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Article

Abstract

This article focuses on the inconsistent statement provision of the Federal False Declaration Statute. Part I of this article identifies certain anomalous aspects of perjury that make it particularly difficult to control by threats of punishment. Perjury's resemblance to an innocent mistake creates a risk that criminal sanctions will be misapplied. These sanctions may have counterproductive effects, at times inducing people to commit perjury and at others inhibiting people from correcting inaccurate testimony that they have previously given. Part II demonstrates the way in which the conflict between the goals of deterrence and mitigation is manifested in the federal perjury laws, which seek both to penalize "inconsistent" testimony and to encourage "recantation" of incorrect testimony. Statutory restrictions and judicial construction have resolved this conflict against mitigation. Part III describes the harmful effects of this statutory policy on witnesses and the attorneys who represent them. It also questions the strategic value of the inconsistent statement provision to federal prosecutors. Part IV offers a recommendation for a more coherent statutory policy toward inconsistent testimony and evaluates that recommendation in light of the regulatory problems identified in Part I. It concludes that federal law should more liberally encourage corrections of prior testimony even at the cost of some additional loss in deterrence.

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