Attorneys and Subornation of Perjury

Federal law has made the crime of subornation of perjury depend on a showing that the suborned witness has made an intentional false statement under oath. For a prosecution to be successful, it must be shown first, that the witness gave false testimony under oath; second, that the witness knew the testimony to be false; third, that the defendant induced the false testimony; and fourth, that the defendant knew the induced testimony to be false. Thus, if the criminal intent of the witness cannot be proven, the defendant must be acquitted. The curious result is that the prosecution fails not because the defendant's conduct is found innocent, but because it is irrelevant. Because this problem of inducement of innocently false testimony commonly arises in the context of an attorney preparing a witness to testify, there are unique dangers to the proper administration of justice, which are neither prevented nor punished by the present federal subornation statute. Prosecutions under the current law, also, can provide little or no guidance in determining the distinction between proper coaching of witnesses and improper inducement of false testimony because this question is rarely, if ever, raised. Thus, unless the courts or Congress reconsider the construction and rationale of the existing subornation statute, other means must be sought to meet the particular subornation problem of inducing innocently false testimony.