Testimony of Alan M.
House of Representatives Judiciary
December 1, 1998
My name is Alan M. Dershowitz and I have been teaching criminal law at
Harvard Law School for 35 years. I have also participated in the litigation
— especially at the appellate level — of hundreds of federal and
state cases, many of them involving perjury and the making of false statements.
I have edited a casebook on criminal law and have written 10 books and hundreds
of articles dealing with subjects relating to the issues before this committee.
It is an honor to have been asked to share my experience and expertise with you
all here today.
For nearly a quarter century, I have been teaching, lecturing and
writing about the corrosive influences of perjury in our legal system,
especially when committed by those whose job it is to enforce the law, and
ignored — or even legitimized — by those whose responsibilities it is
to check those who enforce the law.
On the basis of my academic and professional experience, I believe that
no felony is committed more frequently in this country than the genre of
perjury and false statements. Perjury during civil depositions and trials is so
endemic that a respected appellate judge once observed that "experienced
lawyers say that, in large cities, scarcely a trial occurs in which some
witness does not lie." He quoted a wag to the effect that cases often are
decided "according to the preponderance of perjury." Filing false tax returns and other documents
under pains and penalties of perjury is so rampant that everyone acknowledges
that only a tiny fraction of offenders can be prosecuted. Making false
statements to a law enforcement official is so commonplace that the Justice
Department guidelines provide for prosecution of only some categories of this
daily crime. Perjury at criminal trials is so common that whenever a defendant
testifies and is found guilty, he has presumptively committed perjury. Police perjury in criminal cases - particularly
in the context of searches and other exclusionary rule issues - is so pervasive
that the former police chief of San Jose and Kansas City has estimated that
"hundreds of thousands of law-enforcement officers commit felony perjury every
year testifying about drug arrests" alone.
In comparison with their frequency, it is likely that false statement
crimes are among the most under-prosecuted in this country. Though state and
federal statutes carry stringent penalties for perjury, few perjurers ever
actually are subjected to those penalties. As prosecutor E. Michael McCann has
concluded, "Outside of income tax evasion, perjury is…probably the most
underprosecuted crime in America." Moreover,
there is evidence that false statements are among the most selectively
prosecuted of all crimes, and that the criteria for selectivity bears little
relationship to the willfulness or frequency of the lies, the certainty of the
evidence or any other neutral criteria relating to the elements of perjury or
other false statement crimes. Professor Richard H. Underwood, the
Spears-Gilbert Professor of Law at the University of Kentucky's law school,
more often, the [perjury] law has been invoked for revenge, or for the
purpose of realizing some political end (the very base reason that lies are
sometimes told!), or for the purpose of nabbing a criminal who might otherwise
be difficult to nab, or, dare I say it, for the purpose of gaining some
tactical advantage. Proving that perjury was committed, or that a "false
statement" or a "false claim" was made, may be an easier, or a more palatable,
brief for the prosecution.
Historically, false statements generally have admitted of considerable
variations in degree. The core concept of
perjury was that of "bearing false witness," a biblical term that consisted in
accusing another of crime.
Clearly, the most heinous brand of lying is the giving of false
testimony that results in the imprisonment or even execution of an innocent
person. Less egregious, but still quite serious, is false testimony that
results in the conviction of a person who committed the criminal conduct, but
whose rights were violated in a manner that would preclude conviction if the
police were to testify truthfully. There are many other points on this
continuum, ranging from making false statements about income or expenses to
testifying falsely in civil trials. The least culpable genre of false
statements are those that deny embarrassing personal conduct of marginal
relevance to the matter at issue in the legal proceeding.
Much of the public debate about President Clinton and possible perjury
appears to ignore the following important lessons of history:
1. that the overwhelming majority of individuals who make false
statements under oath are not prosecuted;
2. that those who are prosecuted generally fall into some special
category of culpability or are victims of selective prosecution; and,
3. that the false statements of which President Clinton is accused fall
at the most marginal end of the least culpable genre of this continuum of
offenses and would never even be considered for prosecution in the routine case
involving an ordinary defendant.
My interest in the corrosive effects of perjury began in the early 1970s
when I represented — on a pro bono basis — a young man who was both a
member of and a government informer against the Jewish Defense League. He was
accused of making a bomb that caused the death of a woman, but he swore that a
particular policeman, who had been assigned to be his handler, had made him
certain promises in exchange for his information. The policeman categorically
denied making any promises, but my client had — unbeknownst to the
policeman — surreptitiously taped many of his conversations with the
policeman. The tapes proved beyond any doubt that the policeman had committed
repeated perjury, and all charges were dropped against my client. But the
policeman was never charged with perjury. Instead he was promoted.
The following year, I represented, on appeal, a lawyer accused of
corruption. The major witness against him was a policeman who acknowledged at
trial that he himself had committed three crimes while serving as a police
officer. He denied that he had committed more than these three crimes. It was
subsequently learned that he had, in fact, committed hundreds of additional
crimes, including some he specifically denied under oath. He too was never
prosecuted for perjury, because a young Assistant U.S. Attorney, named Rudolph
Giuliani, led a campaign against prosecuting this admitted perjurer. Shortly
afterward, the policeman explained:
Cops are almost taught how to commit perjury when they are in the
Police Academy. Perjury to a policeman - and to a lawyer, by the way - is not a
big deal. Whether they are giving out speeding tickets or parking tickets,
they're almost always lying. But very few cops lie about the actual facts of a
case. They may stretch an incident or whatever to fit it into the framework of
the law based on what they consider a silly law of the Supreme Court.
Nor is the evidence of police perjury merely anecdotal. Numerous
commission reports have found rampant abuses in police departments throughout
the country. All objective reports point to a pervasive problem of police
lying, and tolerance of the lying by prosecutors and judges, all in the name of
convicting the factually guilty whose rights may have been violated and whose
convictions might be endangered by the exclusionary rule.
As the Mollen Commission reported:
The practice of police falsification in connection with such arrests
is so common in certain precincts that it has spawned its own word:
"testilying." . . . Officers also commit falsification to serve what they
perceive to be "legitimate" law enforcement ends - and for ends that many
honest and corrupt officers alike stubbornly defend as correct. In their view,
regardless of the legality of the arrest, the defendant is in fact guilty and
ought to be arrested.
Even more troubling, in the Mollen Commission's view, "the evidence
suggests that the . . . commanding officer not only tolerated, but encouraged,
this unlawful practice." The commission provided several examples of perjured
cover stories that had been suggested to a young officer by his supervisor:
Scenarios were, were you going to say (a) that you observed what
appeared to be a drug transaction; (b) you observed a bulge in the defendant's
waistband; or (c) you were informed by a male black, unidentified at this time,
that at the location there were drug sales.
QUESTION: So, in other words, what the lieutenant was telling you is
"Here's your choice of false predicates for the arrest."
OFFICER: That's correct. Pick which one you're going to use.
Nor was this practice limited to police supervisors. As the Mollen
Several former and current prosecutors acknowledged — "off the
record" — that perjury and falsification are serious problems in law
enforcement that, though not condoned, are ignored. The form this tolerance
takes, however, is subtle, which makes accountability in this area especially
The epidemic is conceded even among the highest ranks of law
enforcement. For example, William F. Bratton, who has headed the police
departments of New York City and Boston, has confirmed that "testilying" is a
"real problem that needs to be addressed." He also placed some of the
responsibility squarely at the feet of prosecutors:
When a prosecutor is really determined to win, the trial prep
procedure may skirt along the edge of coercing or leading the police witness.
In this way, some impressionable young cops learn to tailor their testimony to
the requirements of the law.
Many judges who listen to or review police testimony on a regular basis
privately agree with Judge Alex Kozinski of the United States Court of Appeals
for the Ninth Circuit, who publicly stated: "It is an open secret long shared
by prosecutors, defense lawyers and judges that perjury is widespread among law
enforcement officers," and that the reason for it is that "the exclusionary
rule . . . sets up a great incentive for . . . police to lie to avoid letting
someone they think is guilty, or they know is guilty, go free." Or, as Judge Irving Younger explained, "Every
lawyer who practices in the criminal courts knows that police perjury is
As these judges attest, this could not happen without active complicity
of many prosecutors and judges. Yet there is little apparent concern to remedy
that serious abuse of the oath to tell the truth — even among those
who now claim to be so concerned with the corrosive influences of perjury on
our legal system. The sad reality appears to be that most people care about
perjury only when they disapprove of the substance of the lie or of the
person who is lying.
A perfect example of selective morality regarding perjury occurred when
President George Bush pardoned former Secretary of Defense Caspar Weinberger in
1992, even though physical records proved that Weinberger had lied in
connection with his testimony regarding knowledge of Iran arms sales. Not only
was there no great outcry against pardoning an indicted perjurer, some of the
same people who insist that President Clinton not be allowed to "get away" with
lying were perfectly prepared to see Weinberger "get away" with perjury.
Senator Bob Dole of Kansas spoke for many when he called the pardon a
"Christmas Eve act of courage and compassion."
The real issue is not the handful of convicted perjurers appearing
before this committee, but the hundreds of thousands of perjurers who are never
prosecuted, many for extremely serious and calculated acts of perjury designed
to undercut constitutional rights of unpopular defendants.
If we really want to reduce the corrosive effects of perjury on our
legal system, the place to begin is at or near the top of the perjury
hierarchy. If instead we continue deliberately to blind ourselves to pervasive
police perjury and other equally dangerous forms of lying under oath and focus
on a politically charged tangential lie in the lowest category of possible
perjury (hiding embarrassing facts only marginally relevant to a dismissed
civil case), we would be reaffirming the dangerous message that perjury will
continue to be a selectively prosecuted crime reserved for political or other
A Republican aide to this committee was quoted by The New York
Times as follows:
"In the hearing, we'll be looking at perjury and its consequences, and
whether it is tenable for a nation to have two different standards for lying
under oath; one for the President and one for everyone else."
On the basis of my research and experiences, I am convinced that if
President Clinton were an ordinary citizen, he would not be prosecuted for his
allegedly false statements, which were made in a civil deposition about a
collateral sexual matter later found inadmissible in a case eventually
dismissed and then settled. If President Clinton were ever to be prosecuted or
impeached for perjury on the basis of the currently available evidence, it
would indeed represent an improper double standard: a selectively harsher one
for the president (and perhaps a handful of other victims of selective
prosecution) and the usual laxer one for everyone else.
1. Jerome Frank, Courts On Trial 85 (1949).
2. Many such defendants now have years added on to
their sentences under the federal guidelines, which add points for perjury at
3. Joseph D. McNamara, Has the Drug War Created an
Officer Liars' Club? Los Angeles Times, Feb. 11, 1996, at M1.
4. From Mark Curriden, The Lies Have It,
A.B.A. J., May 1995, at 71, quoted in Lisa C. Harris, Perjury Defeats
Justice, 42 Wayne L. Rev. 1755, 1768-69 (1996) (footnote omitted). See
also Hon. Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to
the Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35, 51 n.52
(1996) ("Perjury cases are not often pursued, and perhaps should be given
greater consideration by prosecuting attorneys as a means of enhancing the
credibility of the trial system generally."); Fred Cohen, Police Perjury: An
Interview With Martin Garbus, 8 Crim. L. Bull. 363, 367 (1972), quoted
in Christopher Slobogin, Testilying: Police Perjury and What to Do About
It, 67 U. Colo. L. Rev. 1037, 1060 n.13 (1996) ("…no trial lawyer that
I know will argue that police perjury is nonexistent or sporadic.")
5. Richard H. Underwood, Perjury: An
Anthology, 13 Ariz. J. Int'l & Comp. L. 307, 379 (1996).
6. See, e.g., Richard H. Underwood, False
Witness: A Lawyer's History of the Law of Perjury, 10 Ariz. J. Int'l &
Comp. L. 215, 252 n.157 (1993).
7. See, e.g., Underwood, id. at 223 and
accompanying note 37.
8. See Dershowitz, The Best Defense 67 (1982).
The chief of detectives of New York wrote a book about this case in which he
confirmed these facts. See Albert Seedman, Chief! (1974).
9. See Dershowitz, The Best Defense,
supra note 8, at 377. This was confirmed in a book entitled Prince of
the City (and a motion picture of the same name), whose contents were
approved by the policeman. See Robert Daley, Prince of the City
10. Commission to Investigate Allegations of Police
Corruption and the Anti-Corruption Practices of the Police Department, Milton
Mollen, Chair; July 7, 1994, at 36 [hereinafter Mollen Report]. The
report then went on to describe how officers reported a litany of manufactured
tales. For example, when officers unlawfully stop and search a vehicle because
they believe it contains drugs or guns, officers will falsely claim in police
reports and under oath that the car ran a red light (or committed some other
traffic violation) and that they subsequently saw contraband in the car in
plain view. To conceal an unlawful search of an individual who officers believe
is carrying drugs or a gun, they will falsely assert that they saw a bulge in
the person's pocket or saw drugs and money changing hands. To justify
unlawfully entering an apartment where officers believe narcotics or cash can
be found, they pretend to have information from an unidentified civilian
Id. at 38.
11. Mollen Report, supra note 10, at 41.
12. Mollen Report, supra note 10, at 42.
13. Boston Globe, November 15, 1995, at 1.
14. Stuart Taylor, Jr., For the Record,
American Lawyer, Oct. 1995, at 72.
15. Irving Younger, The Perjury Routine, The
Nation, May 8, 1967, at 596-97.
16. Elaine Sciolino, On the Question of Pardons,
Dole has Taken Both Sides, The New York Times, 16 Oct. 1996, at A15.
17. Eric Schmitt, Panel Considers Perjury and Its
Consequences, The New York Times, Nov. 28, 1998, at A13.
Contents | Text Version | Slobogin: Testilying