1. The Court adheres to the rule which bars a conviction of
perjury on the uncorroborated testimony of a single witness.
Hammer v. United States, 271 U. S. 620. P.
323 U. S.
609.
2. In a prosecution for perjury, the federal district court
erred in refusing the defendant's requested instruction to the
effect that, in order to convict, the falsity of the statement made
under oath must be established by the testimony of two independent
witnesses or by one witness and corroborating circumstances. P.
323 U. S.
610.
3. This Court is unable to say that the error of the district
court in refusing the requested instruction was harmless.
Goins
v. United States, 99 F.2d 147, distinguished. P.
323 U. S.
611.
143 F.2d 204 reversed.
Certiorari,
post, p. 694, to review the affirmance of a
conviction of perjury.
Page 323 U. S. 607
MR. JUSTICE BLACK delivered the opinion of the Court.
This Court stated in
Hammer v. United States,
271 U. S. 620,
271 U. S. 626,
that
"The general rule in prosecutions for perjury is that the
uncorroborated oath of one witness is not enough to establish the
falsity of the testimony of the accused set forth in the
indictment."
The question here is whether it is reversible error to refuse to
charge the jury to this effect.
The petitioner was convicted of perjury in a federal district
court. [
Footnote 1] In a prior
criminal proceeding for violation of Office of Price Administration
regulations, he had testified that he had neither bought nor had in
his possession in March, 1942, certain automobile tires. He further
testified that, although he had signed a notarized letter in which
he stated that he had purchased the tires, he was not in reality
the purchaser, but had merely lent the money for their purchase,
and had signed the letter as an accommodation. The jury acquitted
him, and he was then indicted for perjury. The indictment charged
that his testimony with reference to the tire transaction was
false. In the perjury trial, the petitioner reiterated his former
testimony as to the tire transaction. Several government witnesses
gave testimony from which the jury could have found that petitioner
was in fact the purchaser.
When the evidence was completed, petitioner requested the trial
judge to give the following instruction to the jury:
"The Government must establish the falsity of the statement
alleged to have been made by the defendant under oath, by the
testimony of two independent witnesses or one witness and
corroborating circumstances. Unless that has been done, you must
find the defendant not guilty. "
Page 323 U. S. 608
This instruction was refused, and the trial judge, in his oral
charge, completely omitted any reference to the "two witness rule"
in perjury cases. The petitioner was convicted, and the Circuit
Court of Appeals affirmed on the ground that it was for the court
to determine whether the quantitative rule of evidence in perjury
had been satisfied, that it had been satisfied in this case, and
that, consequently, the District Court had properly refused the
requested charge. 143 F.2d 204. Other Circuits have held that
similar charges should be given.
Pawley v. United States,
47 F.2d 1024, 1026;
Allen v. United States, 194 F. 664,
668.
In granting certiorari, 323 U.S. 694, we limited review solely
to the question of whether the trial court erred in denying this
charge.
First. The government asks that we reexamine and
abandon the rule which bars a conviction of perjury on the
uncorroborated testimony of a single witness. The argument is that,
while this quantitative rule, as particularly applied to perjury
cases, may have been suited to the needs of the 18th Century, it
has long since outlived its usefulness, that it is an incongruity
in our modern system of justice, and that it raises an
unjustifiable barrier to convictions for perjury.
Our system of justice rests on the general assumption that the
truth is not to be determined merely by the number of witnesses on
each side of a controversy. In gauging the truth of conflicting
evidence, a jury has no simple formulation of weights and measures
upon which to rely. The touchstone is always credibility; the
ultimate measure of testimonial worth is quality, and not quantity.
Triers of fact in our factfinding tribunals are, with rare
exceptions, free, in the exercise of their honest judgment, to
prefer the testimony of a single witness to that of many.
The special rule which bars conviction for perjury solely upon
the evidence of a single witness is deeply rooted in
Page 323 U. S. 609
past centuries. [
Footnote 2]
That it renders successful perjury prosecution more difficult than
it otherwise would be is obvious, and most criticism of the rule
has stemmed from this result. It is argued that, since effective
administration of justice is largely dependent upon truthful
testimony, society is ill served by an "anachronistic" rule which
tends to burden and discourage prosecutions for perjury. Proponents
of the rule, on the other hand, contend that society is well served
by such consequence. Lawsuits frequently engender in defeated
litigants sharp resentments and hostilities against adverse
witnesses, and it is argued, not without persuasiveness, that rules
of law must be so fashioned as to protect honest witnesses from
hasty and spiteful retaliation in the form of unfounded perjury
prosecutions.
The crucial role of witnesses compelled to testify in trials at
law has impelled the law to grant them special considerations. In
order that witnesses may be free to testify willingly, the law has
traditionally afforded them the protection of certain privileges,
such as, for example, immunity from suits for libel springing from
their testimony. [
Footnote 3]
Since equally honest witnesses may well have differing
recollections of the same event, we cannot reject as wholly
unreasonable the notion that a conviction for perjury ought not to
rest entirely upon "an oath against an oath." The rule may
originally have stemmed from quite different reasoning, but
implicit in its evolution and continued vitality has been the fear
that innocent witnesses might be unduly harassed or convicted in
perjury prosecutions if a less stringent rule were adopted.
Whether it logically fits into our testimonial pattern or not,
the government has not advanced sufficiently cogent reasons to
cause us to reject the rule. As we said in
Hammer v. United
States, supra, 271 U. S.
626-627,
"The application
Page 323 U. S. 610
of that rule in federal and state courts is well-nigh universal.
The rule has long prevailed, and no enactment in derogation of it
has come to our attention. The absence of such legislation
indicates that it is sound, and has been found satisfactory in
practice. [
Footnote 4]"
Second. The court below held, and the government argues
here, that it is solely the function of the judge finally to
determine whether a single witness and sufficient corroborative
evidence have been presented to sustain a conviction. Two elements
must enter into a determination that corroborative evidence is
sufficient: (1) that the evidence, if true, substantiates the
testimony of a single witness who has sworn to the falsity of the
alleged perjurious statement; (2) that the corroborative evidence
is trustworthy. To resolve this latter question is to determine the
credibility of the corroborative testimony, a function which
belongs exclusively to the jury. [
Footnote 5] Thus, to permit the judge finally to pass upon
this question would enable a jury to convict on the evidence of a
single witness, even though it believed, contrary to the belief of
the
Page 323 U. S. 611
trial judge, that the corroborative testimony was wholly
untrustworthy. Such a result would defeat the very purpose of the
rule, which is to bar a jury from convicting for perjury on the
uncorroborated oath of a single witness. It is the duty of the
trial judge, when properly requested, to instruct the jury on this
aspect of its function in order that it may reach a verdict in the
exercise of an informed judgment.
Cf. Bruno v. United
States, 308 U. S. 287. The
refusal of the trial judge to instruct the jury as requested was
error.
Third. It is argued that this error did not prejudice
the defendant. We cannot say that it did not. The jury convicted
without being instructed that more than the testimony of a single
witness was required to justify their verdict. This was no mere
"technical" error relating to the "formalities and minutiae" of the
trial.
Bruno v. United States, supra, 308 U. S.
293-294. We are not authorized to look at the printed
record, resolve conflicting evidence, and reach the conclusion that
the error was harmless because we think the defendant was guilty.
That would be to substitute our judgment for that of the jury and,
under our system of justice, juries alone have been entrusted with
that responsibility. Nor are we compelled to conclude that this
error was harmless because of our action in
Goins v. United
States, 306 U.S. 622, by which we left undisturbed a holding
of the Circuit Court of Appeals that Goins, convicted for perjury,
had not been prejudiced by the refusal of a charge on the two
witness rule.
Goins v. United States, 99 F.2d 147. That
case was decided on the basis of its own peculiar facts, and cannot
be extended to the facts of this one.
Reversed.
[
Footnote 1]
18 U.S.C. § 231, defines the federal offense of perjury.
[
Footnote 2]
Wigmore on Evidence, Third Edition, §§ 2030-2044.
[
Footnote 3]
See also 8 Wigmore,
supra, Sec. 2195g.
[
Footnote 4]
After a careful study made by a joint Parliamentary Committee
looking to a codification of English criminal laws, it unanimously
recommended, and Parliament passed, the following law:
"A person shall not be liable to be convicted of any offence
against his Act, or of any offence declared by any other Act to be
perjury or subornation of perjury, or to be punishable as perjury
or subornation of perjury solely upon the evidence of one witness
as to the falsity of any statement alleged to be false."
Perjury Act, 1911, 1 & 2 Geo. V, c. 6, sec. 13, Public
General Acts, 1st & 2nd Geo. V, 1911; Parliamentary Debates,
Lords, Vol. VII, 1911, pp. 143-146; Reports from the Joint Select
Committee of the House of Lords and the House of Commons on the
Licensing (Consolidation) Bill and the Perjury Bill (H.L.), 1910,
No. 321, p. 62.
Cf. State v. Storey, 148 Minn. 398, 182
N.W. 613;
Marvel v. State, 3 W.W.Harr. 110, 33 Del. 110,
131 A. 317.
[
Footnote 5]
See State v. Hill, 223 N.C. 711, 28 S.E.2d 100;
Brown v. State, 101 Tex.Cr.R. 639, 644, 276 S.W. 929;
Clower v. State, 151 Ark., 359, 236 S.W. 265;
Madden
v. State, 26 Okl.Cr. 251, 223 P. 716.