Subornation of Perjury
To establish a case of subornation of perjury, a prosecutor must
demonstrate that perjury was committed; that the defendant procured the
corruptly, knowing, believing or having reason to believe it to be false
testimony; and that the defendant knew, believed or had reason to believe
the perjurer had knowledge of the falsity of his or her testimony.|
To secure a conviction for subornation of perjury, the perjury
must actually have been committed. United States v. Hairston, 46
361, 376 (4th Cir.), cert. denied, 116 S.Ct. 124 (1995). The
perjury must be proved under the standards required by the applicable
statute. Thus, if section 1621 applies to the underlying perjury, the two
witness rule must be met, but not if section 1623 applies to the underlying
perjury. United States v. Gross, 511 F.2d 910, 915 (3d Cir.),
denied, 423 U.S. 924 (1975). Physical coercion need not be proven in
prosecutions for subornation of perjury. United States v. Heater, 63
311, 320 (4th Cir. 1995), cert. denied, 116 S.Ct. 796 (1996).
to suborn perjury may be prosecuted irrespective of whether perjury has been
committed. The two witness rule does not apply in conspiracy prosecutions.
Solicitation of perjured testimony also may be prosecuted as obstruction of
justice irrespective of whether the perjured testimony took place.
States v. Silverman, 745 F.2d 1386, 1395 (11th Cir. 1984).
Because the crime of subornation of perjury is distinct from that
perjury, the suborner and perjurer are not accomplices; however, a person
causes a false document to be introduced through an innocent witness can be
liable as a principal under 18 U.S.C. § 2(b). United States v.
Walser, 3 F.3d 380, 388 (11th Cir. 1993).
The attorney's ethical obligations when confronted by a client who
wishes to testify falsely are discussed at length in Nix v.
U.S. 157 (1986). See also Rules 1-102, 4-101 and 7-109 of the Code
Professional Responsibility, Canons 1, 4, and 7, and Ethical Consideration
[cited in USAM 9-69.200]