Comparison of Perjury Statutes18 USC 1621 and
Recantation was never a defense to perjury in the common law, and
not a complete defense in a Section 1621 prosecution. United States v.
Norris, 300 U.S. 564, 573-74 (1937). Recantation in such cases is
only as to whether the defendant intended to make a willfully false
Section 1623(d), however, makes recantation a bar to a perjury
prosecution in certain cases that meet either three or four requirements.
the recantation must be made "in the same continuous court or grand jury
proceeding" in which the original false declaration was made. Second, the
recantation must unambiguously admit that the prior statement was false. A
request to clarify or supplement testimony is not enough to satisfy the
requirement. Finally, recantation bars prosecution only if the admission
at a time when the false declaration has "not substantially affected the
proceedings, and it has not become manifest that such falsity has been or
be exposed." United States v. Fornaro, 894 F.2d 508, 511 (2d Cir.
United States v. Scivola, 766 F.2d 37, 45 (1st Cir. 1985); United
States v. Moore, 613 F.2d 1029, 1039 (D.C. Cir. 1979), cert.
446 U.S. 954 (1980). Thus, if the witness has knowledge that the false
"has been or will be exposed," no effective recantation can thereafter be
United States v. Denison, 663 F.2d 611, 615 (5th Cir. 1981).
if the grand jury has acted in reliance upon the false testimony, no
is possible. The United States Court of Appeals for the Eighth Circuit,
viewed the last two requirements in the disjunctive when it allowed a
an opportunity to show either that the proceedings were not
affected or that the falsity will be exposed. United States v.
Smith, 35 F.3d 344, 347 (8th Cir. 1994). Because recantation is a
jurisdictional bar to prosecution, Fed.R.Crim.P. 12(b)(2) requires that it
shown before trial. United States v. Fornaro, 894 F.2d 508, 511 (2d
PRACTICE TIP: The prosecutor has no duty to advise a witness of
possibility of recanting under Section 1623(d), even if the witness is
of the penalties for perjury. Nor must the government confront a witness
evidence of the untruthfulness of his statements, or, conversely, delay
incriminating evidence so that the witness can consider whether to recant.
however, the prosecutor specifically allows a witness to "straighten out"
testimony, the government may be estopped from challenging a witness's
eligibility to recant. Normally, no perjury prosecution should be
after a solicited recantation, even if the defendant was technically
under Section 1623(d).
PRACTICE TIP: If a witness who has completed his or her testimony
requests the opportunity to appear before the grand jury to recant
prosecutor should grant the request, provided it is timely and in keeping
the promotion of truthful testimony. A witness's request for reappearance
the falsity of the previous testimony has become manifest does not preclude
prosecution of the prior false declaration and may be denied.
[cited in USAM 9-69.200]