The legal system is built on an underlying principle that all witnesses will provide truthful information to the decision-maker. This principle defines who may be a witness and when a witness may testify. Individuals who cannot understand the difference between a truth and a lie lack the capacity to testify. See Alaska Evidence of Rule 601. Witnesses who refuse to promise to tell the truth (by oath or affirmation) are prohibited from testifying. See Alaska Evidence Rule 603. All witnesses must understand the concept of the truth and affirmatively express a willingness to undertake the duty to tell the truth before testifying. This is one way the legal system ensures that every witness gives accurate and honest testimony.

Perjury

Perjury – a false statement made under oath – is the antitheses of a truth-seeking legal system. Punishing perjurers is necessary to protect the integrity of the legal system. See Lawson v. Helmer, 77 P.3d 724 (Alaska 2003).

Perjury occurs if a person makes a false sworn statement that they do not believe to be true. AS 11.56.200(a). The false statement need not be material to the outcome of the legal proceeding. Instead, the statement must be objectively false, and the person must know that the statement is false. See LaParle v. State, 957 P.2d 330, 335 (Alaska App. 1988). Thus, the statement “I believe the car was red” is a false statement if the defendant believed the car was a different color. The actual color of the car is irrelevant. The falsity of the statement does not depend on the actual color of the car. See commentary, Senate Journal Supp. No. 47 at 72 (June 12, 1978).

Perjury encompasses all false sworn statements, not just those statements made in court. See In re Ivy, 374 P.2d 374 (Alaska 2016). Thus, lying during a court proceeding, lying in an affidavit, or lying in a formal response to a civil interrogatory, all are acts of perjury. A sworn statement is simply a representation of fact given under oath, affirmation, or “penalty of perjury”. AS 11.56.240(2). The forum of the sworn statement is immaterial. All that is required is that the statement was knowingly false when given under oath or affirmation attesting to the truth of what was stated. AS 11.56.240(2).

Unsworn Falsification

A related, and likely lesser-included, offense is the crime of Unsworn Falsification. AS 11.56.205-210. Unsworn falsification prohibits making a false statement to a public servant, regardless of whether the statement was made under oath. Alaska has graded unsworn falsification into two degrees: first- and second-degree unsworn fasciation.

A person commits the crime of second-degree unsworn falsification if (1) the person makes a false statement, (2) with the intent to mislead a public servant in the performance of their duty, (3) that the person does not believe to be true, and (4) the statement is made in an application for a benefit or is made on a form bearing notice that false statements are punishable as such. AS 11.56.210. For example, if a person falsely states that they have lived in Alaska for 10 years in an effort to obtain a “resident-only” fishing license, the person is guilty of second-degree unsworn falsification, a class A misdemeanor. The person made a statement known to be false with the intent to mislead a public servant in an application for a benefit – the State’s resident fishing licensing preference.

Aggravated unsworn falsification (first-degree unsworn falsification) occurs if the false statement was made on an application for the Alaska Permanent Fund Dividend. AS 11.56.205(a). Knowingly providing a false statement on the permanent fund dividend application evaluates the crime from a misdemeanor to a class C felony. AS 11.56.205(c).

Neither perjury nor unsworn falsification requires corroboration. AS 11.56.200. A conviction can properly flow from the uncorroborated testimony of a single witness. This is a significant departure from prior law. The Alaska Supreme Court had previously stated that a perjury conviction must be corroborated by direct or circumstantial evidence; uncorroborated testimony – standing alone – was insufficient. See Nelson v. State, 546 P.2d 592 (Alaska 1976) (noting that allowing perjury convictions based on uncorroborated witnesses simply results in prosecutions of “an oath against an oath” and increases the likelihood of “ill-founded retaliatory attacks”). The Alaska Legislature expressly overruled this decision with the passage of the Revised Criminal Code. Now, a perjury conviction need not be based on a particular number of witnesses or a particular amount of documentary evidence. AS 11.56.200. A single witness is sufficient. This rule, of course, does not alter the government’s burden of proof. The government is still required to prove the defendant knowingly made a false sworn statement beyond a reasonable doubt. Thus, even though the law allows a perjury prosecution to proceed based solely on the testimony of a single witness, a perjury conviction in such cases may be difficult to obtain.

If a person makes two statements under oath or affirmation that are irreconcilably inconsistent, to the degree that one of them is necessarily false, but it impossible to identify which statement is false, the person is guilty of Perjury by Inconsistent Statements. AS 11.56.220. This crime resolves a potential impediment to a traditional perjury prosecution. Since the crime of perjury requires the defendant to make a specific false statement, the government must be able to prove that the particular statement was false. If the government is unable to identify the false statement, the defendant is not guilty of perjury. The crime of Perjury by Inconsistent Statements resolves this dilemma.

For example, consider a situation where Jones testifies to a grand jury that Brown came into his office and attempted to extort money from him. As a result of Jones’s testimony, Brown is indicted for extortion under AS 11.41.520. At Brown’s subsequent trial, Jones testifies that he has never met Brown, that Brown never came to his office and that no one attempted to extort money from him. If there is no other way to prove whether Brown came to Jones’s office to extort money, other than by the testimony of Jones, the state may not be able to convict Jones of perjury even though Jones’s two statements are irreconcilable to the degree that one of them must be necessarily false. Although Jones may not be guilty of perjury, he is guilty of perjury by inconsistent statements. Note that Brown’s criminal liability for extortion is separate and distinct from Jones’s criminal liability for perjury by inconsistent statements. See commentary, Senate Journal Supp. No. 47 at 74-75 (June 12, 1978).

Although perjury by inconsistent statements is a separate offense, the prosecution cannot simply rely on the introduction of the irreconcilable statements; the government must also establish that the defendant did not believe one of the statements to be true at the time the statement was made.

A person charged with perjury or a related offense may raise the affirmative defense of retraction. The defense is extremely limited and complex, but allows a person to retract a false statement before its falsity is known and before reliance on the statement has occurred. AS 11.56.235. Specifically, the affirmative defense is only available if the defendant expressly retracts the false statement during the course of the same proceeding and before the case is submitted to the ultimate trier of fact (e.g., grand jury or jury). AS 11.56.235. For example, a defendant may not raise the defense of retraction if, following the grand jury’s indictment, they contact the prosecutor in an effort to retract their earlier false grand jury testimony. The retraction did not occur during the same proceeding; the defendant is guilty of perjury. See e.g., Trinidad v. State, 1997 WL 688541 *2 (Alaska App 1997).