The "Perjury Trap"
[Vol. 129:624 THE "PERJURY TRAP" BENNETT L. GERSHMAN t "Any experienced prosecutor will admit that he can indict anybody at any time for almost anything before any grand jury." 1 "Save for torture, it would be hard to find a more effective tool of tyranny than the power of unlimited and un- checked ex parte examination." 2 Most experienced prosecutors would reject as nonsense the notion that they could indict anybody at any time for anything before any grand jury. They would, however, probably concede that their marksmanship improves when perjury is sought.3 That is the subject of this Article: the deliberate use of the grand jury to secure perjured testimony, a practice dubbed by some courts the "perjury trap." 4 f Associate Professor of Law, Pace University. A.B. 1963, Princeton University; L.L.B. 1966, New York University. The author gratefully acknowledges the assistance of his colleague Professor Judith Schenck Koffier. This Article is dedicated to Professor Robert Childres. I Campbell, Delays in Criminal Cases, 55 F.R.D. 229, 253 (1972), quoted in United States v. Mara, 410 U.S. 19, 23 (1973) (Douglas, J., dissenting) (identical dissenting opinion in United States v. Dionisio, 410 U.S. 1, 18 (1973)). 2 United States v. Remington, 208 F.2d 567, 573 (2d Cir. 1953) (L. Hand, J., dissenting), cert. denied, 347 U.S. 913 (1954). 3 "Perjury" is used in this Article to mean a witness's deliberately false swear- ing to a material matter in a judicial proceeding, here specifically a grand jury. Defined as such, six elements are required to prove perjury: (1) an oral statement; (2) that is false; (3) made under oath; (4) with knowledge of its falsity; (5) in a judicial proceeding such as a grand jury; (6) to a material matter.
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