The whole truth

Courtroom lawyers and trial judges in California, as in most jurisdictions, hardly think about the words used when a witness is placed under oath, so familiar are they.

As even our friends who lack a J.D. know, the witness typically swears that she will tell not just the truth, and not just nothing but the truth, but also... the whole truth.

Indeed, the model oaths and affirmations in Code of Civil Procedure Section 2094 have included "the whole truth" since the Code's enactment in 1872.

In its current form, with my italics added, Section 2094(a)(2) suggests the following affirmation: "Do you solemnly state, under penalty of perjury, that the evidence that you shall give in this issue (or matter) shall be the truth, the whole truth, and nothing but the truth?" (The suggested oath, in section 2094(a)(1), contains the same "whole truth" language but adds "so help you God.")

It is, of course, a good thing for the legal process when witnesses tell the whole truth. Judges like that. It makes court proceedings better. And to that end, it certainly is helpful if the oath encourages witnesses to do so.

But does a witness really commit perjury by failing to tell the whole truth?

Not according to the California Court of Appeal, at least since the year in which the Bay Area began constructing the Golden Gate Bridge and Hollywood premiered the original "King Kong."

In People v. French, 134 Cal. App. 694 (1933), an individual named James French submitted an affidavit to receive work or aid offered to indigent persons by the County of Los Angeles. French stated: "I do own property," "[t]he county assessed valuation thereof is unknown" and "my income is four per cent interest on $332."

French apparently possessed some funds that he did not disclose, and he was charged with perjury due to his affidavit, which omitted them. The trial court (Fletcher Bowron, later to serve many years as Los Angeles mayor) set aside the charge, and the Court of Appeal affirmed that ruling.

The court "noted that ... defendant made no direct attempt to state either the nature, the location, or the value of his property." His arguable dereliction "consisted in his failure to make an affidavit as to a required fact or facts, rather than in any affirmative or express false swearing with reference thereto." "[A] criminal action for perjury," the court held, "will not lie for failure to make affidavit of facts."

Another way of saying this: you don't commit perjury merely by failing to offer the whole truth.

The law since French has developed to the same effect. Literally truthful but incomplete answers cannot support a perjury prosecution. Bronston v. United States, 409 U.S. 352 (1973); In re Rosoto, 10 Cal. 3d 939 (1974). In California, that is because our perjury statute uses language that criminalizes false statements, but does not criminalize the failure to tell the whole truth. It applies when a person under oath "states as true any material matter which he or she knows to be false." Penal Code Section 118.

In his article "Perjury By Omission," 97 WASH. U. L. REV. 265 (2019) (available on ssrn.com as in forthcoming issue), Professor Ira P. Robbins of American University in Washington, D.C., argues for criminalizing the failure to tell the whole truth and proposes a revised federal perjury statute that would do so. Professor Robbins provides a California case, People v. Meza, 188 Cal. App. 3d 1631 (1987), as one of very few offered examples of a court criminalizing perjury based on omitting information. But while Meza seems to reject French, it does not actually do so in a way that indicates it is perjury to fail to tell the whole truth.

Meza states: "We disagree with the bald assumption in French that silence can never amount to perjury...." 188 Cal. App. 3d at 1645. But Meza came in a particular context where it construed silence as tantamount to the statement "no" rather than as the basis for a prosecution based on omitted information.

Meza upheld the perjury conviction of Eric Meza, a prospective juror who, in voir dire, was silent when the trial judge asked if anyone on the panel knew the defendant. In fact, the defendant was married to Meza's sister. His potential bias undiscovered, Meza made it onto the jury.

The court learned of the kinship during trial and excused Meza, who was replaced with an alternate. Interestingly, when the judge questioned Meza about his failure to acknowledge knowing the defendant, Meza admitted that he "wanted for him to have to go back to prison." He wanted to "help out the other side, um, because he has done things, you know, to my family, and, you know, I was taking it kind of personal." Perhaps understandably, the trial judge responded that he would refer Meza for a perjury prosecution.

After Meza's conviction, the Court of Appeal affirmed his perjury conviction by holding that he was in a situation where his jury could find that Meza's "silence is taken for an answer." Id. at 1646. The case, then, turned not on what would be a novel basis -- Meza's failure to provide the whole truth -- but rather on the more prosaic ground that his "silence would be taken for a negative answer, i.e., a negative statement." Id. at 1647. The Court of Appeal held that there was sufficient evidence for the jury that convicted Meza to determine that Meza's silence was the false statement "no." Id. at 1648.

Looked at this way, Meza did not uphold a conviction because the defendant told a partial truth rather than the whole truth, but rather simply because he made a flatly false statement (a "no") that was, in the circumstances, made by his conduct in intentionally keeping his hand down. It was just as if the trial judge had prospective jurors vocalize "no" when they kept their hands down. Thus, in a later case -- in contrast with Meza -- the Court of Appeal held that a prospective juror's literally true but incomplete response to a compound question could not support a perjury charge. Cabe v. Superior Court, 63 Cal. App. 4th 732 (1998).

Professor Robbins marshals Meza as a case that "limit[s] the literal truth defense" and "attempts to close the literal truth loophole." This is, I think, an over-reading of Meza. That case adds a bit to our understanding of what can constitute perjury. But the literal truth defense to perjury has not been under assault by California case law, either now or in 1987.

(To be sure, if one looks beyond the crime of perjury, there may be ways to prosecute certain situations involving a defendant who fails to disclose information, including as part of an obstruction of justice charge or under some false statement statutes governing particular areas. In civil torts, as well, a material omission often is actionable.)

But, interestingly, Professor Robbins notes that one state's perjury statute encompasses the failure to tell the whole truth. South Carolina criminalizes providing not just "false" testimony under oath, but also "incomplete" and "misleading" testimony. S.C. Code Ann. Section 16-9-10(A)(1).

In Professor Robbins' view, a federal statute designed to "combat the literal truth loophole" would reduce the ability of "sophisticated deponents or witnesses" to mislead juries. He argues: "The literal truth defense is uncontained and delegitimizes the purpose of the perjury statute." His proposed statute "would require courts and juries to take a broader look at the context surrounding a defendant's statement or lack thereof to determine whether the defendant meant to mislead the questioner with his or her omissions. The statute would still protect witnesses and encourage honest testimony, as it would not criminalize mistakes or misunderstandings."

It is interesting to consider what the net effect would be of such a perjury statute on our justice system. At a minimum, criminalizing the failure to tell the whole truth would prompt a sharp divergence from current criminal practice, despite what our state's model witness oaths seem to indicate. Under current law, experienced prosecutors and other litigators know that they must be crystal clear and precise in their questioning of witnesses if they wish to lay the groundwork for a perjury charge. They know that perjury will be committed only if there is a knowingly false statement, not a knowingly incomplete one. Conversely, as the law stands, a lawyer is not inviting a perjury prosecution by advising a client-witness to listen carefully and truthfully answer only the question asked.

And that is at least some of the truth. 