th Cir. 1997) (stating that Federal Rule of
Evidence 603 requires truthful testimony in order to preserve integrity of judicial process).
5. See, e.g., Perry v. Leeke, 488 U.S. 272, 282 (1989) (reasoning that cross-examining witness
immediately after direct examination is more likely to result in honest answers than allowing witness
to consult with his attorney before questioning).
773
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aim to ensure that the search for the truth will proceed efficiently and effectively.
From early on,6 perjured testimony has been regarded as “an obvious and
flagrant affront” to the basic truth-seeking function of judicial proceedings.7
Accordingly, all American jurisdictions have sought to protect the judicial
system by criminally punishing those who commit perjury.8
Despite the procedural and substantive tools intended to prevent and
expose perjury, many commentators believe that perjury has become
increasingly common and tolerated in modern civil litigation.9 The reasons for
the increased incidences of perjury are certainly multifaceted, but include both
society-wide changes and specific changes to the civil litigation system.
Historically, the effectiveness of the oath depended on the witness’s belief in an
omniscient, omnipotent divine being who would detect and punish the false oath
in this world or the next.10 While a witness is no longer required to swear an oath
to God, the oath’s purpose remains: to rouse a witness’s conscience and remind
her of possible earthly punishments if her conscience should prove wanting.11
Nevertheless, the last few generations have seen a marked decline in religious
conviction,12 as well as a decline in the external social stigma and internal shame
associated with being branded a liar.13 As a society, we have simply grown
accustomed to, and tolerant of, a wide range of mischaracterization, distortion,
6. See Michael D. Gordon, The Invention of a Common Law Crime: Perjury and the Elizabethan
Courts, 24 AM. J. LEGAL HIST. 145, 150 (1980) (noting that perjury, as we use term today, had origins
in England’s Perjury Statute of 1563, but also acknowledging that punishment for crimes similar to
perjury was known to ecclesiastical conciliar and common law courts before 1563).
7. United States v. Mandujano, 425 U.S. 564, 576 (1976).
8. See, e.g., Mandujano, 425 U.S. at 576 (noting congressional action to impose criminal
punishment for false testimony under oath); United States v. Manfredonia, 414 F.2d 760, 764 (2d Cir.
1969) (identifying goal of perjury statute as promoting justice by punishing witnesses for false
testimony).
9. E.g., Alan Heinrich, Comment, Clinton’s Little White Lies: The Materiality Requirement for
Perjury in Civil Discovery, 32 LOY. L.A. L. REV. 1303, 1318 (1999) (maintaining that many lawyers
believe perjury is “customary” in civil proceedings); Mark Curriden, The Lies Have It: Judges Maintain
That Perjury Is on the Rise, but the Court System May Not Have Enough Resources to Stem the Tide,
A.B.A. J., May 1995, at 68, 68-69 (discussing widespread belief among judges that perjury in civil cases
is commonplace). See also Part II.B for a discussion of perjury prosecution and the ineffectiveness of
potential criminal punishment.
10. United States v. Looper, 419 F.2d 1405, 1406 n.2 (4th Cir. 1969); Arnold v. Estate of Arnold,
13 Vt. 362, 366 (1841).
11. See, e.g., FED. R. EVID. 603 (providing that absent other provisions, every person is
competent to testify, but will be required to state under oath her intent to testify truthfully); United
States v. Zizzo, 120 F.3d 1338, 1348 (7th Cir. 1997) (describing preservation of integrity of judicial
process as justification for witness’s testimony under oath).
12. See BARRY A. KOSMIN ET AL., THE CITY UNIV. OF N.Y., AMERICAN RELIGIOUS
IDENTIFICATION SURVEY (2001), http://www.gc.cuny.edu/faculty/research_briefs/aris/key_findings.htm
(indicating that randomized 2001 poll of 50,000 respondents showed number of adults who do not
subscribe to any religious identification doubled from 1990 to 2001).
13. RALPH KEYES, THE POST-TRUTH ERA: DISHONESTY AND DECEPTION IN CONTEMPORARY
LIFE 9-10 (2004).
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and outright lies from those in even the most powerful and trusted of positions,
and the courtroom reflects this change.14
Social changes in the perception of truthfulness have coincided with
important changes in the civil litigation system. We have become an
extraordinarily litigious society and jury verdicts dwarf those of past
generations.15 The financial incentives to lie during modern, high-stakes civil
litigation have never been greater for the parties, their paid expert witnesses, and
their attorneys.16 Given the potential awards, parties have a powerful incentive
to present favorable testimony even at the expense of the truth. Professional
experts, seeking repeat business in future cases from the parties and attorneys
they assist, know they are valued more for their ability to be “effective” than for
the reliability of the data and methodology supporting their opinions or
diagnoses.17 Attorneys retained on a contingency fee basis or financially wedded
to a few repeat corporate clients also have a greater incentive to avoid
“knowing” when clients and witnesses commit perjury and to ignore the perjury
if they become aware of it.18 These societal and systemic changes have advanced
the potential for perjury and rendered the traditional weapons to combat
perjury—including evidentiary and procedural rules, oath-taking requirements,
and cross-examination—ineffective.
In recognition of the increased frequency of perjury in civil cases and the
injustices that may result, commentators have occasionally proposed allowing a
private tort claim seeking compensatory damages by the party harmed by the
perjury.19 Despite these proposals, and numerous attempts to bring such claims
by aggrieved parties, no American jurisdiction recognizes a common law tort
14. See id. at 213-16 (describing psychological effects of abundance of lies in our society).
15. See Stephen D. Sugarman, A Century of Change in Personal Injury Law, 88 CAL. L. REV.
2403, 2426-28 (2000) (discussing dramatic increase in both number of lawsuits and size of verdicts from
end of nineteenth century to end of twentieth century).
16. See id. at 2413 (discussing increase in fraudulent personal injury claims as result of increase in
size of awards, but noting that data substantiating increase is hard to find).
17. See Lester Brickman, On the Relevance of the Admissibility of Scientific Evidence: Tort
System Outcomes are Principally Determined by Lawyers’ Rates of Return, 15 CARDOZO L. REV. 1755,
1790-91 (1994) (discussing how increasing rate of return for contingency fee lawyers creates
corresponding increase in financial incentives for expert witnesses that support lawyer’s theory of
liability or causation); Jeffrey L. Harrison, Reconceptualizing the Expert Witness: Social Costs, Current
Controls and Proposed Responses, 18 YALE J. ON REG. 253, 313-14 (2001) (concluding that market
forces place premium on expert’s ability to manipulate facts to support lawyer’s theory of case, rather
than on adherence to strict professional standards).
18. See, e.g., Lester Brickman, Ethical Issues in Asbestos Litigation, 33 HOFSTRA L. REV. 833,
845-46 (2005) (discussing questionable witness preparation techniques in asbestos litigation); see also
Stephen D. Easton, The Truth About Ethics and Ethics About the Truth: An Open Letter to Trial
Attorneys, 33 GONZ. L. REV. 463, 464 (1997-98) (deploring current state of profession in which lawyers
too often distort or ignore truth and avoid positive knowledge in order to win large verdicts).
19. See, e.g., John R. Alford, Jr., Comment, Lying on the Stand Won’t Cost You a Dime: Should
Courts Recognize a Civil Action in Tort for Perjury?, 44 WASH. & LEE L. REV. 1257, 1258 (1987)
(debating merits of recognizing tort action for perjury); David W. Eagle, Note, Civil Remedies for
Perjury: A Proposal for a Tort Action, 19 ARIZ. L. REV. 349, 350 (1977) (arguing in favor of awarding
damages for injury arising from perjury).
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cause of action for perjury.20 Uniformly, courts have rejected such claims
because of concerns that they would undermine the efficiency and finality of the
judicial process.21
In fact, witnesses and parties enjoy broad immunity from liability for their
testimony in judicial proceedings.22 This immunity has most commonly been
applied to bar claims for defamation,23 but has been applied with equal vigor to
bar tort claims for perjury.24 Two public policy rationales buttress this immunity
from civil liability for prior testimony: the undesirable chilling effect such suits
would have on the candor of witnesses and the likelihood of perpetual successive
litigation by parties dissatisfied with prior outcomes.25 The cases formulating
20. See, e.g., Heavrin v. Nelson, 384 F.3d 199, 202 (6th Cir. 2004) (noting consensus that perjured
testimony does not give rise to civil action for damages); Alford, supra note 19, at 1257 (observing that
courts in United States do not permit damages claims for injuries resulting from perjured testimony);
Eagle, supra note 19, at 349 (describing “well-settled” principle that harm from perjury does not give
way to civil action for damages); see also Briscoe v. LaHue, 460 U.S. 325, 341-43 (1983) (finding
concerns about perjury by police officers insufficient to warrant exception to common law rule of
immunity for perjured testimony); Richardson v. Albertson’s, Inc., No. 00-1215, 2000 U.S. App.
LEXIS 23300, at *3 (10th Cir. Sept. 13, 2000) (noting unsuccessful litigant may not maintain civil
action alleging perjury in prior proceeding); Cooper v. Parker-Hughey, 894 P.2d 1096, 1098-1100
(Okla. 1995) (chronicling historical origin and continued validity of common law immunity for
witnesses from civil liability for perjury in absence of statutory provision authorizing action).
21. See Briscoe, 460 U.S. at 335 (rationalizing absence of tort for perjury as protecting trial
participants from harassment); Alford, supra note 19, at 1265-66 (noting that public interest in finality
of judgments justifies judicial refusals of common law tort action for perjury damages); Eagle, supra
note 19, at 354 (indicating that policies of judicial economy and finality of judgments underlie judicial
rejections of common law tort claims for perjury damages).
22. See DAN B. DOBBS, THE LAW OF TORTS 1153-55 (2000) (discussing judicial proceeding
privilege). See generally RESTATEMENT (SECOND) OF TORTS § 588 (1977) (discussing witness privilege
within judicial proceedings).
23. E.g., Harlow v. Carroll, 6 App. D.C. 128, 136-37 (D.C. Cir. 1895) (finding privilege to apply
to counsel’s statements made in judicial proceeding if statements had “reference” to proceeding);
Buschbaum v. Heriot, 63 S.E. 645, 647 (Ga. Ct. App. 1909) (holding witness’s testimony privileged as
long as witness believed it to be true); Maulsby v. Reifsnider, 14 A. 505, 510 (Md. 1888) (holding that
words spoken by acting counsel could not give rise to claim for defamation if spoken in reference to
issue on trial); RESTATEMENT (SECOND) OF TORTS § 588 (1977) (stating witness is absolutely
privileged during judicial proceeding provided testimony relates to proceeding).
24. See, e.g., Heavrin, 384 F.3d at 200 (recognizing statements and testimony in legal proceedings
are privileged under Kentucky law and applying such privilege to bar claims of perjury); Richardson,
2000 U.S. App. LEXIS, at *3 (refusing to recognize civil claim for perjury); State Farm Mut. Auto. Ins.
Co. v. Singh, No. 96-55868, 1997 U.S. App. LEXIS 33045, at *2-3 (9th Cir. Nov. 17, 1997) (applying
California law of litigation privileges to bar claim for perjury); Cooper, 894 P.2d at 1101 (describing
bar on civil claim for damages from perjury as part of broader, absolute immunity for witnesses in
judicial proceedings). See supra note 20 for examples of courts barring perjury as a tort cause of
action.
25. E.g., Pratt v. Payne, 794 N.E.2d 723, 725 (Ohio Ct. App. 2003) (describing goals of protecting
witness’s ability to speak freely and ensuring finality of judgments as having equal importance); Dexter
v. Spokane County Health Dist., 884 P.2d 1353, 1355 (Wash. Ct. App. 1994) (citing objectives of
finality of litigation and witness protection as justifications for immunity from liability for prior
testimony); see also Alford, supra note 19, at 1265-69 (identifying goals of finality of judicial decisions
and encouragement of witness participation in lawsuits as justifications for rule barring civil actions for
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these public policy justifications have such a prestigious, ancient, and
homogeneous pedigree26 that courts and legislatures have failed to critically
evaluate them in light of developments in the substantive law, civil litigation, and
society.27 A careful evaluation, however, shows that a new approach is required.
The solution this Article proposes is a civil cause of action that will employ
private attorneys to serve as defenders of the sanctity of the judicial system,
rather than a civil cause of action that seeks to recover damages suffered by a
party to the prior litigation.28 The proposed Model Civil Perjury Act (“MCPA”)
features a qui tam provision that would allow anyone with knowledge of perjury
in a civil case to bring a civil cause of action on behalf of the jurisdiction where
the perjury occurred and to recover a civil penalty of at least $5,000 and up to
$50,000 for each instance of perjury proven by clear and convincing evidence.29
This private cause of action is modeled after the Federal False Claims Act,30
which empowers private persons with knowledge of those defrauding the
government to bring a civil suit on behalf of the United States government to
recover a civil penalty and triple actual damages.31 Congress enacted the False
Claims Act because the government lacked the investigatory and prosecutorial
resources to identify and pursue the vast fraud perpetrated on the government.32
It sought to eliminate these problems by enlisting the aid of private attorneys
motivated by proprietary gain in the form of a percentage of the government’s
recovery, which is paid as a bounty.33 The Act has been enormously successful
and is considered the primary tool by which the government combats fraud.34
In a similar fashion, the MCPA seeks to enlist the aid of private attorneys to
protect the judicial system from those who seek to undermine its fundamental
truth-seeking process by presenting perjurious testimony. The MCPA provides
perjury); Eagle, supra note 19, at 366-69 (discussing policy objectives of eliminating harassment of
witnesses that might hamper full cooperation with courts and ensuring finality of judgments).
26. Harlow, 6 App. D.C. at 136-37; Buschbaum, 63 S.E. at 647; Calkins v. Sumner, 13 Wis. 193,
195-96 (1860); Damport v. Sympson, 78 Eng. Rep. 769, 769 (K.B. 1596); Cutler v. Dixon, 76 Eng. Rep.
886, 887 n.(a) (K.B. 1585).
27. See, e.g., Heavrin, 384 F.3d at 202-03 (drawing on consistent application of common law rule
barring civil actions for perjury as justification for continued denial of such actions).
28. Maine is the only jurisdiction that recognizes a civil cause of action for damages. See infra
notes 214-217 for a discussion of Maine’s civil action statute and application.
29. See infra Part V.A for the text of the MCPA.
30. 31 U.S.C. §§ 3729-3733 (2000).
31. Id. § 3730(b).
32. See generally James B. Helmer, Jr. & Robert Clark Neff, Jr., War Stories: A History of the Qui
Tam Provisions of the False Claims Act, the 1986 Amendments to the False Claims Act, and Their
Application in the United States ex rel. Gravitt v. General Electric Co. Litigation, 18 OHIO N.U. L.
REV. 35, 35-51 (1991) (providing thorough and interesting history of creation and subsequent
amendments to False Claims Act).
33. Id. at 36.
34. Letter from Laurie E. Ekstrand, Dir., Homeland Sec. & Justice, U.S. Gov’t Accountability
Office, to the Honorable F. James Sensenbrenner, Jr., U.S. House of Representatives, the Honorable
Chris Cannon, U.S. House of Representatives & the Honorable Charles E. Grassley, U.S. Senate (Jan.
31, 2006), available at http://www.gao.gov/new.items/d06320r.pdf.
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incentives for civil perjury suits by awarding reasonable attorney’s fees to the
prevailing plaintiff, as well as a portion of the civil penalty imposed.
Additionally, the MCPA should inspire attorneys to take positive action to
protect and restore the integrity and legitimacy of the civil judicial system,
thereby enhancing the public perception of the legal profession.
Part II of this Article discusses the shortcomings of the judicial system’s
traditional tools employed to combat perjury in our modern society and the civil
procedure system. Specifically, this Part examines why social and religious
pressures to tell the truth, cross-examination, the Model Rules of Professional
Conduct, and criminal prosecutions for perjury are losing the struggle to control
perjurious testimony in modern civil litigation.
Part III addresses the historical public policy justifications for witness
immunity generally and particularly with regard to civil liability for perjury. The
concern for constraining witness testimony, protecting the finality of judgments,
and preventing successive litigation is certainly applicable to tort claims seeking
damages caused to a private party by perjury in the prior litigation. This concern
becomes less acute where the civil suit seeks to redress the harm visited on the
judicial system by perjury, rather than to disturb the prior judgment.
Nevertheless, the cases discussing witness immunity raise concerns of unfounded
retaliatory litigation that must be addressed in the text of the MCPA.
Part IV discusses the substantive and procedural flaws of Maine’s civil
perjury statute, the only act of its kind, and explains how the proposed MCPA
and its qui tam provisions overcome these inadequacies. Part V.A contains the
text of the proposed MCPA that seeks to harmonize the potential conflict among
preventing perjury, protecting witnesses from retaliation, and preserving the
finality of judgments. Part V.B.1 reviews the specifics of the qui tam provision,
including important safeguards to reduce the potential for abusive, retaliatory, or
frivolous litigation. Part V.B.2 demonstrates why the False Claims Act is the
perfect time-tested template for the MCPA. Part V.B.3 discusses how numerous
procedural requirements of the MCPA ensure that it will not be used as a tool
for frivolous or vexatious litigation. Part V.B.4 discusses the MCPA provision
that excludes from liability government employees and emergency services
providers testifying as to matters within the scope and course of their
employment, because they are frequently required to testify as fact witnesses in
civil litigation and have little incentive to commit perjury. Part V.B.5 addresses
protections the MCPA provides against retaliatory employment discrimination
for those who perform lawful acts in furtherance of an MCPA action, in order to
encourage whistleblowers. Finally, Part V.B.6 examines the MCPA evidentiary
provision that allows a finding of perjury under the MCPA to be admissible in
any future proceeding in which the witness testifies to the same extent as
convictions for crimes involving dishonesty. This provision is intended to prevent
abuses by professional expert witnesses and others that frequently testify.
Part VI summarizes the social and legal changes that have rendered the
traditional tools to fight perjury ineffective. It concludes by calling for the
legislature to boldly confront the problem of perjury by enacting the MCPA to
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support and enforce the essential truth-seeking process of the courts and the
legitimacy of the judicial system.
II.
A.
THE CURRENT WEAPONS TO COMBAT PERJURY ARE INSUFFICIENT
Religious, Social, and Moral Constraints on Perjury
The historical rationale for the oath was to invoke a witness’s belief that
divine retribution would follow false swearing, thus compelling the witness to tell
the truth.35 This rationale is predicated on the belief in a supreme being with the
power to visit punishment on a witness who broke the oath.36 Under the
common law, atheists and others “insensible to the obligation of an oath from
defect of religious sentiment and belief were incompetent to testify as
witnesses.”37 The courts reasoned that if witnesses did not believe in any
supreme being who would both discern the truth from the lies and reward or
punish accordingly, the oath could not possibly obligate them.38
Studies have consistently shown that Americans’ religious convictions have
decreased steadily with each generation.39 Accordingly, the number of witnesses
who are likely to possess the religious conviction necessary for the oath to serve
as an effective constraint on their willingness to lie has also steadily decreased
over time.40 Fear of divine retribution can no longer be depended on as an
effective deterrent to perjury.
35. See Benson v. United States, 146 U.S. 325, 336 (1892) (discussing history of common law
grounds for exclusion from witness stand including want of religious belief, conviction of crime, and
having interest in result); United States v. Miller, 236 F. 798, 799 (W.D. Wash. 1916) (citing Thurston
v. Whitney, 56 Mass. (2 Cush.) 104, 109 (1848)) (“Under the common-law rule a person who does not
believe in a God who is the rewarder of truth and the avenger of falsehood cannot be permitted to
testify.”); State v. Washington, 22 So. 841, 842-43 (La. 1897) (setting aside conviction for rape and
remanding for new trial where seven-year-old prosecution witness was allowed to testify although she
“never heard of the devil or the bad man or what would become of her if she told a lie”); Arnold v.
Estate of Arnold, 13 Vt. 362, 366 (1841) (stating that atheists are incompetent to testify).
36. United States v. Looper, 419 F.2d 1405, 1406 n.2 (4th Cir. 1969); Arnold, 13 Vt. at 366.
37. State v. Elliott, 45 Iowa 486, 489 (1877); see also Looper, 419 F.2d at 1406-07 n.2 (discussing
development of law in allowing atheists and nonbelievers to testify under oath, with fear of
prosecution replacing fear of divine retribution); Arnold, 13 Vt. at 366 (noting atheists are
incompetent to testify).
38. Arnold, 13 Vt. at 369-70.
39. KOSMIN ET AL., supra note 12. Additionally, experts are much less likely than lay witnesses to
believe in God. In a 1996 survey of 1000 members drawn from the current edition of American Men
and Women of Science, only 39% of scientists surveyed expressed a belief in God. Edward J. Larson &
Larry Witham, Scientists Are Still Keeping the Faith, NATURE, Apr. 3, 1997, at 435, 435. A survey of
members of the National Academy of Sciences found that among biologists, 65% expressed a disbelief
in God and only 5.5% expressed a belief in God. Edward J. Larson & Larry Witham, Leading
Scientists Still Reject God, NATURE, July 23, 1998, at 313, 313.
40. See supra notes 12, 35-37 for a discussion of the decline in religious convictions and the need
for religious belief to appreciate the gravity of the oath.
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Of course, all American jurisdictions have now abolished the requirement
that the witness believe in a supreme being.41 The Federal Rules of Evidence
require only that a witness “declare that the witness will testify truthfully, by
oath or affirmation administered in a form calculated to awaken the witness’s
conscience and impress the witness’s mind with the duty to do so.”42 The rule
seeks to preserve the integrity of the judicial process in two ways: by an appeal to
the witness’s conscience and by the witness’s apprehension of criminal
punishment for perjury.43 The effectiveness of an appeal to conscience cannot be
counted on with every witness, however. As the Court of Appeals for the
Seventh Circuit colorfully noted, under the liberal approach taken by the
Federal Rules of Evidence, “even the most dastardly scoundrels, cheats, and liars
are generally competent to testify.”44
There is reason to believe that witnesses are less constrained by conscience
than they might have been in an earlier, less cynical time. We live in what one
commentator has dubbed the “post-truth era.”45 While it may be difficult to
prove, it is generally accepted that Americans are more willing to lie and expect
others to lie more now than in past generations.46 Life is full of little white lies
and exaggerations. Advertisers, politicians, parents, children, neighbors,
colleagues, athletes, and others are respected and admired despite having been
caught in lies.47 National scandals and official lies about Vietnam, Watergate,
Iran-Contra, President Bill Clinton’s affair with Monica Lewinsky, the Bush
administration’s claim that Iraq possessed weapons of mass destruction, and
similar incidents of public deception have led to the result that we are no longer
surprised when we are lied to.48 In fact, we are often willing to forgive or even
justify the actions of the liar.49
41. Looper, 419 F.2d at 1406 n.2; 6 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW
§ 1817 (James H. Chadbourn rev. ed., 1976). Nor can evidence of religious belief be introduced to
enhance or attack credibility. FED. R. EVID. 610 (“Religious Beliefs or Opinions: Evidence of the
beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that
by reason of their nature the witness’s credibility is impaired or enhanced.”).
42. FED. R. EVID. 603.
43. See United States v. Zizzo, 120 F.3d 1338, 1348 (7th Cir. 1997) (discussing requirement of
Federal Rule of Evidence 603 that every witness vows to speak truth).
44. Id. at 1347. In Zizzo, the court upheld the convictions of defendants based, in part, on the
testimony of a witness deemed competent under the liberal standard of Federal Rule of Evidence 601,
despite the witness having previously perjured himself and stating on cross-examination that “the oath
to testify truthfully meant nothing to him.” Id. at 1347-48.
45. KEYES, supra note 13, at 9-13 (citing Steve Tesich, A Government of Lies, NATION, Jan. 6,
1992, at 12, 13). Keyes hypothesizes that repeated instances of high-profile dishonesty by politicians,
celebrities, and others have desensitized us to lies and left us “morally numb.” Id. at 11. What concerns
him most is the loss of stigma attached to telling lies. Id. at 9-10.
46. See id. at 11 (discussing opinions of eminent psychiatrists, psychologists, authors, and Pew
Research Center Poll which found that three-fourths of those surveyed believe people are not as
honest as they used to be).
47. Id. at 4-5.
48. KEYES, supra note 13, at 11, 181-83, 226-27.
49. Id. at 10.
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Even lying under oath is not universally viewed as sufficiently egregious and
shameful to warrant public scorn. Oliver North became a successful and popular
public figure for many, not despite having lied to Congress while under oath, but
because of it.50 President Clinton was seen by many as a victim after it was
disclosed that he lied under oath regarding his affair with Monica Lewinsky in
the Paula Jones sexual harassment suit.51 Mark Fuhrman has published several
successful books52 and become a television and radio celebrity53 despite being
one of the most famous perjurers in American history.54 We as a society simply
do not attach the social stigma to lying that we once did; accordingly, we do not
have the same self-censorship when it comes to lying.55 With today’s relaxed
standards, there is simply no uniformly accepted standard of truth to guide our
moral compass.56 Witnesses and litigants do not believe that it is immoral or
shameful to distort or abandon the truth because they know of others who have
done so without universal condemnation or legal consequences.57 The MCPA
would help restore the social stigma and shame of perjury by providing a means
to expose and condemn it.
50. At the tenth anniversary celebration of North’s testimony before Congress in the Iran-Contra
hearings, Senator Jesse Helms praised North as “a genuine American hero” and Representative Dan
Burton also praised North for finding “innovative ways to help” fight Communism. The Hero
Chronicles of the 1980’s: Oliver North, http://www.heroism.org/class/1980/north.htm (last visited Jan.
3, 2007). North narrowly lost a bid to become a U.S. Senator and today is a Fox News employee, the
author of the novel The Assassin, and host of television’s War Stories with Oliver North. Fox News:
Where Crooks Become Heroes, NEWS HOUNDS, Oct. 4, 2005, http://www.newshounds.us/2005/
10/04/fox_news_where_crooks_become_heroes.php.
51. See generally H. Geoffrey Moulton, Jr. & Daniel C. Richman, Of Prosecutors and Special
Prosecutors: An Organizational Perspective, 5 WIDENER L. SYMP. J. 79 (2000) (discussing troubling
aspects of Kenneth Starr’s investigation into Clinton’s conduct in connection with Paula Jones’s
lawsuit).
52. MARK FUHRMAN, DEATH AND JUSTICE: AN EXPOSE OF OKLAHOMA’S DEATH ROW
MACHINE (2003); MARK FUHRMAN, MURDER IN GREENWICH: WHO KILLED MARTHA MOXLEY
(1998); MARK FUHRMAN, MURDER IN SPOKANE (2001); MARK FUHRMAN, SILENT WITNESS: THE
UNTOLD STORY OF TERRI SCHIAVO’S DEATH (2005).
53. Mark Fuhrman is a frequent guest of Fox News’ Hannity & Colmes and On the Record with
Greta Van Susteren.
54. Fuhrman entered a plea of nolo contendere to perjury in connection with his testimony in the
case against O.J. Simpson for the murders of Nicole Brown Simpson and Ronald Goldman. Fuhrman
lied about his use of the word “nigger” when addressing or talking about African Americans. As part
of his plea agreement, Fuhrman received no jail time but was sentenced to three years probation and a
$200 fine. Order, People v. Fuhrman, No. BA 109275 (Cal. Super. Ct. Oct. 2, 1996), available at
http://www.lectlaw.com/files/case63.htm.
55. KEYES, supra note 13, at 9-15.
56. Id. at 10.
57. See JEROME FRANK, COURTS ON TRIAL 87 (Princeton Paperback ed., 1973) (1949)
(discussing pervasive misrepresentation, concealment, exaggeration, and suppression of truth in almost
all trials); KEYES, supra note 13, at 9-10 (discussing occasions of distortion of truth by public figures
that did not result in universal condemnation).
782
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Criminal Prosecutions and Punishment for Perjury
Although our criminal justice system punishes crimes to create a general
deterrent effect, current perjury prosecutions do not accomplish that goal. The
deterrent effect of punishment is a function of the likelihood of punishment as
well as the severity of that punishment.58 Studies have repeatedly demonstrated
that increasing the risk of punishment has a greater deterrent effect than does
increasing the severity of the punishment.59 The two most commonly utilized
federal perjury statutes, 18 U.S.C. §§ 1621 and 1623, provide for a maximum
sentence of five years, a fine, or both.60 These penalties appear sufficiently severe
to create deterrence if violators were being prosecuted.
The problem is not the severity of the potential punishment but the remote
risk of punishment. In 2003, of the 83,530 criminal defendants whose cases were
disposed of in United States district courts, only eighty-eight were charged with
perjury.61 Of these, seventy-five defendants were convicted and received an
average sentence of 26.8 months of incarceration.62 Few prosecutions for perjury
involve statements made in a civil case, and many of these involve civil forfeiture
cases or other circumstances where the government used the perjury statutes as a
tool for incarcerating a criminal who had otherwise eluded its grasp.63 Very
rarely will a witness or party in a typical civil suit face criminal prosecution, even
for clear cases of perjury.64
58. FRANKLIN E. ZIMRING & GORDON J. HAWKINS, DETERRENCE: THE LEGAL THREAT IN
CRIME CONTROL 158-72 (1973).
59. See SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES
150-53 (5th ed. 1989) (summarizing literature supporting conclusion that likelihood of punishment has
greater deterrent effect than severity of punishment); Michael K. Block & Robert C. Lind, An
Economic Analysis of Crimes Punishable by Imprisonment, 4 J. LEGAL STUD. 479, 483 (1975)
(analyzing deterrent effect of imprisonment based on probability and severity of sentence).
60. 18 U.S.C. §§ 1621, 1623 (2000).
61. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SOURCEBOOK OF CRIMINAL
JUSTICE STATISTICS 2003, at 423, 427 (2003).
62. Id. at 428.
63. E.g., United States v. Bankole, Nos. 97-4453 & 97-4544, 1998 U.S. App. LEXIS 26062, at *23, 12-13 (4th Cir. Oct. 14, 1998) (affirming district court’s conviction of mother of drug dealer for
falsely testifying in civil forfeiture proceeding that she purchased Mercedes with her own money, when
in fact her son bought it with drug proceeds); United States v. Nebel, No. 93-5593, 1994 U.S. App.
LEXIS 1076, at *18 (6th Cir. Jan. 19, 1994) (reversing district court’s suppression of deposition
testimony, sought to be used by government in later perjury prosecution, in civil forfeiture proceeding
despite finding that defendant’s Fifth Amendment rights were violated); United States v. Bissell, 954
F. Supp. 841, 856 (D.N.J. 1996) (recounting charge that defendant lied in civil forfeiture deposition,
claiming he relied on appraisal to value property sold following seizure when no appraisal had been
done at time property was sold).
64. See Curriden, supra note 9, at 68-70 (providing anecdotal discussion of numerous cases where
prosecutors refused to pursue perjury charges for lying under oath in civil cases, even when trial court
judges referred matters to their offices). But see Ruth Marcus, Prosecuting Civil Perjury Is Unusual,
but It Can Mean Prison, WASH. POST, Mar. 3, 1998, at A4 (identifying several cases of federal
prosecution against witnesses who committed perjury in civil proceedings).
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For example, in ABF Freight System, Inc. v. National Labor Relations
Board,65 the Supreme Court held that the Board had discretion to order
reinstatement of an employee unlawfully terminated, despite finding that the
employee had committed perjury during the administrative hearing.66 While
agreeing that the Board had discretion to order reinstatement despite the
perjury, Justice Scalia, joined by Justice O’Connor, felt compelled to write a
concurring opinion to address the Board’s tolerance of the perjury:
[T]he Board has displayed—from its initial decision through its defense
of that decision in this Court—an unseemly toleration of perjury in the
course of adjudicative proceedings.
....
. . . United States Attorneys doubtless cannot prosecute perjury
indictments for all the lies told in the Nation’s federal proceedings—not
even, perhaps, for all the lies so cleanly nailed as was the one here. Not
only, however, did the Board not refer the matter for prosecution, it
did not impose, indeed did not even explicitly consider imposing,
another sanction available to it (and not generally available to federal
judges): denying discretionary relief because of the intentional
subversion of the Board’s processes.
....
. . . My impression, however, from the Board’s opinion and from its
presentation to this Court, is that it is really not very much concerned
about false testimony. I concur in the judgment of the Court that the
NLRB did nothing against the law, and regret that it missed an
opportunity to do something for the law.67
Even if the risk of prosecution can be increased, it will only have a greater
deterrent effect if potential perjurers are aware of, or believe that, the risk of
prosecution has increased.68 Certainly the perception among seasoned lawyers,
judges, prosecutors, and the general public69 is that perjury committed in a civil
case is rarely,70 if ever,71 the subject of criminal prosecution.72 Lack of
65. 510 U.S. 317 (1994).
66. ABF Freight Sys., Inc., 510 U.S. at 322-23, 326.
67. Id. at 327-31 (Scalia, J., concurring) (emphasis added).
68. See KADISH & SCHULHOFER, supra note 59, at 151 (“[I]ncreased enforcement does not by
itself result directly in increased general deterrence . . . . [C]ertainty of punishment is important only as
it contributes to the appearance of certainty.”).
69. See Curriden, supra note 9, at 71 (noting growing concern among lawyers and judges with
increasing incidence of perjury without subsequent sanctions).
70. Id.
71. While representing Monica Lewinski, William H. Ginsburg made the following challenge
regarding prosecutions for perjury in a civil case: “I challenge you or any of the pundits on the air to
find me a case of civil perjury that has been pursued criminally at the federal level in the last 100 years.
I dare say they cannot.” Marcus, supra note 64, at A4 (quoting Today (NBC television broadcast Feb.
24, 1998)).
72. Testifying before the Judiciary Committee regarding the impeachment of President William
Jefferson Clinton, Ronald K. Noble, former Under Secretary for Enforcement of the Department of
the Treasury, former Deputy Assistant Attorney General of the United States, and former Assistant
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prosecution is more startling in the face of the common observation among
lawyers that “scarcely a trial occurs in which some witness does not lie.”73 As one
prosecutor put it, “[i]f perjury were water, the people in civil court would be
drowning.”74 In the rare case where a judge does refer allegations of perjury to a
federal prosecutor, the prosecutor often declines to investigate the allegations,
even where there is strong evidence of perjury, because he does not have the
time or resources to pursue the case.75 Prosecutors’ case loads have steadily
increased and there is simply no political will to allocate scarce resources to
prosecute civil perjury at the expense of violent crime.76
While this reluctance to criminally prosecute perjury in civil cases may be
understandable, it is regrettable because perjury undermines the real and
perceived legitimacy of the civil judicial system.77 The judicial branch, unlike the
executive and legislative branches of government, depends almost entirely on its
perceived legitimacy and moral authority to carry out its important functions.78
United States Attorney for the Eastern District of Pennsylvania, agreed with other federal prosecutors
and testified that, generally, “Federal prosecutors are not asked to bring Federal criminal charges
against individuals who have allegedly perjured themselves in connection with civil lawsuits.” H.R.
REP. NO. 105-830, at 215, 217 (1998).
73. The Consequences of Perjury and Related Crimes: Hearing Before the H. Comm. on the
Judiciary, 105th Cong. 85 (1998) (statement of Alan M. Dershowitz, Felix Frankfurter Professor of
Law, Harvard Law School) (quoting anonymous appellate judge); see also Richard H. Underwood,
False Witness: A Lawyer’s History of the Law of Perjury, 10 ARIZ. J. INT’L & COMP. L. 215, 250 (1993)
(“Perjury is decidedly on the increase, and at the present time in our local courts scarcely a trial is
conducted in which it does not appear in a more or less flagrant form.” (quoting FRANCIS WELLMAN,
THE ART OF CROSS-EXAMINATION 72 (Collier 1978) (1903))).
74. Curriden, supra note 9, at 70 (quoting E. Michael McCann, county prosecutor in Milwaukee,
Wisconsin).
75. Testifying before the Judiciary Committee regarding the impeachment of President William
Jefferson Clinton, Edward S. G. Dennis, Jr., former Acting Deputy Attorney General of the United
States, stated that prosecutions of private parties who committed perjury during a civil litigation are
“rare” and “rarer still are criminal investigations in the course of civil litigation in anticipation of
incipient perjury or obstruction of justice.” H.R. REP. NO. 105-830, at 217; see also Curriden, supra
note 9, at 70 (“Prosecutors say they have so many drug cases, so many white-collar criminal cases, so
many bank robberies, that perjury falls to the bottom of the priority list.” (quoting U.S. District Court
Judge Zita L. Weinshienk on reasons prosecutors have given for not pursuing possible perjury cases
she has referred)).
76. See Curriden, supra note 9, at 70-71 (noting that high difficulty of proof and small penalties
associated with perjury further discourage criminal prosecution).
77. See Guy v. Lexington-Fayette Urban County Gov’t, 57 F. App’x 217, 225 (6th Cir. 2003)
(perjury undermines rule of law that person speaking under oath has presumption of truth); In re
Amtrak “Sunset Limited” Train Crash in Bayou Canot, 136 F. Supp. 2d 1251, 1269 (S.D. Ala. 2001)
(stating that public interest in integrity of judicial system is undermined by perjury in civil litigation);
Frank v. State, 183 S.W.3d 63, 86 (Tex. App. 2005) (“Perjury undermines the very fabric of our justice
system. Our rule of law depends on honesty: on honest judges, on honorable counsel, and on witnesses
who are governed by the sanctity of the oath they swear or affirm. When any element of this rule of
law fails its obligation of honesty, both the State and the defendant are denied a fair trial, and the
public is denied a belief in the integrity of our justice system.”).
78. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 33 (1962) (maintaining that
perceived legitimacy of judiciary allows it to invalidate majoritarian will). See generally THE
FEDERALIST NO. 78 (Alexander Hamilton) (stating that judiciary is weakest of three branches of
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The importance of protecting the integrity of the judicial system is so great that
false statements given under oath are punishable even when the government
exceeded its constitutional powers in demanding that the statements be made.79
If civil perjury continues to spread and corrupt the fundamental truth-seeking
process with impunity, the ultimate victims will be the legitimacy of the judicial
system and the rule of law. Thus, the judicial branch has a genuine interest in
addressing the harm that perjured testimony causes to the civil judicial system.
The MCPA solves the problem of limited resources by utilizing private
attorneys, at no cost to the government, to protect the legitimacy of the civil
judicial system.
C.
The Model Rules of Professional Conduct
Attorneys are ethically prohibited from offering testimony they “know” to
be false80 and may refuse to offer evidence they “believe” to be false.81 These
ethical constraints are largely ineffective at preventing perjury, however, because
lawyers have devised ingenious ways of interviewing and preparing clients and
witnesses so as to avoid “knowingly” presenting false testimony or evidence.82 If
the client confesses his guilt to his attorney, the attorney will be ethically
precluded from permitting the client to testify to an alibi the attorney knows is
untruthful.83 If the attorney cannot dissuade his client from giving perjurious
testimony, the attorney must withdraw from representation84 or disclose the
perjury to the tribunal.85 These ethical requirements create potential conflicts
government); Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787 (2005)
(examining legitimacy of Constitution and judiciary as legal, sociological, and moral concepts).
79. See, e.g., Bryson v. United States, 396 U.S. 64, 72 (1969) (stating that citizen has no right to lie
when answering government’s improperly asked question).
80. MODEL RULES OF PROF’L CONDUCT R. 3.3(a)(4) (2002); MODEL CODE OF PROF’L
RESPONSIBILITY DR 7-102(A)(4) (1991).
81. MODEL RULES OF PROF’L CONDUCT R. 3.3(c) (2002); see also Erin K. Jaskot & Christopher
J. Mulligan, Witness Testimony and the Knowledge Requirement: An Atypical Approach to Defining
Knowledge and Its Effect on the Lawyer as an Officer of the Court, 17 GEO. J. LEGAL ETHICS 845, 84647, 850, 858-59 (2004) (providing detailed discussion of confusion caused by divergent state standards
“regarding what specific evidence an attorney must possess to ‘know’ that testimony is false”).
82. See Easton, supra note 18, at 466 (describing “ethical restriction loophole” of consciously
avoiding acquirement of knowledge that may interfere with using certain strategies to present client’s
case). See generally David Luban, Contrived Ignorance, 87 GEO. L.J. 957, 959-60 (1999) (discussing
whether attorney’s “willful ignorance” should be equivalent to “knowingly” and troubles with
amending ethical rules of law to reflect such).
83. See MODEL RULES OF PROF’L CONDUCT R. 3.3(a)(4) (2002) (providing that lawyer should
not “offer evidence that the lawyer knows to be false”); MODEL CODE OF PROF’L RESPONSIBILITY DR
7-102(A)(4) (1991) (stating that lawyer should not “[k]nowingly use perjured testimony”).
84. MODEL RULES OF PROF’L CONDUCT R. 1.16(a)(1) (2002). But see Norman Lefstein, Client
Perjury in Criminal Cases: Still in Search of an Answer, 1 GEO. J. LEGAL ETHICS 521, 526 (1988)
(criticizing withdrawal option as simply passing on ethical dilemma to another attorney).
85. Nix v. Whiteside, 475 U.S. 157, 168 (1986); MODEL RULES OF PROF’L CONDUCT R. 3.3 (2002);
see also Brian Slipakoff & Roshini Thayaparan, Note, The Criminal Defense Attorney Facing
Prospective Client Perjury, 15 GEO. J. LEGAL ETHICS 935, 948-53 (2002) (discussing options available
to attorney, including persuading client to not take stand, withdrawal, disclosure, doing nothing, and
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with the attorney’s ethical obligation to keep her client’s confidences,86 as well as
the defendant’s constitutional right to take the stand and testify in his own
defense87 and to have the effective assistance of counsel.88
To avoid this dilemma, some criminal defense attorneys employ the “[d]on’t
ask, don’t tell” strategy where the client is asked specific questions and
instructed to only answer those questions.89 In this way, the attorney can prepare
a defense yet avoid client confessions and the danger of “knowing” too much.90
As a result of this “ostrich” approach,91 the attorney is able to put her client on
the stand in his own defense and rely on his testimony in closing arguments.92
Scholars have persuasively argued that, at least in the area of criminal defense,
such practices serve important systemic goals such as preserving the attorneyclient relationship and forcing the government to prove its case.93 While it is not
within the scope of this Article to balance the relative merits of these techniques,
they certainly lead to more perjury.
Unfortunately, these practices are not limited to criminal cases. The
prevalence of contingency fee contracts94 and the dependency of many law firms
allowing client to testify in “narrative manner” where attorney asks no questions and does not rely on
client’s testimony in closing argument).
86. See Monroe H. Freedman, Client Confidences and Client Perjury: Some Unanswered
Questions, 136 U. PA. L. REV. 1939, 1953-54 (1988) (noting ABA’s guidance to lawyers on what to do
when they know client intends to commit perjury to allay ethical concerns); Donald Liskov, Criminal
Defendant Perjury: A Lawyer’s Choice Between Ethics, the Constitution, and the Truth, 28 NEW ENG.
L. REV. 881, 885 (1994) (noting lawyer’s ethical duty, when there is absolute knowledge that client will
perjure himself, to disclose such to tribunal); Slipakoff & Thayaparan, supra note 85, at 941-55
(discussing ethical concerns underlying situations when attorney believes client may commit perjury,
possible solutions, and potential infringement on client’s rights resulting from solutions).
87. Rock v. Arkansas, 483 U.S. 44, 51 (1987); see also Slipakoff & Thayaparan, supra note 85, at
951 (discussing conflict between attorney’s ethical obligations and client’s constitutional right to
testify). But see Harris v. New York, 401 U.S. 222, 225 (1971) (stating that right to testify does not
include right to commit perjury).
88. See MODEL RULES OF PROF’L CONDUCT R. 3.3 cmt. 2 (2002) (“A lawyer acting as an
advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive
force.”); Freedman, supra note 86, at 1946-50 (discussing cases in which defendant’s Fifth and Sixth
Amendment rights were violated due to improper representation); Liskov, supra note 86, at 887-90
(discussing dilemmas lawyers may face when attempting to provide adequate counsel to client while
still maintaining compliance with Model Rule 3.3); Slipakoff & Thayaparan, supra note 85, at 938-41
(discussing client’s due process rights and Sixth Amendment right to effective assistance of counsel).
89. Luban, supra note 82, at 958.
90. See id. (noting that “[d]on’t ask, don’t tell” strategy enables lawyers to claim “deniability”).
91. Id. at 959, 967-69. Luban describes the “ostrich” approach as the practice of lawyers
consciously avoiding the unpleasant truth about their clients. Id.
92. See Easton, supra note 18, at 465-66 (describing process lawyers employ to avoid having too
much knowledge about truth in order to more zealously advocate for their clients).
93. See, e.g., Luban, supra note 82, at 979 (arguing that willful ignorance allows attorney to put on
“a fundamentally truthful case with a few false details,” whereas duty to investigate suspicions
regarding client’s story might result in yielding “to temptation and refrain[ing] from lying, even where
the lie is morally preferable to the truth”).
94. Regarding the effect of contingency fees on the attorney’s relationship with his client, Judge
George Sharswood stated:
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on repeated representation of large corporate clients have made it financially
profitable for attorneys to remain blissfully ignorant of the truth or falsity of the
testimony they offer at trial.95 For example, some civil litigators explain the
substantive law to clients and witnesses, as well as explaining what facts the
witness might know that would be critical to the case, before asking the witness
to tell her story.96 This practice is not necessarily nefarious. It might help the
witness focus on the important facts97 and prevent the witness from telling a lie
under the mistaken belief that it would help the case.98 At the same time, it also
arms the witness with the legal knowledge she needs to tailor the facts to best fit
the case or, in some instances, to simply exchange the ill-fitting facts for a set
It reduces him from his high position of an officer of the court and a minister of justice, to
that of a party litigating his own claim. Having now a deep personal interest in the event of
the controversy, he will cease to consider himself subject to the ordinary rules of professional
conduct. He is tempted to make success, at all hazards and by all means, the sole end of his
exertions. He becomes blind to the merits of the case, and would find it difficult to persuade
himself, no matter what state of facts might be developed in the progress of the proceedings,
as to the true character of the transaction, that it was his duty to retire from it.
James M. Altman, Considering the A.B.A.’s 1908 Canons of Ethics, 71 FORDHAM L. REV. 2395, 248182 n.456 (2003) (quoting GEORGE SHARSWOOD, AN ESSAY ON LEGAL ETHICS (5th ed. 1884),
reprinted in 32 A.B.A. REP. 1, 161 (1907)). As a test, the American Lawyer once sent a reporter to
thirteen New York City personal injury lawyers, posing as a potential client with a case that could
produce a large contingency fee if the lawyer would aid the client in perjury. Tom Goldstein, Review:
The American Lawyer, 83 COLUM. L. REV. 1351, 1362 (1983) (citing Jane Berentson, Integrity Test:
Five of Thirteen Lawyers Fail, AM. LAW., May 1980, at 15). Five of the lawyers offered to assist the
reporter with the fraud. Id.
95. While not directly involving perjury, In re O.P.M. Leasing Services, Inc. is a fascinating
example of how hard a law firm may strive to remain blissfully ignorant of its client’s fraud when it has
become financially dependent on the client. H. Lowell Brown, The Dilemma of Corporate Counsel
Faced with Client Misconduct: Disclosure of Client Confidences or Constructive Discharge, 44 BUFF. L.
REV. 777, 804 n.96, 819-20 (1996) (citing Robert N. Treiman, Comment, Inter-Lawyer Communication
and the Prevention of Client Fraud: A Look Back at O.P.M., 34 UCLA L. REV. 925, 928-31 (1987)).
O.P.M. was engaged in the leasing of computer equipment. Id. at 819. O.P.M. was also engaged in
numerous and varied fraudulent schemes, including pledging the same collateral multiple times and
concealing the fraud through forgeries. Id. The law firm of Singer, Hutman, Levine & Seeman
prepared the documentation and closed nearly all the fraudulent transactions. Despite numerous red
flags, the law firm continued with its representation. Id. at 820. Even when the firm learned from
O.P.M.’s president of the massive fraud, it kept doing the closings based on the client’s promises that
the fraud had ceased. Eventually, the firm withdrew from representation. Id. O.P.M. then retained a
new firm to continue its fraudulent activities. Brown, supra, at 820-21. When lawyers from the new
firm contacted Singer, Hutman and asked if there was any reason not to represent O.P.M., Singer,
Hutman simply stated that representation had been terminated by mutual agreement. Id. at 820.The
new firm then closed $15 million in fraudulent leases. Id.
96. See John S. Applegate, Witness Preparation, 68 TEX. L. REV. 277, 301-02 (1989) (describing
this practice); see also Brickman, supra note 18, at 845-46 (discussing ethically questionable witness
preparation techniques in asbestos litigation).
97. See Applegate, supra note 96, at 301 (“A lawyer’s explaining the rules so that a witness can
help the lawyer to discover relevant facts is far more effective than a lawyer’s casting about alone in
the witness’s memory for potentially important observations.”).
98. See Nix v. Whiteside, 475 U.S. 157, 179-80 (1986) (Blackmun, J., concurring) (discussing how
explanation of law by attorney to his client encouraged client to testify truthfully).
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better suited for the occasion.99 This practice also ensures that the lawyer is
never put in the position of knowing whether perjury has been committed.100
Where the attorney merely “believes” the testimony is false, financial selfinterest may weigh against withholding the testimony.
The MCPA creates an ethical and financial incentive for the attorney to
warn the client and the witness of possible liability for perjury. Where the
attorney knows that the testimony is false, he would face liability for subornation
of perjury plus additional sanction from the bar.101 Where the attorney merely
believes that the testimony is false, it would be prudent for the attorney to refuse
to put on the testimony. The attorney is obligated to advise his client of the
potential for civil damages under the MCPA if the client commits perjury.102 In
fact, the attorney should advise his client in writing about the potential for civil
liability and criminal punishment if the client gives false testimony in order to
protect himself from claims of legal malpractice brought by clients sued under
the MCPA and subordination of perjury claims under the MCPA. Consequently,
one effect of the MCPA will be to create disincentives for attorneys to hide from
the truth. Also, it will force them to prevent a certain amount of the perjury the
MCPA is designed to expose and punish.
D.
Cross-Examination in the Age of Experts
Professor John Wigmore’s famous declaration that cross-examination is
“the greatest legal engine ever invented for the discovery of truth”103 may still be
true, but the effectiveness of cross-examination has increasing shortcomings in
modern litigation. As society has become more technical and specialized, so have
the subject matters of civil actions and the evidence presented.104 The Federal
Rules of Evidence and, to a more limited extent, the Supreme Court’s decisions
in Daubert v. Merrell Dow Pharmaceuticals, Inc.105 and Kumho Tire Company v.
99. See Applegate, supra note 96, at 301 (citing MONROE H. FREEDMAN, LAWYERS’ ETHICS IN
ADVERSARY SYSTEM 59 (1975)) (noting that discussions of law with prospective witnesses may
lead witnesses to alter their testimony to result in best possible outcome under applicable law).
100. See id. (noting that since Model Code does not require lawyers to verify all information told
them by clients, they may “rely” on this information for forming their cases).
101. Of course, an attorney who knowingly presents false testimony currently faces criminal
punishment as well as sanction by the Bar. See, e.g., In re Attorney Discipline Matter, 98 F.3d 1082,
1088-89 (8th Cir. 1996) (discussing disbarment of attorney through disciplinary hearing after acquittal
of subornation of perjury). Nevertheless, the MCPA would make it more likely that the action of the
attorney would be discovered, because it would provide a vehicle for those with knowledge of the
subornation to expose it.
102. See MODEL RULE OF PROF’L CONDUCT R. 1.2(d) (2002) (“[A] lawyer may discuss the legal
consequences of any proposed course of conduct with a client and may counsel or assist a client to
make a good faith effort to determine the validity, scope, meaning or application of the law.”).
103. 5 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1367 (Chadbourn rev. ed.
1974).
104. Expert locating services and reference books offer experts in hundreds of fields ranging
from accounting to water park safety. See, e.g., Expertlaw, http://www.expertlaw.com (last visited Jan.
3, 2007) (offering hundreds of categories of experts).
105. 509 U.S. 579 (1993).
AN
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Carmichael106 have expanded the permissible scope and breadth of expert
testimony.107 Expert testimony is not limited to complicated litigation involving
sophisticated products, medical malpractice, and patent infringement cases, but
pervades even the simplest slip-and-fall108 and automobile accident personal
injury cases.109 Experts from every conceivable field are increasingly called on to
“assist the trier of fact to understand the evidence or to determine a fact in
issue.”110
Expert testimony is often the single most important evidence in a civil suit,
and under the Federal Rules of Evidence, an expert can offer opinions as to the
ultimate issue to be decided by the trier of fact111 without first disclosing the
underlying facts and data on which the opinions are based.112 The expert’s
opinions may be based on facts and data not admissible in evidence as long as
they are “of a type reasonably relied upon by experts in the [applicable] field.”113
The facts and data on which the expert’s opinions are based need not be
disclosed to the jury.114 This leaves the jury with little basis on which to evaluate
106. 526 U.S. 137 (1999).
107. In Daubert, the Court abandoned the test of Frye v. United States, 293 F. 1013 (D.C. Cir.
1923), which required that scientific evidence was admissible only if it was generally accepted in the
expert’s field, and adopted a more flexible inquiry focusing on the reliability and validity of the
scientific evidence. 509 U.S. at 589-92. Daubert also charged the trial judge with the responsibility of
serving as a “gatekeeper,” screening expert testimony to ensure that the proposed testimony is
supported by reliable reasoning and methodology. Id. at 589-92, 597. In Kumho, the Court held that
the Daubert gatekeeping function applies to all expert testimony, including testimony based on
“technical” or “other specialized knowledge.” 526 U.S. at 141.
108. For example, on his website, safety expert Jay W. Preston, CSP, PE, describes an ongoing
“controversy” among slip-and-fall experts regarding the proper device for measuring the relative slip
resistance of surfaces. Slip Testing, http://www.safetybiz.com/Sliptest.htm (last visited Feb. 18, 2007).
Apparently, the Brungraber Mark I, the Brungraber Mark II, the English XL Variable Incidence
Tribometer, drag sled style horizontal pull slipmeters, including the ASTM C-1028 “50# Monster,” and
pendulum-styled devices all have their respective advocates. Id. Whatever the merits of these various
devices and the experts’ use of them, this example illustrates how even the simplest case has the
potential for complicated and conflicting expert testimony.
109. The TASA Group urges attorneys to think outside the box when considering their expert
witness needs. The Tasa Group Expertise Directory: Thinking Outside of the Box,
http://www.tasanet.com/tasagroup_outsidethebox.cfm?menu=1 (last visited Feb. 18, 2007). As an
example of how a civil litigator might utilize experts, it offers the following scenario:
Your client was injured in an auto accident on a wet highway at night in the winter. In
addition to experts in general categories like Accident Reconstruction and Automotive
Design, we can put you in touch with experts in fields like these: Metallurgy, Headlight
Analysis, Lighting, Signage, Highway Design, Automotive Design, Brakes, Economic Loss,
Biomechanics, Visual Perception, Air Bags, Passenger Restraints, Meteorology, Glass
Fracture Analysis, Vocational Rehabilitation, and Emergency Medical Treatment, etc.
Id.
110. FED. R. EVID. 702.
111. FED. R. EVID. 704.
112. FED. R. EVID. 703.
113. Id.
114. Id.
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the expert’s opinions, other than her demeanor on the stand and her
credentials.115
While experts are subject to the same oath to tell the truth116 and the
possibility of criminal prosecution if they commit perjury as other witnesses, the
market for expert witnesses creates incentives for exaggeration,
misrepresentation, and outright fraud that are seldom present with other
nonparty witnesses.117 Fact witnesses are asked or compelled to testify because a
whim of fate has placed them in a position to know relevant information relating
to the litigation. They often do not want to be involved in the dispute and only
reluctantly testify when compelled by a court-issued subpoena.
On the other hand, many experts aggressively seek out litigation and earn
large fees for their services.118 One analyst conducted a methodical “Chicago
school” economic analysis of the market factors influencing professional expert
witnesses and reached some disturbing conclusions.119 He concluded that in our
adversarial system, lawyers retain experts not to “achieve an ‘accurate’ outcome
but rather to be effective in achieving an outcome favorable to the client.”120
Professional expert witnesses “want to be repeat players, and in order to be
repeat players experts must be ‘effective.’”121
The most effective expert is well credentialed and willing and able to
massage and recast the facts in a way that allows the expert to offer an opinion
consistent with the lawyer’s theory of liability or damages.122 The expert’s ability
to look and sound good on the witness stand and to conceal his bias is
important.123 Nevertheless, this is secondary to the willingness of the expert to
offer an opinion that supports the theory of the case and stick to it on crossexamination.124 Favorable experts are often the difference between having a case
dismissed on a summary judgment motion and achieving a substantial
115. See Harrison, supra note 17, at 270-71 (noting that expert’s credentials may divert jurors
from “substantive testimony” and lead jurors to evaluate highly credentialed witness’s testimony less
strictly); Sanja Kutnjak Ivkovic & Valerie P. Hans, Jurors’ Evaluations of Expert Testimony: Judging
the Messenger and the Message, 28 LAW & SOC. INQUIRY 441, 445-59 (2003) (concluding, after
interviewing fifty-five jurors in seven civil trials, that jurors focus on the “messenger,” as well as the
“message”).
116. FED. R. EVID. 603. Scientific experts are also less likely to feel religiously bound to their
oath to tell the truth than lay witnesses because, as surveys have shown, they are less likely to believe
in God. See supra note 39 for more information on surveys of scientists regarding their beliefs in God.
117. See Harrison, supra note 17, at 268-69 (noting how expert witnesses’ work may become
“tainted” in effort to remain consistent with testimony).
118. See, e.g., Chaulk v. Volkswagen of Am., Inc., 808 F.2d 639, 644 (7th Cir. 1986) (Posner, J.,
dissenting) (describing plaintiff’s experts as “mere paid advocates or partisans” making career out of
testifying for plaintiffs in automobile accident cases in which vehicle door may have opened (quoting
Keegan v. Minneapolis & St. Louis R.R., 78 N.W. 965, 966 (1899))).
119. Harrison, supra note 17, at 267-69.
120. Id. at 267.
121. Id. at 274.
122. Id. at 275.
123. Id. at 274-75.
124. Harrison, supra note 17, at 272-75.
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settlement.125 The accuracy, integrity, and reliable methodology that lead to
useful theories in the real world are secondary to credentials, appearance, and
advocacy.126 In short, market forces cause expert witnesses to abandon the
objectivity, scientific methodology, and rigorous standards demanded by their
fields of expertise outside the courtroom.127
These dangers are some of the reasons behind the searching gatekeeper role
imposed on trial court judges to determine if the expert’s opinions and the basis
for those opinions are sufficiently reliable and valid to allow the expert to testify
before the jury.128 The problem confronting the courts is very similar to the
problem confronting attorneys on cross-examination and is susceptible to the
same shortcomings. Judges are almost always untrained in the expert’s given
field and are therefore ill-equipped to evaluate the reliability and validity of the
expert.129 The Ninth Circuit openly discussed these difficulties while considering
Daubert on remand: “[T]herefore, though we are largely untrained in science
and certainly no match for any of the witnesses whose testimony we are
reviewing, it is our responsibility to determine whether those experts’ proposed
testimony amounts to ‘scientific knowledge,’ constitutes ‘good science,’ and was
‘derived by the scientific method.’”130
Furthermore, the attorney’s task on cross-examination is hampered because
the jury may not be provided with all the facts and data that the expert relied on
in reaching his conclusions and that the court considered in its gatekeeping
role.131 Hearsay and other evidence deemed too unreliable to be admissible may
have been critical to the expert’s opinion, yet may never be disclosed to the
jury.132 In this foundational vacuum, it is unrealistic to think that even a skilled
cross-examiner can effectively reveal whether the expert’s testimony rests on the
125. Id. at 275.
126. See id. at 274-75 (noting how factors such as personality and appearance are critical to
effectiveness of expert witness).
127. See id. at 268-69 (noting that prospective expert witnesses may deviate from research norms
in their field to support testimony they will be giving in court).
128. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999) (stating that gatekeeping
function applies to all expert testimony because of wide latitude granted to experts to testify as to
opinions).
129. Austin v. Am. Ass’n of Neurological Surgeons, 253 F.3d 967, 972-73 (7th Cir. 2001); see also
Michael Gottesman, From Barefoot to Daubert to Joiner: Triple Play or Double Error?, 40 ARIZ. L.
REV. 753, 758-60, 760 n.33 (1998) (articulating numerous reasons why trial court judges are unlikely to
reach proper conclusions as to reliability of proposed expert testimony, including their lack of
scientific training, time constraints, and procedural limitations).
130. Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1316 (9th Cir. 1995); see also Justin P.
Murphy, Note, Expert Witnesses at Trial: Where Are the Ethics?, 14 GEO. J. LEGAL ETHICS 217, 226,
236, 239 (2000) (discussing difficulties confronting courts and lawyers in evaluating expert testimony
and proposing creation of permanent organization to provide courts with experts to assist them in their
gatekeeping function).
131. L. Timothy Perrin, Expert Witness Testimony: Back to the Future, 29 U. RICH. L. REV. 1389,
1436 (1995). Professor Perrin explains how the cross-examiner who seeks to expose the unreliability of
hearsay and other otherwise inadmissible evidence relied on by the expert risks the possibility that the
jury will ignore a limiting instruction and consider this evidence in reaching its verdict. Id. at 1437.
132. FED. R. EVID. 703.
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brick and mortar of the scientific process or is merely a polished facade
temporarily supported by hearsay and conjecture and intended to last no longer
than present performance requires. Nevertheless, triers of fact frequently give
great weight to expert testimony.133
Effective cross-examination is further hindered because, unlike most parties
to a lawsuit, many expert witnesses are veteran participants in the civil litigation
process.134 These experts may have testified dozens of times in depositions and at
trials. They have an intricate and sophisticated understanding of the litigation
process and of the evidentiary and procedural rules. The experts may have more
litigation experience than the attorney cross-examining them, and presumably
they have a greater knowledge of the subject matter of the expert testimony.135
Unlike lay witnesses, these professional witnesses are unlikely to be intimidated
or controlled by the cross-examiner.136 Under these circumstances, it is unlikely
that cross-examination will reliably reveal the truth to a trier of fact already
overwhelmed by a flood of unfamiliar legal and scientific terms and principles.
The MCPA may not directly facilitate the process of effective expert
witness cross-examination. It will, however, create financial incentives for expert
testimony not to stray too far from the scientific principles that experts adhere to
in the application of their expertise to nonlegal endeavors. The MCPA provides
that a finding of liability “shall be admissible evidence to impeach a witness to
the same extent as a conviction of a crime involving dishonesty or false statement
under Rule 609(a)(2) of the Federal Rules of Evidence.”137 Few attorneys would
be willing to rest their case on the testimony of an expert if they knew the jury
would learn it had been proven that the expert lied in another case. This
provision, more than the potential civil penalty, should greatly deter perjury by
experts who earn their livelihood by testifying.
III. PUBLIC POLICY CONCERNS IMPLICATED BY A CIVIL CAUSE OF ACTION FOR
PERJURY
Centuries of jurisprudence denying tort claims for perjury uniformly rest on
two pillars of public policy. First, granting immunity to witnesses encourages
them to speak freely without fear of civil liability.138 Second, permitting claims
for perjury would undermine the finality of judgments and result in relitigation
133. Perrin, supra note 131, at 1395.
134. Id. at 1434 (providing detailed analysis of ethical, practical, and procedural difficulties
expert witnesses create for judges, lawyers, and jurors).
135. Id. at 1436.
136. Id. at 1436-37.
137. See infra Part V.A for the full text of MCPA § 0005.
138. Harlow v. Carroll, 6 App. D.C. 128, 135-37 (D.C. Cir. 1895); Chambliss v. Blau, 28 So. 602,
603 (Ala. 1900); Buschbaum v. Heriot, 63 S.E. 645, 647 (Ga. App. 1909); Calkins v. Sumner, 13 Wis.
193, 197 (1860); Damport v. Sympson, 78 Eng. Rep. 769 (K.B. 1596); Cutler v. Dixon, 76 Eng. Rep. 886
(K.B. 1585).
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by parties dissatisfied by the outcome in the first trial.139 When these policy
rationales are closely examined, however, it is clear that the first cannot justify
barring a civil perjury claim and the finality concerns of the second can be
managed by allowing an MCPA claim to redress only the harm done to the
judicial system, rather than any injury to the litigant adversely affected by the
perjury.
A. A Civil Cause of Action for Perjury Would Not Unduly Constrain Witness
Testimony
Immunity was developed as a necessary protection against the chilling effect
common law defamation suits would have on a witness’s candor because of the
strict liability character of the claim.140 While English courts granted witnesses an
absolute privilege even as to malicious and immaterial statements,141 many
American jurisdictions conditioned the privilege by requiring that the witness’s
statements have some relation to the proceedings.142 The rationale for the
privilege was explained by one court as follows:
It is not simply a matter between individuals. It concerns the
administration of justice. The witness speaks in the hearing and under
the control of the court, is compelled to speak, with no right to decide
what is material and what is immaterial, and he should not be subject
to the possibility of an action to his words.143
The need for this witness privilege regarding defamation can only be fully
appreciated by examination of the essential elements of a common law cause of
action for defamation. At common law, to establish a cause of action for
defamation the plaintiff had to prove “(1) defendant’s publication to a third
person (2) of defamatory material (3) of and concerning the plaintiff.”144 As long
as the publication was defamatory, meaning that it would diminish the esteem in
which the plaintiff was held, the statement was presumed to be false, the
defendant was presumed to have acted with malice, and the plaintiff was
139. E.g., Pratt v. Payne, 794 N.E.2d 723, 725 (Ohio Ct. App. 2003) (discussing equal importance
of finality of litigation and freedom to testify); Dexter v. Spokane County Health Dist., 884 P.2d 1353,
1355 (Wash. Ct. App. 1994) (noting that if cause of action for perjury were permitted, “many cases
would be tried at least twice”); see also Alford, supra note 19, at 1265-66 (discussing public interest in
finality of judgment as one of four justifications for denying tort claims for perjury); Eagle, supra note
19, at 368-69 (arguing for limited perjury tort action while acknowledging public interest in “disposing
of litigation”).
140. Chambliss, 28 So. at 603; Barnes v. McCrate, 32 Me. 442, 446-47 (1851); Calkins, 13 Wis. at
197-98.
141. See Buschbaum, 63 S.E. at 647 (discussing English rule that grants absolute privilege even if
testimony is false, malicious, and immaterial).
142. See RESTATEMENT (SECOND) OF TORTS § 588 Reporter’s Note (1977) (citing Buschbaum,
63 S.E. at 645; Weil v. Lynds, 185 P. 51, 53 (Kan. 1919); Beggs v. McCrea, 70 N.Y.S. 864, 867 (1901);
Ginsburg v. Halpern, 118 A.2d 201, 202 (Pa. 1955)) (noting that defamatory statement should have
some reference to the subject matter and be in response to a question).
143. Buschbaum, 63 S.E. at 648 (quoting TOWNSHEND ON SLANDER AND LIBEL § 223 (4th ed.
1890)) (additional citations omitted).
144. Dobbs, supra note 22, at 1120.
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presumed to have suffered damages.145 In short, defamation was a strict liability
tort for which the defendant could be held liable without fault.146
Absent a privilege, the common law of defamation places a witness in a
precarious situation. Often witnesses are called to testify as to matters that will,
by the very nature of the proceeding, diminish the esteem in which others hold
the subject of the testimony. Accordingly, in most American courts, witnesses
are absolutely privileged to publish defamatory statements as long as the
statements have some relation to the proceedings.147 As an early decision from
the Supreme Judicial Court of Maine explained, a contrary rule would intimidate
witnesses and deter them from disclosure of the whole truth.148 A witness “might
have no means to prove his statements. He may have been robbed while alone.
Should he testify to the fact, in the course of a regular trial of the offender, he
would not be liable for his statement.”149 A contrary rule might induce two forms
of self-censorship: a witness might be reluctant to come forward to testify, and
once on the stand, the witness’s testimony might be distorted by the fear of
subsequent liability for defamation.150
Although courts have often mechanically applied this same rationale when
granting witnesses immunity from civil actions for perjury,151 the same concerns
simply do not apply. Unlike common law defamation, the essential elements of
perjury, whether under a criminal statute or the proposed MCPA, ensure that
witnesses can speak freely and openly without fear they may be subject to
subsequent civil litigation for merely slanderous or false statements. Establishing
a prima facie case of perjury requires proof that the defendant made (1) a false
statement, (2) under oath or equivalent affirmation, (3) as to a material fact, that
(4) the witness did not believe to be true.152 The witness’s testimony need not
even be truthful as long as the witness believes the statements are true.153 In
contrast to common law defamation, where strict liability applies, a witness need
not fear liability for perjury as a consequence of speaking freely, because there is
no liability without fault. Civil immunity for perjury cannot be justified as a
145. Id.
146. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (holding private persons
suing for defamation on matter of public concern must prove that defendant negligently published
false statement); Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 (1967) (holding same as to public
figures); N.Y. Times v. Sullivan, 376 U.S. 254, 279-80 (1964) (holding public officials must prove
knowing or reckless falsehood).
147. See, e.g., RESTATEMENT (SECOND) OF TORTS § 588 (1977) (restating rule in black-letter law
and explaining rationale in subsequent comments).
148. Barnes v. McCrate, 32 Me. 442, 446-47 (1851).
149. Id. at 447.
150. Briscoe v. LaHue, 460 U.S. 325, 341-43 (1983).
151. See, e.g., Heavrin v. Nelson, 384 F.3d 199, 202 n.2, 202-03 (6th Cir. 2004) (noting that witness
immunity is most commonly applied to defamation claims, yet applying witness immunity to perjury
claim without considering important differences between claims).
152. 18 U.S.C. §§ 1621, 1623 (2000); MODEL PENAL CODE § 241.1 (1980).
153. See Bronston v. United States, 409 U.S. 352, 359 (1973) (stating that under 18 U.S.C. § 1621
(1970), state of mind of witness is relevant to extent that it bears on whether he does not believe his
answer to be true).
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necessary shield to protect the candid witnesses from strict liability. The honest
witness is effectively immunized against a perjury claim by her subjective belief
that her words are true. Additional immunity serves not as a shield but as a
sword with which a dishonest witness can carve up the truth with impunity.154
Whatever merit there is to the claim that civil liability for perjury might
discourage a reluctant witness from coming forward to testify in civil matters or
inhibit the substance of a timid witness’s testimony, those arguments can hardly
be advanced regarding the parties in the litigation. Inspired by the multitude of
powerful motives that drive litigation, financial and otherwise, the parties are
unlikely to be deterred from pursuing and truthfully testifying in what they
presumptively believe to be meritorious litigation. To the extent that the
consequences of a civil perjury action have a deterrent effect on less meritorious
litigation, few tears should be shed by either the judicial system or the public that
ultimately pays for the costs of such litigation. Such a loss is no loss at all.
Similarly, well-compensated expert witnesses are not likely to be deterred
from offering truthful uninhibited testimony by the possibility of civil liability for
perjury. For this very reason, most courts that have considered the issue have
refused to extend witness immunity to bar claims of professional negligence
brought by the party who retained the expert witness.155 Hired experts need not
be simultaneously coaxed and coddled in the same way as an innocent bystander
who—due to the whims of providence—happened to observe a tragic event or
have knowledge of a disputed issue and who is compelled to testify under
subpoena.156 Rather, as one court observed:
154. See Boyd Mangrum, Retaliatory Lawsuits and Texas’s Judicial Proceedings Privilege, 22
REV. LITIG. 541, 556 (2003) (criticizing absolute nature of Texas’s judicial proceeding privilege where
its application protects those who “lie, cheat and steal”).
155. See, e.g., Marrogi v. Howard, 282 F.3d 854, 854-55 (5th Cir. 2002) (reversing dismissal of
claim against expert witnesses based on Supreme Court of Louisiana’s answer to certified question
that witness immunity does not bar claim by party who retained expert); Mattco Forge, Inc. v. Arthur
Young & Co., 6 Cal. Rptr. 2d 781, 788 (Cal. Ct. App. 1992) (declining to extend immunity and noting
that immunity would discourage rather than encourage truthful expert testimony); Pollock v. Panjabi,
781 A.2d 518, 529 (Conn. Super. Ct. 2000) (declining to extend immunity to expert witnesses because
policy for freedom to speak not implicated); Murphy v. A.A. Mathews, 841 S.W.2d 671, 680 (Mo.
1992) (en banc) (declining to extend immunity to privately retained professionals who negligently
provide “pretrial litigation support services”); Levine v. Wiss & Co., 478 A.2d 397, 402, 407-08 (N.J.
1984) (declining to extend immunity to arbitrators who were appointed in an accountant’s role by
court because doing so would go beyond policy reasons for immunity); LLMD of Mich., Inc. v.
Jackson-Cross Co., 740 A.2d 186, 191 (Pa. 1999) (noting that party should not be able to sue witness if
unsatisfied with result but declining to extend immunity in cases of negligence); James v. Brown, 637
S.W.2d 914, 917 (Tex. 1982) (holding plaintiff could not claim defamation based on misdiagnoses
communicated to court but was not prevented from recovering for misdiagnoses on other grounds).
But see Bruce v. Byrne-Stevens & Assocs. Eng’rs, Inc., 776 P.2d 666, 667, 669, 673-74 (Wash. 1989) (en
banc) (holding witness immunity and policy of ensuring frank and objective testimony barred
negligence suit against expert retained by plaintiff in prior litigation).
156. See Randall K. Hanson, Witness Immunity Under Attack: Disarming “Hired Guns,” 31
WAKE FOREST L. REV. 497, 499-508, 511 (1996) (discussing relevant cases and concluding that paid
expert litigants should not be immune from claims brought by party who retained them because they
are not forced to testify, they have been paid for their services, and their services should be
competent).
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Due to the hired expert witness’ function, we do not believe that the
policy of ensuring frank and objective testimony is furthered by
granting immunity. In most circumstances, these experts possess no
independent factual knowledge concerning the litigation. Instead, they
are usually retained to assist a party in preparing and presenting its
best case in exchange for a fee. In practice, they function as
professionals selling their expert services rather than as an unbiased
court servant. Thus, immunizing an expert retained and compensated
for providing litigation support services does not advance this
underlying policy.157
Outside the context of litigation, these professionals have provided their
services subject to liability if they fail to exercise the care, skill, and proficiency
of prudent professionals in their field.158 There is no reason to think that they
will refuse to pursue expert witness employment simply because they are held to
the same standard of care they must exercise in other areas of their professional
practice.159 Rather than fear that expert witnesses will be inhibited by the
potential of a civil penalty for perjury, we should hope that potential liability for
perjury will rein in experts who offer less than candid and objective testimony in
order to advance the cause of the highest bidder.160 The experts dissuaded by
civil perjury liability are precisely those the judicial system should desire to
dissuade.
B. Balancing the Interests in Protecting the Integrity of the Civil System with the
Finality of Judgments and Preventing a Multiplicity of Suits
The courts that have addressed the issues of finality and efficiency have
consistently feared that, in the absence of witness immunity for perjury, there
would likely be successive and potentially never-ending litigation. Finality
emphasizes to the litigants that the trial is the “main event.”161 The courts have
emphasized that the place to prove the truth or falsity of a witness’s testimony is
at trial, and that dissatisfied parties will not be permitted to relitigate the
truthfulness of a witness’s testimony in a collateral proceeding.162 Liberal
157. Murphy, 841 S.W.2d at 681.
158. Id.; see also Boyes-Bogie v. Horvitz, No. 99-1868F, 2001 Mass. Super. LEXIS 582, at *11-12
(Mass. Dist. Ct. Oct. 31, 2001) (noting that potential liability for negligence would require that expert
witnesses provide services on par with other members of their profession). But see Bruce, 776 P.2d at
666, 669, 673-74 (holding that witness immunity and policy of ensuring frank and objective testimony
barred negligence suit against expert retained by plaintiff in prior litigation).
159. Murphy, 841 S.W.2d at 681.
160. Id.; see also Brickman, supra note 17, at 1790-91 (maintaining that contingency fees result in
exorbitant rates of return, which in turn result in financial incentives that have had corrupting effect on
expert witnesses); Harrison, supra note 17, at 259 (arguing that tort and contract immunity for expert
witnesses allows them to provide partisan or dishonest testimony because they are not forced to
internalize the social costs of their testimony).
161. E.g., Anderson v. Bessemer City, 470 U.S. 564, 576 (1985) (justifying the clearly erroneous
standard of review for factual findings so that parties can focus energy on trial).
162. E.g., Silberg v. Anderson, 786 P.2d 365, 370 (Cal. 1990) (en banc) (stating that litigants
assume responsibility for complete litigation of their cause during proceeding and generally cannot
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discovery rules are intended to provide the litigants with every opportunity to
gather the evidence necessary to expose lies and reveal the truth.163 The jury’s
role is to sort through conflicting testimony to find the truth, and the parties
must bring forward all the evidence necessary to equip the jury for its task.164
The verdict resolves any factual disputes and is final even if it does not accord
with the ultimate truth.165 If the jury is deceived by perjurious testimony, the
perjurer is subject to criminal prosecution, but the party adversely impacted by
the perjury cannot relitigate his claim or bring suit against the perjurer for
damages.166
Proponents of this argument maintain that if a verdict rendered in the initial
proceeding was subject to a collateral attack in a subsequent civil perjury suit for
damages, the original proceeding would become no more than a warm up or
“trial” run. As one court observed, “‘[C]ontroversies sufficiently intense to erupt
in litigation are not easily capped by a judicial decree. The loser in one forum
will frequently seek another . . . . Absolute immunity is thus necessary to assure
that judges, advocates, and witnesses can perform their respective functions
without harassment or intimidation.’”167 When a party to litigation believes that
the finder of fact ruled against her because of false testimony or evidence by the
opposing party, she is often inclined to bring a new suit claiming that she lost the
original suit because of the other’s perjury. In the absence of immunity, each trial
would be followed by a second trial to see who lied in the first proceeding.168
Despite witness immunity, parties occasionally become so obsessed with the
litigation that they file suit after suit, even though repeated rulings provide that
the truth or falsity of the testimony was resolved in favor of the opposition by the
verdict in the first case and that the issue cannot be relitigated.169 Witness
immunity furthers the goal of finality by ensuring that the parties take full
advantage of their day in court.
attack integrity of evidence after proceedings); Pratt v. Payne, 794 N.E.2d 723, 725 (Ohio Ct. App.
2003) (noting that Ohio follows most jurisdictions and does not allow civil actions against witnesses
who perjure themselves).
163. E.g., Wright v. Fred Hutchinson Cancer Research Ctr., 206 F.R.D. 679, 680 (W.D. Wash.
2002) (noting courts compel nonparties to produce evidence to promote truth, integrity, and fairness).
164. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 440 (1976) (White, J., concurring) (discussing
prosecutorial immunity from claims where prosecutor knew or should have known witness’s testimony
was false).
165. See Silberg, 786 P.2d at 369, 372-73 (emphasizing policy reasons for avoiding additional
litigation even if there is “an occasional ‘unfair’ result”).
166. See id. (recognizing occasional uncompensated real injuries as price of finality).
167. Briscoe v. LaHue, 460 U.S. 325, 335 (1983) (quoting Butz v. Economou, 438 U.S. 478, 512
(1978)) (holding that police officers are immune from suit under 28 U.S.C. § 1983 (1982) for alleged
perjured testimony given during plaintiff’s criminal trial).
168. Dexter v. Spokane County Health Dist., 884 P.2d 1353, 1355 (Wash. Ct. App. 1994).
169. Richardson v. Albertson’s, Inc., No. 00-1215, 2000 U.S. App. LEXIS 23300, at *2, *4 (10th
Cir. Sept. 13, 2000) (imposing double costs and attorneys’ fees as sanctions for frivolous and repetitive
filings pursuant to Federal Rule of Appellate Procedure 38, after plaintiff appealed district court’s
dismissal of his fifth lawsuit, alleging civil action for perjury by defendant in prior litigation arising
from the termination of his employment with defendant).
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These systemic concerns seeking to ensure that trials resolve the disputes
between the parties with finality seem sufficiently well-grounded in policy and
human nature to preclude a purely private cause of action seeking actual
damages for perjury in a prior proceeding. Even so, these public policy
justifications have never been deemed sufficient to preclude a criminal
prosecution for perjury committed in a civil case.170 Similarly, commentators
have occasionally proposed that the problem of perjury is sufficiently harmful
that private tort actions should be allowed despite the potential for endless
litigation.171 These commentators have argued that allowing a common law tort
of perjury would seldom conflict with the doctrines of res judicata or collateral
estoppel.172
Both res judicata and collateral estoppel preserve the finality of judgments
and promote judicial economy by preventing parties to litigation from seeking to
relitigate a claim or issue when they are unhappy with the results of the first
litigation.173 Under res judicata, a final judgment on the merits of an action
disposes of all claims that were or could have been brought in the first action,
precluding parties or their privies from relitigating claims.174 A claim of perjury
does not usually arise from the same transaction or occurrence that gave rise to
the claims in the original suit and would not be barred by the doctrine of res
judicata.175 Under collateral estoppel, any issue of law or fact necessarily decided
by a final judgment cannot be relitigated in a subsequent suit, even if it involves
a different cause of action from the first case.176 Accordingly, only in actions
where the truth or falsity of a witness’s testimony has necessarily been adjudged
by the fact finder should collateral estoppel bar the action.177 Advocates of a
private tort claim for perjury maintain that this would rarely be the case but
concede that a perjury claim should be barred where collateral estoppel
applies.178
170. E.g., Briscoe, 460 U.S. at 344 (following prior absolute immunity rule for witnesses in part
because of availability of criminal sanctions). But see, e.g., United States v. Baugus, 761 F.2d 506, 508
(8th Cir. 1985) (noting that Fifth Amendment guarantee against double jeopardy precludes second
prosecution for perjury based on testimony of defendant in prior criminal case, where jury verdict in
prior trial necessarily decided truth of defendant’s statement at issue in second prosecution).
171. Alford, supra note 19 at 1265-74; Eagle, supra note 19, at 369-76.
172. Alford, supra note 19, at 1265-67; Eagle, supra note 19, at 369-71.
173. JACK H. FRIEDENTHAL ET AL., CIVIL PROCEDURE § 14.1 (4th ed. 2005).
174. San Remo Hotel v. City of San Francisco, 545 U.S. 323, 336 n.16 (2005). See generally
FRIEDENTHAL ET AL., supra note 173, § 14.1 (providing overview of res judicata and collateral
estoppel).
175. Alford, supra note 19, at 1266; Eagle, supra note 19, at 370.
176. See Alford, supra note 19, at 1266-67 (explaining collateral estoppel prevents relitigation of
issues necessary to decision of prior action); Eagle, supra note 19, at 370 (defining collateral estoppel
as doctrine of issue preclusion, which prevents relitigation of issues “fully and fairly considered in the
prior action”).
177. Alford, supra note 19, at 1267; Eagle, supra note 19, at 370-71.
178. See Alford, supra note 19, at 1267 (arguing doctrine of collateral estoppel should preclude
tort action for perjury only when trier of fact in a previous action determined witness committed
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Despite this support, there are reasons for questioning the reliance on res
judicata and collateral estoppel as guiding principles on the issue of finality as it
relates to a private cause of action for perjury. One of the essential elements of a
perjury claim is that the false statement must have been material to the
underlying proceedings.179 The materiality element is satisfied if the false
statement “could have affected the course or outcome of the proceeding.”180
Accordingly, there is reason to believe that in many cases the fact finder did
determine the truthfulness of material testimony alleged to have been perjurious.
Even if the materiality requirement would only occasionally bar perjury claims,
the claims barred would necessarily be the ones where the perjury was calculated
to cause the greatest harm because it involved the issues of fact most critical to
the resolution of the case. Barring such integral and damaging claims while
allowing all claims based on less critical and effectual perjury seems to “stand
Lady Justice on Her head.”181
Despite proposals for a private cause of action for perjury, the decision of
the Court of Civil Appeals of Oklahoma in Copeland v. Anderson182 appears to
be the only decision by any appellate court183 allowing a tort action for perjury.
The Oklahoma Supreme Court ultimately overruled that decision in Cooper v.
Parker-Hughey.184 Both Copeland and Cooper illustrate the problem with a
private tort cause of action for perjury.
In Copeland, the husband allegedly concealed information in a divorce
action, testifying falsely about the possible acquisition of an interest in a
McDonald’s franchise. The wife alleged that she would have been awarded a
larger property settlement in the divorce if the husband had testified
truthfully.185 The court discussed the ancient line of English and American cases
refusing to recognize a tort action for perjury and the by-now-familiar public
perjury); Eagle, supra note 19, at 370-71 (arguing collateral estoppel should bar tort for perjury only in
rare instances where fact finder in prior action specifically determined witness’s veracity).
179. MODEL PENAL CODE § 241.1(1)-(2) (1980).
180. MODEL PENAL CODE § 241.1(2) (1980).
181. See In re King, 68 B.R. 569, 573 (Bankr. D. Minn. 1986) (refusing to allow form to prevail
over substance where plaintiff was entitled to judgment but alleged wrong code section).
182. 707 P.2d 560 (Okla. Civ. App. 1985), overruled by Cooper v. Parker-Hughey, 894 P.2d 1096,
1097 (Okla. 1995).
183. The Copeland court sought to support its holding by relying on what it called an
“outstanding opinion” by the Ohio Supreme Court in Kintz v. Harriger, 124 N.E. 168 (Ohio 1919),
purporting to allow “a civil action for damages resulting from perjured testimony . . . before a grand
jury.” Copeland, 707 P.2d at 566. In fact, the Kintz court did not hold that Ohio law permitted a cause
of action for perjury, but only that a cause of action for malicious prosecution could be based on
allegations that the defendant perjured himself before the grand jury in order to have charges
wrongfully brought against the plaintiff. Kintz, 124 N.E. at 171. The Copeland court also failed to
mention that Taplin-Rice-Clerkin Co. v. Hower, 177 N.E. 203, 203-04 (Ohio 1931), expressly overruled
Kintz when the court refused to allow the plaintiff to base his malicious prosecution case on privileged
grand jury testimony by a member of the defendant’s company. See Copeland, 707 P.2d at 566-567
(failing to note Kintz was no longer good law).
184. 894 P.2d 1096, 1097, 1099 (Okla. 1995).
185. Copeland, 707 P.2d at 562.
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policy rationales supporting those decisions.186 One by one, the court attacked
and ridiculed these public policy rationales as “apocryphal if not spurious” in
nature.187 The court dismissed the argument that allowing such a cause of action
would result in a flood of relitigation, pointing to the fact that Maine’s statutory
cause of action for perjury188 had been seldom used over its century of
existence.189 Moreover, the court opined that if indeed a flood of such litigation
did result, it would reflect the need for such relief, and that would be a reason for
permitting rather than opposing civil redress for perjury.190
Despite its determination that Oklahoma law recognized the tort of perjury,
the Copeland court affirmed the trial court’s dismissal of the suit, finding that the
alleged perjury was not material because the possible future acquisition of the
restaurant was too speculative to support an additional marital property
award.191 The court further criticized the wife’s failure to take advantage of
pretrial discovery to gather and present evidence of the husband’s endeavors to
acquire a “Big Mac dispensary” in advance of the divorce trial.192 Therefore, the
court ruled that her complaint necessarily required the relitigation of the divorce
“decree that has long since become res judicata.”193 Apparently, the court’s lack
of concern that a private cause of action for perjury would result in a “flood of
litigation”194 resulted from its willingness to embrace a broad application of the
doctrine of res judicata to dismiss such claims when raised.195
Similarly, the problem of relitigation is readily apparent in Cooper, wherein
the Oklahoma Supreme Court overruled Copeland and held that Oklahoma
does not recognize a civil action for perjury.196 In Cooper, the convicted rapist of
an eight-year-old girl brought a tortious perjury suit against a medical doctor
who had testified as an expert witness for the state at the plaintiff’s rape trial.197
Cooper’s three successive lawsuits alleged that the doctor and others presented
perjurious testimony at Cooper’s rape trial.198 The first suit, brought in federal
court and styled as a 42 U.S.C. § 1983 civil rights claim, was dismissed on the
grounds that the doctor was absolutely immune from liability even if her
testimony was perjured.199 Undeterred, Cooper filed a second action in state
186. Id. at 564-68.
187. Id. at 567-68.
188. ME. REV. STAT. ANN. tit. 14, § 870 (2003).
189. Copeland, 707 P.2d at 568.
190. Id.
191. Id. at 568, 569, 571.
192. Id. at 570.
193. Id.
194. Copeland, 707 P.2d at 568.
195. See id. at 570 (holding divorce decree is res judicata regarding marital property because wife
“could have, and certainly should have” garnered evidence of her husband’s endeavors before divorce
decree).
196. Cooper v. Parker-Hughey, 894 P.2d 1096, 1099-1100 (Okla. 1995).
197. Id. at 1097.
198. Id.
199. Id.
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court based on the same allegations of perjury.200 The state court dismissed this
suit for lack of personal jurisdiction because Cooper never managed to serve the
doctor with process.201 Cooper then appealed the trial court’s dismissal, but the
appeal was dismissed for other jurisdictional defects.202 A model of
determination, Cooper then filed another action in state court containing the
same allegations as in his prior suits, and managed to effectuate valid service on
the doctor.203 Nevertheless, the trial court dismissed the action for a number of
reasons, among them that the doctor was absolutely immune from any action
based on her testimony in the criminal proceeding.204
The Oklahoma Supreme Court affirmed the dismissal on the basis of
witness immunity but also took the opportunity to reverse Copeland’s
recognition of a tort claim for perjury.205 The court noted that only Maine
recognized a civil cause of action for perjury and that it was a creation of statute,
not common law.206 The court reiterated and adopted the strong public policy
rationales supporting the rule, including “the need for finality in judgments” and,
as Cooper himself demonstrated, the “possibility of multiplicity of suits by
parties dissatisfied by the outcome of trials.”207
As this brief experiment with a tort action for perjury demonstrated, the
problem of successive litigation and undermining of the finality of judgments is
an undeniable danger inherent in allowing a private tort claim for perjury.208
Parties to the litigation must not be permitted to collaterally attack a final
judgment entered in a prior proceeding by bringing a subsequent tort claim
seeking compensation for the effects the alleged perjury had on their claim.
Criminal perjury statutes primarily punish “the wrong done to the courts
and the administration of justice . . . not . . . the effect that any particular
testimony might have on the outcome of any given trial.”209 Similarly, the MCPA
does not seek to directly redress the private harm caused by perjury in a prior
proceeding. Rather it focuses on the more fundamental harm perjury imposes on
the truth-seeking function and integrity of the judicial system. The prior
judgment is not disturbed by a finding of liability against the defendant in the
MCPA trial. The perjury is exposed and the perjurer is penalized, but the prior
judgment remains sacrosanct. This method ensures that the parties to the
200. Id.
201. Cooper, 894 P.2d at 1097.
202. Id.
203. Id.
204. Id. at 1098.
205. Id. at 1099.
206. Cooper, 894 P.2d at 1100-01.
207. Id. at 1101.
208. See id. at 1100 (listing successive litigation and undermining finality of judgments as reasons
for rule, which court adopts).
209. United States v. Manfredonia, 414 F.2d 760, 764 (2d Cir. 1969); see also United States v.
Mandujano, 425 U.S. 564, 576 (1976) (“Perjured testimony is an obvious and flagrant affront to the
basic concepts of judicial proceedings.”); United States v. Markiewicz, 978 F.2d 786, 802 (2d Cir. 1992)
(pointing out victim of perjury is court itself).
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litigation will seek to bring forth their best cases in the original proceeding but
does not allow the perjury, if discovered, to go unpunished.
IV. LESSONS LEARNED FROM MAINE’S STATUTORY TORT ACTION FOR
PERJURY
Maine is the only jurisdiction that recognizes a civil cause of action for
perjury.210 Maine’s civil perjury statute, first enacted in 1864 and never
substantially amended, provides that:
When a judgment has been obtained against a party by the perjury of a
witness introduced at the trial by the adverse party, the injured party
may, within 3 years after such judgment or after final disposition of any
motion for relief from the judgment, bring an action against such
adverse party, or any perjured witness or confederate in the perjury, to
recover the damages sustained by him by reason of such perjury; and
the judgment in the former action is no bar thereto.211
The statute suffers from several inadequacies that have resulted in it being
sparingly utilized over its long but undistinguished existence.212 Out of concern
for finality and because this statute is contrary to common law, the Supreme
Judicial Court of Maine has felt compelled to construe it very strictly indeed.213
Between strict construction and statutory language drafted prior to the adoption
of liberal discovery, the statute suffers from three fatal flaws. The MCPA
corrects each of these flaws.
First, the Maine statute limits claims to those where the perjury was
“introduced at trial.”214 This limitation is not surprising, as the statute was
enacted seventy-six years before adoption of the Federal Rules of Civil
210. Cooper, 894 P.2d at 1100-01; see also ME. REV. STAT. ANN. tit. 14, § 870 (2003) (providing
civil cause of action for perjury).
211. Tit. 14, § 870.
212. There appear to be only six reported appellate level cases applying Maine’s civil perjury
statute, including one the state supreme court heard twice. In none of these cases has the claim been
successfully brought: Lundborg v. Phoenix Leasing, Inc., 91 F.3d 265, 269 (1st Cir. 1996) (affirming
dismissal of perjury count because allegation of perjury involved pleadings and affidavits, not trial
testimony as statute requires); Kraul v. Me. Bonding & Cas. Co., 672 A.2d 1107, 1109 (Me. 1996)
(affirming judgment for defendant because alleged perjury occurred in summary judgment proceeding,
not at trial as statute requires); Spickler v. Greenberg, 586 A.2d 1232, 1233 (Me. 1991) (reversing
summary judgment because issue of material fact existed), Spickler v. Greenberg, 644 A.2d 469, 472
(Me. 1994) (vacating judgment because defendant’s perjury occurred when he was called in plaintiff’s
case-in-chief and, accordingly, adverse party did not introduce it as statute requires); Milner v. Hare,
135 A. 522, 523 (Me. 1926) (sustaining demurrer because plaintiff called defendant to stand in his casein-chief and, accordingly, adverse party did not introduce it as required by statute); Cole v. Chellis, 119
A. 623, 623 (Me. 1923) (affirming dismissal because judgment in underlying case was result of
stipulation, not alleged perjury); Landers v. Smith, 2 A. 463, 464 (Me. 1886) (denying appeal because
plaintiff failed to bring claim within statutory three-year period).
213. Spickler, 644 A.2d at 472.
214. Tit. 14, § 870.
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Procedure215 and similar state procedures that allow for extensive discovery and
summary judgment. The problem with this requirement is that parties and
witnesses often commit perjury during pretrial discovery and this perjured
testimony is used to prevail in dispositive pretrial motions,216 leaving the party
harmed by the perjury without recourse under the statute.
For example, in Kraul v. Maine Bonding & Casualty Co.,217 the plaintiff
suffered serious injury as a result of a diving accident and obtained a default
judgment against the defunct swimming pool manufacturer.218 He then sought to
collect in an action against the manufacturer’s insurance carrier, which had
refused to defend the original suit and maintained that the policy did not
apply.219 The plaintiff’s claim to “reach and apply” the insurance policy and his
claims for breach of contract and negligence as assignees of the manufacturer
were dismissed on summary judgment.220 The plaintiff then brought a statutory
perjury claim, alleging that the insurance company had committed perjury in an
affidavit and deposition submitted in support of the summary judgment
motion.221 The appellate court affirmed the trial court’s dismissal of the statutory
perjury claim because a summary judgment proceeding is not a “trial” and,
therefore, not actionable within the plain terms of the statute.222 The MCPA
addresses this shortcoming by permitting an action for perjury regardless of the
stage of the proceedings in which the perjury occurs.
Second, the Maine statute requires that the perjury on which the claim is
based must have been “introduced at trial by the adverse party.”223 Therefore, if
the plaintiff calls the defendant as a witness at trial and the defendant commits
perjury that results in the plaintiff losing his case, the plaintiff cannot bring a
claim under the Maine statute.224 Even though the defendant committed the
perjury, it was the plaintiff who called the witness that “introduced” the
215. “Under the authority vested by the Rules Enabling Act of 1934, the United States Supreme
Court promulgated the original Federal Rules of Civil Procedure in December 1937 [and they] became
effective in September 1938.” STEVEN BAICKER-MCKEE, WILLIAM M. JANSSEN & JOHN B. CORR, A
STUDENT’S GUIDE TO THE FEDERAL RULES OF CIVIL PROCEDURE 133 (9th ed. 2006) (footnote
omitted).
216. See, e.g., Kraul, 672 A.2d at 1109 (rejecting application of statute against defendant who
allegedly committed perjury in affidavit and deposition offered in support of pretrial motions).
217. 672 A.2d 1107 (Me. 1996).
218. Kraul, 672 A.2d at 1108.
219. Id.
220. Id.
221. Id.
222. Id. at 1109. The case went to trial on plaintiff’s claims, as assignee of the manufacturer, of
implied contract and estoppel. Kraul, 672 A.2d at 1108. The plaintiff maintained that the defendant
committed perjury at trial, but the court held that the trial court did not base its decision on the
alleged perjury. Id. at 1109.
223. ME. REV. STAT. ANN. tit. 14, § 870 (2003).
224. See Spickler v. Greenberg, 644 A.2d 469, 472 (Me. 1994) (dismissing plaintiff’s claim on this
basis although defendant raised issue for first time on appeal); Milner v. Hare, 135 A. 522, 523 (Me.
1926) (sustaining demurrer because party can only invoke statute where adverse party called perjuring
witness).
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testimony at trial.225 This interpretation of the statute seems particularly contrary
to the statutory purpose. Perjurious testimony is most likely to result in an
erroneous judgment where the party with the burden of proof must call the
adverse party to establish some essential element of the case. For example, the
victim of an automobile and pedestrian accident at an intersection may have no
recollection of the event because of her injuries. In such cases, the defendant
may be the only identifiable witness with knowledge of how the accident
happened. In order to prove her case, the plaintiff would be required to call the
defendant as a witness in her case-in-chief. If the defendant perjured himself to
escape liability and the plaintiff can later prove the perjury, it seems strange that
the statute would not allow the plaintiff to bring a claim simply because she
called the defendant as a witness. Because the MCPA views perjury as a wrong
to the judicial system, which party called the witness is not relevant; it is the
wrong to the system that is redressed, not the wrong to the opposing party.
Third, Maine’s statute only allows a claim to be brought by a party against
whom a “judgment has been obtained” in the prior litigation to recover
“damages sustained by him by reason of such perjury.”226 The requirement
under Maine’s statute that the plaintiff must have been the losing party in the
underlying action at first seems consistent with the tort nature of the statute.
After all, if the plaintiff is the prevailing party, then the perjury appears to have
caused no harm to the plaintiff. It may be, however, that in the absence of the
perjury the original case might never have been brought or would have been
dismissed on a pretrial motion. Even though the party has prevailed, he has
incurred additional attorney’s fees, costs, and inconvenience. More importantly,
in such a situation, the perjurer has not been punished for his perjury. The
perjurer has lost his case, but that is not punishment if, in the absence of perjury,
he did not have a viable case. This outcome, while infinitely preferable to the
party profiting from the perjury, often costs the perjurer nothing. If the
underlying claim was not meritorious in the absence of the perjury, the loss of
the suit once the lie is discovered does not result in a loss of anything of
legitimate value to the party relying on the perjury. The party has not been
punished, the affront to the system has not been vindicated, and justice, in both
the utilitarian sense and the deontological sense, has not been done.
The fundamental problem with the Maine statute is that it focuses on
perjury as a private tort rather than a public harm.227 This approach handicaps
the statute by requiring the limitations discussed above. In recognition of this
problem, the MCPA employs a qui tam action to be brought on behalf of the
jurisdiction where the perjury occurred, subjecting the perjurer to a civil penalty,
rather than a private cause of action to recover actual damages that the opposing
party in the underlying litigation may have suffered. While the perjury may or
may not result in harm to the opposing side, it is always an affront to the legal
225. Spickler, 644 A.2d at 472; Milner, 135 A. at 523.
226. Tit. 14, § 870.
227. See id. (granting private party cause of action for perjury).
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system228 and the MCPA addresses this wrong. Since anyone may bring the claim
on behalf of the government, a civil action remains available even when the
perjury is exposed in the underlying case and the party who presented the
perjury did not prevail.
For example, if a personal injury plaintiff testifies that he was confined to
his bed for eight weeks with back injuries following an automobile accident, and
surveillance video shows him bowling six weeks after the accident, the plaintiff’s
perjury may be easily established in the underlying case. If the jury returns a
verdict in favor of the defendant or reduces the plaintiff’s recoverable damages,
the defendant may not have been harmed by the perjury. Nonetheless, the
plaintiff’s perjury has still violated the oath, damaged the integrity of the legal
system, and undermined the process.
Similarly, where a party defends a civil suit by the use of false testimony
that is either revealed as a lie or disbelieved by the jury, it does not mean that
the perjury has been punished. In fact, if the jury is forced to choose between
conflicting testimony because of perjury by the defendant and happens to reach
a verdict consistent with the truth, the perjurer has not been punished at all. In
most such instances, the jury will be instructed that it cannot award damages to
punish the defendant, but merely to compensate the plaintiff for her loss.229
Provided the jury follows the instructions given by the court, as its members have
sworn to do, the amount of the verdict will be the same as it would have been
had the defendant simply admitted his liability rather than attempt the
deception.230
Under Maine’s statute, no cause of action could be brought in either
scenario because a judgment was not obtained against any party as a result of the
perjury.231 Under the MCPA, however, a qui tam action on behalf of the
government could still be brought to recover the civil penalty for the false
testimony and ensure the perjury does not go unpunished.
228. See, e.g., United States v. Mandujano, 425 U.S. 564, 576 (1976) (“Perjured testimony is an
obvious and flagrant affront to the basic concepts of judicial proceedings.”).
229. See, e.g., Gulf, Colo. & Santa Fe Ry. Co. v. Dooley, 131 S.W. 831, 833 (Tex. Civ. App. 1910)
(finding it improper for injured plaintiff to ask jury to punish defendant for presenting false testimony
by increasing damages awarded).
230. Seasoned litigators will protest that this analysis disregards what is believed to be a common
practice of juries to award greater “compensatory” damages as punishment for the mendacious
defendant. Whatever truth there is to this rough justice, it is certainly offset by an equal or greater
number of cases in which jury uncertainty caused by false testimony results in a verdict which “splits
the baby” and either awards the honest party less than full compensation or requires the honest party
to pay some damages when none are warranted. Both instances result in a corresponding windfall for
the dishonest party.
231. See tit. 14, § 870 (requiring judgment be obtained against party as result of perjury).
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PROPOSED MODEL CIVIL PERJURY ACT
Proposed Text
Model Civil Perjury Act232
§ 0001 – Liability for Perjury.
(a) Any person who in any civil proceeding before or ancillary to any
court of the United States makes a false statement under oath or
equivalent affirmation, or swears or affirms the truth of a statement
previously made, when the statement is material and he does not
believe it to be true, is liable to the United States Government for
perjury and subject to a civil penalty of not less than $5,000 and not
more than $50,000, plus reasonable attorney fees and costs.233
(b) Person. As used in this section, the word person shall exclude
federal, state, and local government employees as to statements
relating to matters within the scope and course of their government
employment and private persons who render emergency services as
part of their employment duties as to statements relating to the
rendering of those emergency services.
(c) Materiality. A false statement is material, regardless of the
admissibility of the statement under rules of evidence, if it could have
affected the course or outcome of the proceeding. It is no defense that
the declarant mistakenly believed the falsification to be immaterial.
Whether a falsification is material in a given factual situation is a
question of law.234
(d) Irregularities No Defense. It is not a defense under this section that
the oath or affirmation was administered or taken in an irregular
manner or that the declarant was not competent to make the
statement. A document purporting to be made on oath or affirmation
at any time when the actor presents it as being so verified shall be
deemed to have been duly sworn or affirmed.235
(e) Retraction. No person shall be liable under this section if he
232. The MCPA is drafted as a federal statute for the sake of convenience, but it could easily be
modified to redress perjury in any state judicial system having the will to confront the problem. To
quote Justice Brandeis, “It is one of the happy incidents of the federal system that a single courageous
state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments
without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting).
233. The definition of the offense is based on MODEL PENAL CODE § 241.1(1) (1980). The
damages language is based on 31 U.S.C. § 3729(a) (2000).
234. MODEL PENAL CODE § 241.1(2).
235. MODEL PENAL CODE § 241.1(3).
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retracted the falsification in the course of the proceeding in which it
was made before it became manifest that the falsification was or would
be exposed and before the falsification substantially affected the
proceeding.236
(f) Inconsistent Statements. Where the defendant made inconsistent
statements under oath or equivalent affirmation, both having been
made within the period of the statute of limitations, the plaintiff may
proceed by setting forth the inconsistent statements in a single count
alleging in the alternative that one or the other was false and not
believed by the defendant. In such case it shall not be necessary for the
plaintiff to prove which statement was false but only that one or the
other was false and not believed by the defendant to be true.237
(g) A claim under this section must be proven by clear and convincing
evidence. It shall not be necessary that such proof be made by any
particular number of witnesses or by documentary or other type of
evidence.238
§ 0002 – Subornation of Perjury
Every person who willfully procures another person to commit perjury
is liable for subornation of perjury and is liable in the same manner as
he would be if he personally committed the perjury so procured.239
§0003 – Actions for Perjury in a Civil Proceeding.
(a) Actions by the Attorney General. If the Attorney General finds
that a person has violated or is violating section 0001 or 0002, the
Attorney General may bring a civil action under this section against
the person.
(b) Actions by private persons.
(1) A person may bring a civil action for a violation of section
0001 or 0002 for the person and for the United States Government.
The action shall be brought in the name of the Government. The
action may be dismissed only if the court and the Attorney General
give written consent to the dismissal and their reasons for
consenting.240
(2) A copy of the complaint and written disclosure of substantially
all material evidence and information the person possesses shall be
236. MODEL PENAL CODE § 241.1(4).
237. MODEL PENAL CODE § 241.1(5).
238. Based on 18 U.S.C. § 1623(e) (2000) but modified to reflect the civil “clear and convincing”
standard of proof rather than the “beyond a reasonable doubt” standard required for a criminal
conviction under § 1623.
239. Based on CAL. PENAL CODE § 127 (West 1999).
240. Based on 31 U.S.C. § 3730(b)(1).
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served on the Government pursuant to Rule 4(d)(4) of the Federal
Rules of Civil Procedure. The complaint shall be filed in camera, shall
remain under seal for at least sixty days, and shall not be served on the
defendant until the court so orders. The Government may elect to
intervene and proceed with the action within sixty days after it receives
both the complaint and the material evidence and information or the
Government may stay the action and proceed with a criminal
prosecution for perjury.241
(3) The Government may, for good cause shown, move the court
for extensions of the time during which the complaint remains under
seal under paragraph (2). Any such motions may be supported by
affidavits or other submissions in camera. The defendant shall not be
required to respond to any complaint filed under this section until
twenty days after the complaint is unsealed and served on the
defendant pursuant to Rule 4 of the Federal Rules of Civil
Procedure.242
(4) Before the expiration of the sixty-day period or any extensions
obtained under paragraph (3), the Government shall—
(A) proceed with the action, in which case the action shall be
conducted by the Government; or
(B) notify the court that it declines to take over the action, in
which case the person bringing the action shall have the right to
conduct the action.243
(5) When a person brings an action under this subsection, no
person other than the Government may intervene or bring a related
action based on the facts underlying the pending action.244
(c) Rights of the parties to qui tam actions.
(1) If the Government proceeds with the action, it shall have the
primary responsibility for prosecuting the action and shall not be
bound by an act of the person bringing the action. Such person shall
have the right to continue as a party to the action, subject to the
limitations set forth in paragraph (2).245
(2) (A) The Government may dismiss the action,
notwithstanding the objections of the person initiating the action, if the
person has been notified by the Government of the filing of the motion
and the court has provided the person with an opportunity for a
hearing on the motion.246
(B) The Government may settle the action with the
defendant notwithstanding the objections of the person initiating the
241.
242.
243.
244.
245.
246.
Based on 31 U.S.C. § 3730(b)(2).
Based on 31 U.S.C. § 3730(b)(3).
Based on 31 U.S.C. § 3730(b)(4).
Based on 31 U.S.C. § 3730(b)(5).
Based on 31 U.S.C. § 3730(c)(1).
Based on 31 U.S.C. § 3730(c)(2)(A).
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action if the court determines, after a hearing, that the proposed
settlement is fair, adequate, and reasonable under all the
circumstances. Upon a showing of good cause, such hearing may be
held in camera.247
(C) Upon a showing by the Government that unrestricted
participation during the course of the litigation by the person initiating
the action would interfere with or unduly delay the Government’s
prosecution of the case, or would be repetitious, irrelevant, or for
purposes of harassment, the court may, in its discretion, impose
limitations on the person’s participation, such as—
(i) limiting the number of witnesses the person may call;
(ii) limiting the length of the testimony of such
witnesses;
(iii) limiting the person’s cross-examination of witnesses;
or
(iv) otherwise limiting the participation by the person in
the litigation.248
(D) Upon a showing by the defendant that unrestricted
participation during the course of the litigation by the person initiating
the action would be for purposes of harassment or would cause the
defendant undue burden or unnecessary expense, the court may limit
the participation by the person in the litigation.249
(3) If the Government elects not to proceed with the action, the
person who initiated the action shall have the right to conduct the
action. If the Government so requests, it shall be served with copies of
all pleadings filed in the action and shall be supplied with copies of all
deposition transcripts (at the Government’s expense). When a person
proceeds with the action, the court, without limiting the status and
rights of the person initiating the action, may nevertheless permit the
Government to intervene at a later date upon a showing of good
cause.250
(4) Whether or not the Government proceeds with the action,
upon a showing by the Government that certain actions by the person
initiating the qui tam action would interfere with the Government’s
investigation or prosecution of a criminal or civil matter arising out of
the same facts, the court may stay the qui tam action for a period of not
more than sixty days. Such a showing shall be conducted in camera.
The court may extend the sixty-day period upon a further showing in
camera that the Government has pursued the criminal or civil
investigation or proceedings with reasonable diligence and any action
by the qui tam plaintiff in the civil action will interfere with the ongoing
criminal or civil investigation or proceedings.251
247.
248.
249.
250.
251.
Based on 31 U.S.C. § 3730(c)(2)(B).
Based on 31 U.S.C. § 3730(c)(2)(C).
Based on 31 U.S.C. § 3730(c)(2)(D).
Based on 31 U.S.C. § 3730(c)(3).
Based on 31 U.S.C. § 3730(c)(4).
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(d) Award to qui tam plaintiff.
(1) If the Government proceeds with an action brought by a
person under subsection (b), such person shall, subject to the second
sentence of this paragraph, receive at least fifteen percent but not more
than twenty-five percent of the proceeds of the action or settlement of
the claim, depending on the extent to which the person substantially
contributed to the prosecution of the action. Any payment to a person
under the first sentence of this paragraph shall be made from the
proceeds. Any such person shall also receive an amount for reasonable
expenses which the court finds to have been necessarily incurred, plus
reasonable attorneys’ fees and costs. All such expenses, fees, and costs
shall be awarded against the defendant.252
(2) If the Government does not proceed with an action under this
section, the person bringing the action or settling the claim shall
receive an amount which the court decides is reasonable for collecting
the civil penalty. The amount shall be not less than twenty-five percent
and not more than fifty percent of the proceeds of the action or
settlement and shall be paid out of such proceeds. Such person shall
also receive an amount for reasonable expenses which the court finds
to have been necessarily incurred, plus reasonable attorneys’ fees and
costs. All such expenses, fees, and costs shall be awarded against the
defendant.253
(3) If the Government does not proceed with the action and the
person bringing the action conducts the action, the court may award to
the defendant its reasonable attorneys’ fees and expenses if the
defendant prevails in the action and the court finds that the claim of
the person bringing the action was clearly frivolous, clearly vexatious,
or brought primarily for purposes of harassment.254
(e) Certain actions barred. In no event may a person bring an action
under subsection (b) which is based on allegations of perjury that are
the subject of a criminal prosecution, a civil suit, or an administrative
civil money penalty proceeding in which the Government is already a
party.255
(f) The Government is not liable for expenses that a person incurs in
bringing an action under this section.256
(g) Fees and expenses to prevailing defendant. In civil actions brought
252.
253.
254.
255.
256.
Based on 31 U.S.C. § 3730(d)(1).
Based on 31 U.S.C. § 3730(d)(2).
Based on 31 U.S.C. § 3730(d)(4).
Based on 31 U.S.C. § 3730(e)(3).
Based on 31 U.S.C. § 3730(f).
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under this section by the United States, the provisions of 28 U.S.C. §
2412(d) shall apply.257
(h) Any employee who is discharged, demoted, suspended, threatened,
harassed, or in any other manner discriminated against in the terms
and conditions of employment by his or her employer because of
lawful acts done by the employee on behalf of the employee or others
in furtherance of an action under this section, including investigation
for, initiation of, testimony for, or assistance in an action filed or to be
filed under this section, shall be entitled to all relief necessary to make
the employee whole. Such relief shall include reinstatement with the
same seniority status such employee would have had but for the
discrimination, two times the amount of back pay, interest on the back
pay, and compensation for any special damages sustained as a result of
the discrimination, including litigation costs and reasonable attorneys’
fees. An employee may bring an action in the appropriate district court
of the United States for the relief provided in this subsection.258
§ 0004 – Civil Perjury Procedure
(a) A civil action under section 0003 may not be brought—
(1) more than five years after the date on which the violation of
section 0003 is committed, or
(2) more than three years after the date when facts material to the
right of action are known or reasonably should have been known by
the official of the United States charged with responsibility to act in the
circumstances, but in no event more than ten years after the date on
which the violation is committed, whichever occurs last.259
(b) Notwithstanding the doctrine of res judicata, the doctrine of
collateral estoppel, the Federal Rules of Civil Procedure, the Federal
Rules of Evidence, or any other provision of law, a final judgment
rendered in any prior civil proceeding shall not serve to bar a claim
under this act. However, any final judgment in an action brought
pursuant to this Act shall bar any subsequent claims to the same extent
they would be barred by res judicata, collateral estoppel, the Federal
Rules of Civil Procedure, the Federal Rules of Evidence, or any other
provision of law.260
§ 0005 – Evidentiary Use of Judgment Against the Defendant
A judgment imposing liability against any person under this act shall be
admissible evidence to impeach a witness to the same extent as a
257.
258.
259.
260.
Based on 31 U.S.C. § 3730(g).
Based on 31 U.S.C. § 3730(h).
Based on 31 U.S.C. § 3731(b).
Based on 31 U.S.C. § 3731(d).
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conviction of a crime involving dishonesty or false statement under
Rule 609(a)(2) of the Federal Rules of Evidence.
B.
Discussion
1.
The Qui Tam Provision
Qui tam is an abbreviation of the Latin phrase “qui tam pro domino rege
quam pro se ipso in hac parte sequitur,” which means “who pursues this action on
our Lord the King’s behalf as well as his own.”261 Qui tam actions seek to
encourage whistleblowers to act as private attorneys general in bringing suits on
behalf of the government, for which they receive a portion of the funds
recovered in a successful suit as a bounty.262 The most famous qui tam provision
is found in the Federal False Claims Act,263 which allows the government or
private persons with knowledge of fraud against the government, known as
“relators,” to sue on behalf of the United States to recover penalties and treble
damages from those committing the fraud.264
2.
The False Claims Act Serves as a Perfect Template for the MCPA
The False Claims Act is particularly well suited as a model for the MCPA
because it was created to deal with widespread fraud and a lack of criminal
prosecutions,265 two problems remarkably similar to the current problems
resulting from the prevalence of perjury in civil litigation. In order to appreciate
this analogy fully, it is necessary to examine the False Claims Act’s historical
founding and development.
In 1863, the United States was divided and embroiled in the most
destructive war of our nation’s history. The Union Army rapidly became an
enormous consumer of arms, ammunition, food, clothing, and countless other
items needed to prosecute the war. Early defense contractors found a
preoccupied and desperate federal government an easy target on which to
perpetrate all manners of fraud.266 Faced with the pervasive abuse and lacking
today’s federal investigative agencies, Congress believed that the problem could
261. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 768 n.1 (2000).
262. See United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 1032, 1041-42
(6th Cir. 1994) (recognizing rights of individuals to act as “private attorneys-general” under qui tam
provisions).
263. 31 U.S.C. §§ 3729-33.
264. 31 U.S.C. §§ 3729-30.
265. See Helmer & Neff, supra note 32, at 35-36 (describing problems during Civil War with
defense procurement fraud that gave rise to False Claims Act).
266. See Gregory G. Brooker, The False Claims Act: Congress Giveth and the Courts Taketh
Away, 25 HAMLINE L. REV. 373, 376 (2002) (discussing instances of Union Army buying same horses
several times or receiving gun crates filled with sawdust); see also Michael Lawrence Kolis, Comment,
Settling for Less: The Department of Justice’s Command Performance Under The 1986 False Claims
Amendments Act, 7 ADMIN. L. J. 409, 410 n.4 (1993) (relating incident where blind, diseased mules that
were unfit for service were sold to military).
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813
not be controlled through criminal prosecutions alone.267 Led by President
Abraham Lincoln, Congress passed the False Claims Act and its qui tam
provision, empowering private citizens and their lawyers to prosecute civil
lawsuits on behalf of the government and earn a percentage of any recovery as a
reward.268
Under the False Claims Act, the relator is permitted to keep a percentage of
any damages and penalties recovered.269 The following passage, from an oftenquoted early decision under the Act, explains how the qui tam provision furthers
the Act’s goal of stopping fraud:
The statute is a remedial one. It is intended to protect the treasury
against the hungry and unscrupulous host that encompasses it on every
side, and should be construed accordingly. It was passed upon the
theory, based on experience as old as modern civilization, that one of
the least expensive and most effective means of preventing frauds on
the treasury is to make the perpetrators of them liable to actions by
private persons acting, if you please, under the strong stimulus of
personal ill will or the hope of gain. Prosecutions conducted by such
means compare with the ordinary methods as the enterprising
privateer does to the slow-going public vessel.270
The False Claims Act has been widely utilized. Since Congress amended it
in 1986 to provide for a more generous bounty and to allow the relator to
exercise more control of the litigation, it has resulted in over $17 billion in
recoveries.271
The parallel between the increasing fraud confronting a rapidly growing
federal government and the increasing perjury confronting our rapidly growing
civil litigation system is unmistakable. Also unmistakable is the similarity
between the federal government preoccupied by prosecuting a civil war272 and
the judicial system preoccupied by prosecuting a war on drugs and violent
crime.273 In both instances, a viable solution is to enlist the aid of private persons
267. See Helmer & Neff, supra note 32, at 35-36 (relating lack of effective executive agencies and
design of False Claims Act to provide both criminal and civil remedies).
268. See Cong. Globe, 37th Cong., 3d. Sess. 952, 955 (1863) (statement of Sen. Howard), available
at http://rs6.loc.gov/cgi-bin/ampage?collId=llcg&fileName=063/llcg063.db&recNum=2 (turn to image
955) (“I believe that in matters of this kind a grand jury is little better than useless; that instead of
being a protection to the Government, who is the real sufferer in all cases, they are but a protection to
the knave and the rogue.”); Helmer & Neff, supra note 32, at 35 (implying that President Lincoln drew
from his experience as attorney to create solution of qui tam actions for defense procurement fraud).
269. 31 U.S.C. § 3730(d).
270. United States v. Griswold, 24 F. 361, 366 (D. Or. 1885).
271. False Claims Act Recoveries Top $17 Billion Since 1986, FALSE CLAIMS ACT UPDATE &
ALERT (Taxpayers Against Fraud Education Fund, Wash., D.C.), Jan. 24, 2006,
http://66.98.181.12/whistle77.htm. As an interesting aside, the organization claims that $17 billion
recovered by the False Claims Act since 1986 is equal to a “stack of $100 bills more than 16 miles
high.” Id.
272. See Helmer & Neff, supra note 32, at 35-36 (describing impact of defense procurement fraud
on Civil War).
273. See Curriden, supra note 9, at 68 (discussing increasing frequency of perjury and lack of
resources to prosecute it).
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with knowledge of the wrongdoing to civilly prosecute the wrong in exchange for
a bounty. The enormous financial recovery possible under the False Claims Act
ensures that there are sufficient incentives to bring a claim. In the case of the
MCPA, the financial incentives are more modest, awarding attorney fees, costs,
and up to fifty percent of the maximum civil penalty of $50,000. The act seeks to
tap into the sense of indignation and “personal ill will” felt by many attorneys
toward those who corrupt the rule of law.274
3.
Procedural Requirement and Safeguards
Despite the frequent use of the False Claims Act qui tam provision,
defendants have often challenged whether a relator has standing under Article
III of the Constitution.275 The Supreme Court finally resolved this question in
Vermont Agency of Natural Resources v. United States ex rel. Stevens,276 in which
it held that the relator had standing to sue as a partial assignee of the United
States.277 The Court buttressed its holding by discussing the long tradition of qui
tam actions in England and the American Colonies at the time of the framing of
the Constitution.278 Accordingly, there is no room for doubt that qui tam actions
are “cases” and “controversies” within the meaning of Article III of the
Constitution.279 Because of the similarity between the qui tam provisions in the
MCPA and the False Claims Act, any challenges to the standing of the qui tam
plaintiff should be resolved by the holding in Stevens.
While a qui tam plaintiff is given considerable autonomy to pursue those
who commit perjury, the MCPA is subject to various procedures to ensure that
these actions do not interfere with criminal prosecution and to deter and control
claims brought for an improper purpose. These procedural safeguards are
modeled on similar provisions of the False Claims Act, which have already been
subject to repeated judicial review and interpretation; those opinions would
unquestionably be instructive and persuasive authority when interpreting and
applying similar provisions under the MCPA.
The Federal Rules of Civil Procedure provide the first safeguard.
Complaints alleging violations of the MCPA will be subject to Rule 9(b), which
requires that the circumstances constituting the fraud must be stated with
particularity.280 Rule 9(b)’s particularity requirement was designed to ensure that
the allegations of fraud are specific enough to provide the defendant with notice
of the conduct complained of and enable her to prepare an effective response
274. Cf. Griswold, 24 F. at 366 (recognizing “strong stimulus of personal ill will” in effectuating
qui tam actions under False Claims Act).
275. See United States ex rel. Gublo v. Novacare, Inc., 62 F. Supp. 2d 347, 351-53 (D. Mass. 1999)
(denying defendant’s motion to dismiss for lack of standing and discussing various theories on which
court had found standing in other qui tam cases).
276. 529 U.S. 765 (2000).
277. Stevens, 529 U.S. at 773-74.
278. Id. at 774-77.
279. Id. at 774.
280. FED. R. CIV. P. 9(b).
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815
and defense.281 Typically, courts require that the pleadings state the time, place,
and content of the false statement, as well the identity of the perjurer.282 These
pleading requirements ensure that perjury suits will not be initiated on mere
speculation, nor allow for the qui tam plaintiff to go on a “fishing expedition” in
the hope of discovering a violation without considerable basis in fact for the
allegations.283
The second safeguard is the MCPA’s required evidentiary disclosures. In
addition to the complaint, a qui tam plaintiff must prepare a written disclosure of
all material evidence and information regarding the allegations in the complaint.
The written disclosure is served, along with a copy of the complaint, on the
United States Attorney for the district where the action is filed and on the
Attorney General of the United States.284 At the same time, the complaint must
be filed in camera and under seal, and is not served on the defendant. Once filed,
the complaint remains under seal for at least sixty days while the Government
reviews the complaint and the written disclosure to determine whether it wishes
to intervene in the action or to pursue a criminal prosecution.285 If the
Government needs more time to make its decision, the Government may, for
good cause, move to extend the seal period. Under an identical provision of the
False Claims Act, it is not uncommon for the Government to take a year or
longer to determine whether to intervene.286 This protracted review is necessary
under the False Claims Act because the complicated fraudulent schemes
involved are often very document intensive and may encompass thousands of
transactions.287
281. See Hirschler v. GMD Inv. Ltd. P’ship, No. 90-1289-N, 1990 U.S. Dist. LEXIS 20885, at *3031 (E.D. Va. Dec. 18, 1990) (finding plaintiff’s pleading to be vague and conclusory, thus failing
requirements of Rule 9(b)); Sweeney Co. of Md. v. Eng’rs-Constructors, Inc., 109 F.R.D. 358, 360
(E.D. Va. 1986) (stating purpose of Rule 9(b) is to allow defendant to prepare and protect defendant
from unfounded fraud claims); In re Tanner’s Transfer & Storage of Va., Inc., 30 B.R. 22 (Bankr. E.D.
Va. 1983) (stating that complaint is sufficient when it is specific enough to give defendants notice of
basis for claims being brought against them).
282. Sweeney, 109 F.R.D. at 360 (citing 2A JAMES WM. MOORE ET AL., MOORE’S FEDERAL
PRACTICE ¶ 9.03, at 9-23 to -24 (2d ed. 1985)).
283. Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 789 (4th Cir. 1999).
284. 31 U.S.C. § 3730(b) (2000); see also FED. R. CIV. P. 4(i) (setting forth procedure for service
on “United States, [i]ts Agencies, Corporations, Officers, or Employees”).
285. 31 U.S.C. § 3730(b)(2).
286. See Marc S. Raspanti & David M. Laigaie, Current Practice and Procedure Under the
Whistleblower Provisions of the Federal False Claims Act, 71 TEMP. L. REV. 23, 36-37 (1998)
(discussing governmental extension requests that often exceed one year); see also, e.g., In re Cardiac
Devices Qui Tam Litig., 221 F.R.D. 318, 323-27 (D. Conn. 2004) (granting multiple extensions of seal
period, one for three years); United States ex rel. Franklin v. Parke-Davis, 147 F. Supp. 2d 39, 46 (D.
Mass. 2001) (noting case remained under seal for three years before government elected to participate
in capacity of amicus curiae only while reserving its right to intervene at later point).
287. See Gregg Meyers, Qui Tam Litigation, 10 S.C. LAW. 27, 28 (1999), available at
http://www.scbar.org/pdf/SCL/Mar99/meyers.pdf (noting complex document and factual issues can
arise in qui tam actions); see also, e.g., United States ex rel. Thompson v. Columbia/HCA Healthcare
Corp., 20 F. Supp. 2d 1017, 1039 (S.D. Tex. 1998) (examining alleged fraudulent scheme involving
thousands of Medicare transactions).
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On the other hand, it is anticipated that most perjury claims will involve
only one statement, or perhaps a few, and should not require protracted review
before the Government determines whether it wishes to bring criminal charges
or take over the civil claim. In most cases, it is not expected that the Government
will seek a criminal prosecution or will choose to intervene in the civil action.
The lack of resources and more pressing concerns are expected to preclude
criminal prosecutions or intervention in most cases. This procedure, however,
like the virtually identical procedure under the False Claims Act, ensures that
the Government is made aware of the allegations of perjury and the evidence
supporting the allegations, so it has the opportunity to pursue a criminal
prosecution in cases where the nature of the perjury or the prominence of the
case merits the allocation of scarce resources to prosecution. Whatever the
Government decides on a particular case, the justice system’s interests will be
served by either the criminal prosecution of the perjury or by a civil action.
The third safeguard is that the Government can also intervene and dismiss
the action over the objections of the qui tam plaintiff, provided the plaintiff has
been given notice of the motion to dismiss and the court has provided the
plaintiff with an opportunity to be heard. Similarly, the Government can settle
the action with the defendant over the objections of the qui tam plaintiff,
provided the court determines that the settlement is fair, adequate, and
reasonable under the circumstances. This procedure allows the Government to
step in and prevent frivolous or vexatious litigation where it determines that the
suit is not in the best interest of the judicial system.
If the Government declines to pursue a criminal prosecution or take over
the civil case, the qui tam plaintiff then has the right to pursue the suit. The
complaint is unsealed and served on the defendant, and the case proceeds as
would any other civil action. Substantial procedural safeguards still remain in
place to ensure that the prosecution of the case will not be conducted for an
improper purpose or in an improper way. First, the Government can monitor the
proceedings by requesting that it receive copies of all pleadings and deposition
transcripts and may intervene at a later date for good cause shown. Second, the
plaintiff cannot settle or dismiss any claim without first obtaining the consent of
both the court and the Attorney General. This ensures that the terms of the
settlement are consistent with the purpose of the MCPA and not redressing
some purely private harm. Finally, as an additional deterrent to abuse, the court
may award the defendant reasonable attorney fees and expenses if the defendant
prevails and the court finds that the claim was clearly frivolous, vexatious, or
brought primarily for the purpose of harassment. These procedural safeguards
ensure that the plaintiff adequately pursues his own and the Government’s
interests in the litigation, without interfering with any criminal prosecution.
4. Exclusions for Government Employees and Emergency Services
Personnel
The danger of vexatious litigation that has generally precluded tort claims
for perjury is greatly reduced by the MCPA’s focus on the harm done to the civil
judicial system, not the damages caused to any party in the prior litigation by the
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817
alleged perjury. Nevertheless, certain persons, by nature of their private or
public employment, are frequently required to testify in civil proceedings. These
persons require protection from civil perjury actions, and justice is served by
those protections under the MCPA.
Concerns for vexatious and protracted litigation were of paramount
importance in the Court’s decision in Briscoe v. LaHue,288 which involved an
allegation of perjury in a criminal prosecution. The Court affirmed the dismissal
of petitioners’ 42 U.S.C. § 1983 claims for damages against police officers for
allegedly giving perjured testimony at the petitioners’ criminal trials.289 The
Court relied on the traditional public policy reasons for witness immunity but
emphasized that regarding police officers and other government witnesses, the
danger of vexatious litigation was particularly great.290
Section 1983 lawsuits against police officer witnesses, like lawsuits
against prosecutors, “could be expected with some frequency.” Police
officers testify in scores of cases every year, and defendants often will
transform resentment at being convicted into allegations of perjury by
the State’s official witnesses. As the files in this case show, even the
processing of a complaint that is dismissed before trial consumes a
considerable amount of time and resources.291
The volume and the creative breadth of prisoner suits that currently clog
court dockets is sufficiently vast292 to validate the court’s concern for vexatious
civil action by those whose testimony resulted in conviction. Significant time and
resources would be required if civil perjury suits are allowed against law
enforcement personnel.
Similarly, police officers as well as other government employees and private
emergency service providers testify in numerous civil actions every year.
Building inspectors, health inspectors, coroners, clerks, public works employees,
and countless others are called on to testify in purely private suits about matters
within the scope and course of their employment. These witnesses have no
personal interest in the litigation and incentives for them to commit perjury are
unlikely.293 Nonetheless, their testimony may be inaccurate due to the passage of
288. 460 U.S. 325 (1983).
289. Briscoe, 460 U.S. at 326.
290. Id. at 343.
291. Id. (quoting Imbler v. Pachtman, 424 U.S. 409, 425 (1976)).
292. In 2003, prisoners filed a total of 54,378 petitions in U.S. District Courts. BUREAU OF
JUSTICE STATISTICS, supra note 61, at 461, tbl.5.65. Of these, 9383 consisted of complaints regarding
prison conditions and 14,690 consisted of complaints regarding alleged deprivations of the prisoners’
constitutional rights. Id. But see Honorable Jon O. Newman, Pro Se Prisoner Litigation: Looking for
Needles in Haystacks, 62 BROOK. L. REV. 519, 519-22 (1996) (discussing prevalence and generally
frivolous nature of prisoner suits but debunking misleading and false examples of “typical” cases
reported by state attorneys general).
293. This is not to suggest that police officers, by virtue of their position of public trust, are less
likely to commit perjury. Many knowledgeable commentators have convincingly argued that police
perjury is epidemic in criminal prosecutions. See generally David N. Dorfman, Proving the Lie:
Litigating Police Credibility, 26 AM. J. CRIM. L. 455 (1999) (acknowledging problem of police perjury
and referencing numerous authoritative articles). Nevertheless, as Judge Learned Hand wrote in
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time, inadequate notes, or the sheer volume of transactions or occurrences they
encounter. Honest but inaccurate testimony that results in a party losing his case
is likely to result in a retaliatory perjury claim. Although these suits could not
alter the judgment in the prior case, resentment and the modest qui tam reward
might motivate the losing party to bring the claim. This danger could negatively
affect and interfere with the important functions served by these public servants
and providers of emergency services and cuts to the core of the public policy
concerns supporting traditional witness immunity. Accordingly, the MCPA
expressly excludes actions based on an allegation of perjury by government
employees and emergency service providers regarding statements relating to
matters within the scope and course of their employment.
5.
Protection Against Retaliatory Employment Discrimination
The MCPA contains a provision that protects employees from retaliatory
employment discrimination resulting from their participation in a civil perjury
action. In many cases, the only person who will have knowledge of the perjury in
a civil case will be an employee of the parties in the prior litigation. The purpose
of the MCPA’s qui tam provision is to encourage those with such knowledge of
perjury to come forward and expose it. To expect these persons to blow the
whistle on their perjurious coworkers, supervisors, and chief executive officers if
they face the prospect of loss of livelihood without redress is unreasonable. The
MCPA provides such employees with protection from retaliation for their lawful
acts in furtherance of the perjury suit. In order to fall under the protection of this
provision, the employee must take some action “in furtherance of” an MCPA
action.294 The provision includes “examples of the types of activity that are
protected, including investigation, initiation of a suit, and testimony, but these
examples are not exclusive” and the provision should be “interpreted broadly, in
light of the purpose of the statute.”295 Additionally, the plaintiff’s employer must
know that the employee is engaged in protected activity and retaliate against the
employee, at least in part, because of the protected activity.296 A plaintiff may
proceed with a claim under this provision independent of a qui tam perjury
action.297 The protection provided under this provision is identical to the
protection provided to whistleblowers under the False Claims Act and the
numerous cases interpreting that provision will provide ample guidance to the
specific requirements of such a claim.
affirming the dismissal of a malicious prosecution claim by a plaintiff wrongly arrested and detained as
an enemy alien during the World War II, it is “better to leave unredressed the wrongs done by
dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.”
Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950).
294. See Fanslow v. Chi. Mfg. Ctr., Inc., 384 F.3d 469, 479 (7th Cir. 2004) (applying analogous
provision under False Claims Act).
295. See id. (same).
296. See id. (same).
297. See id. (same).
2006]
6.
TO TELL THE TRUTH
819
Evidentiary Use of a Judgment
One of the most important provisions of the MCPA provides that a
judgment against a defendant under the MCPA will be admissible in evidence in
any future proceeding under the same circumstances as a conviction for a crime
involving dishonesty or false statements under Rule 609(a)(2) of the Federal
Rules of Evidence. Rule 609 covers the use of prior convictions for the purpose
of impeaching the credibility of witnesses and parties.298 The Rule distinguishes
felonies generally from crimes involving dishonesty and false statements. Under
Rule 609(a)(1), felony convictions are admissible if the court determines that the
“probative value of admitting the evidence outweighs its prejudicial effect to the
accused.”299 This rule requires the trial court to exercise its discretion and
balance the probative value the prior conviction has on the issue of credibility
with the danger that the evidence will be misused by the jury for purposes other
than impeachment.300 The court does not have discretion, however, to exclude
evidence of a conviction of a crime involving dishonesty or false statements,
because its probative value on the issue of credibility is deemed too great.301 A
conviction for perjury is always deemed admissible in subsequent proceedings.
The same rule applies with regard to verdicts imposing civil penalties for perjury
under the MCPA. This evidentiary rule will serve a critical role in removing the
financial motivation for experts to commit perjury in civil proceedings.
Currently, experts are under powerful financial incentives to provide litigants
with testimony that supports the lawyer’s theory of the case. They also seek to be
repeat players in civil litigation. This provision will ensure that these professional
expert witnesses balance the potential cost of being effectively barred from
future testimony if they give false testimony against the financial benefits of
giving false but effective testimony.
VI. CONCLUSION
There is little doubt that perjury in civil cases has become a serious problem
that goes largely unaddressed by the criminal or civil judicial system. Society and
the nature of civil litigation have changed in ways that foster perjury, while the
tools to fight perjury have become ineffective. Just as we as a society have
become tolerant of deception in daily life, perhaps we have grown too
accustomed to and tolerant of the lies told from the witness stand by those who
have sworn to tell the truth. Contingency fee contracts and the “business of law”
have created financial incentives for lawyers to avoid knowing too much about
the testimony they present. Similar financial incentives affect the veracity of
expert testimony, a phenomenon that has exploded in modern civil litigation.
The cross-examination of these experts is difficult because of the nature of the
298. FED. R. EVID. 609.
299. FED. R. EVID. 609(a)(1).
300. United States v. Tracy, 36 F.3d 187, 192 (1st Cir. 1994).
301. FED. R. EVID. 609(a)(2); see also, e.g., Tracy, 36 F.3d at 192 (stating that court lacks
discretion to exclude conviction for crime of dishonesty or false statements).
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[Vol. 79
subject matter, the experts’ familiarity with the judicial process, and the
evidentiary rules regarding the admissibility of the basis for the opinions. Finally,
even where perjury can be identified and proven, it is unlikely to be criminally
prosecuted because of the lack of resources available for the task.
In a very real sense, “truth is the currency of the courts.”302 As Alexander
Hamilton observed, the judiciary has neither the force of the executive branch
nor the purse of the legislature, “but merely judgment, and must ultimately
depend upon the aid of the executive arm even for the efficacy of its
judgments.”303 Nevertheless, the judgments of the courts of this land are
honored, enforced, and respected, at least in part, because the people and their
elected representatives believe that the judicial process and the courts’ rulings
are fair and just. Perjury undermines the fundamental truth-seeking process of
the courts and the integrity and legitimacy of the judicial process.
The MCPA provides a vehicle for those with knowledge of perjury in the
civil judicial system to bring it into the purifying light of public scrutiny and
condemnation. It empowers an almost inexhaustible supply of private attorneys
to prosecute civilly the perjurers and uphold the integrity of the system they love
and have sworn to protect. It properly balances the needs of finality with the
needs of justice and legitimacy. It does all this with little cost to taxpayers and
without diverting scarce public resources from the important task of prosecuting
violent crime. The legislature must enact the MCPA to protect the courts from
those who are contemptuous of truth and honor and miss no opportunity to act
against the law. Those in the legislature who love and cherish our system of
justice must not miss this “opportunity to do something for the law.”304
Nevertheless, some will say that the proposed MCPA is too drastic and that
its adoption could have unforeseen consequences. But better to risk possible
unforeseen harms than to continue to hide our collective heads in the sand and
pretend that the problem of perjury is not undermining the rudimentary
demands of justice and the integrity of the judicial system. “[A]voiding lies can’t
be as simple as shutting one’s eyes. Hungry lions don’t go away when the ostrich
in the legend sticks her head in the sand.”305 Inaction under these circumstances
“undermines and dishonors the legal system” and the courts.306 We must not
become accustomed to this blight, blind to its dangers, nor too timid in our
response. The MCPA protects the integrity and honor of the legal system by
making only the most modest of demands on witnesses: to tell the truth.
302. United States v. Bobo, 395 F. Supp. 2d 1116, 1126 (N.D. Ala. 2004).
303. THE FEDERALIST NO. 78, at 523 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
304. See ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317, 331 (1994) (Scalia, J., concurring)
(discussing his regret that NLRB failed to use its discretion to deny reinstatement for employee who
committed perjury in administrative proceeding).
305. Luban, supra note 82, at 959.
306. See ABF Freight Sys., Inc., 510 U.S. at 326-27 (Scalia, J., concurring) (discussing NLRB’s
apparent tolerance of perjury in administrative proceeding).