§710-1063 - Unsworn falsification to authorities.
§710-1063 Unsworn falsification to
authorities. (1) A person commits the offense of unsworn falsification to
authorities if, with an intent to mislead a public servant in the performance
of the public servant's duty, the person:
(a) Makes any written statement, which the person
does not believe to be true, in an application for any pecuniary or other
benefit or in a record or report required by law to be submitted to any
governmental agency;
(b) Submits or invites reliance on any writing which
the person knows to be falsely made, completed, or altered; or
(c) Submits or invites reliance on any sample,
specimen, map, boundary-mark, or other object the person knows to be false.
(2) Unsworn falsification to authorities is a
misdemeanor. [L 1972, c 9, pt of §1; gen ch 1993]
COMMENTARY ON §§710-1060 TO 1063
Efficiency and fairness of governmental operations and public
confidence in public administration, in general, and the administration of
justice, in particular, require that information which the government relies
upon not be falsified. Yet a general, undifferentiated penalty for all
falsification to governmental authorities would not reflect contemporary social
mores.
False
testimony and other misleading information to officials can convert
governmental power into an instrument of injustice rather than justice, with
unfortunate consequences not only for the individual whose life, freedom or
property may be affected, but also for the community's general sense of
security and confidence in the state. On the other hand, not all lying to
officials can usefully or safely be made criminal. Measures other than
punishment are our principal reliance against falsehood in judicial and other
proceedings, where cross-examination and the opportunity to produce evidence on
both sides of any issue facilitate the process of arriving at truth.[1]
It has been noted that a great difficulty in the law of perjury
has been the severity of the penalties specified by the statutes; "in some
situations falsification to officials is so widely practiced and tolerated by
prevailing moral standards that severe penalties would be
unrealistic."[2] For example, a person may claim domicile in a state in
order to obtain a divorce when the person's real intent is to satisfy the
minimum requirement of physical presence and to leave the state as soon as the
decree is obtained. It is essential to distinguish between minor and more
aggravated forms of false swearing.
General analysis. These sections divide falsification
into four different offenses of three different grades depending on the
presence of aggravating circumstances.
The offense of perjury, a class C felony, requires (a) a
false statement which the court determines to be "material," (b) made
under an oath, (c) in an official proceeding. This is the most serious offense
and the only felony in this Part. Other forms of falsification, whether under
oath or not, are graded as misdemeanors or petty misdemeanors. Falsification
before a court, legislative committee, administrative agency, or other official
proceeding, as defined in §710-1000(12), is deemed more culpable and more
socially dangerous than similar falsity in a report, license application, or
like matter, especially when these types of statements are often prepared by a
lawyer.[3]
A false statement made under oath may constitute a
misdemeanor if (a) it is made in an official proceeding, or (b) it is made with
intent to mislead a public servant in the performance of the public servant's
official duty. The statement need not be a "materially false
statement." The offense is labeled false swearing to authorities.
False swearing, a residual offense, makes all other false
statements, made under an oath required or authorized by law, a petty
misdemeanor. In addition to other cases, this offense would cover
falsification in a written statement which, pursuant to a requirement or
authorization of law, has been sworn to before a notary, in a strictly private
transaction. It would also cover a false affidavit filed with the government
but not in an official proceeding, regardless of materiality or intent to
mislead.
The final offense in this quartet does not require that the
statement be under oath. Indeed, that statement need not be written; the
falsification can be in the form of submission of, or invitation to rely on,
false samples, specimens, maps, boundary-marks, or other objects. However, the
falsification must be made with intent to mislead a public servant in the
performance of the public servant's official duty.
Mens rea with respect to the truth of the statement.
Under the offenses in this Part, a defendant is not held liable for a false
statement made inadvertently or out of ignorance. For penal liability to
occur, the defendant's state of mind with regard to the truth of the statement
must be a lack of an affirmative belief in the truth of the matter asserted.
The defendant need not know the falsity of the statement, it would be
sufficient for conviction if the defendant had no belief with regard to the
statement's truthfulness. The defendant may have no idea whether or not the
defendant's statement is true; but a lack of belief that it is true will
support a conviction. The state of mind required is, in effect, a reckless
disregard of the truth of the matter asserted. However, the requisite
culpability is not expressed with the word "reckless" because
applying that word, as defined in §702-206(3), presents certain difficulties
when applied to the falsification offenses of this Part. As the commentary to
the Model Penal Code explains the problem:
We have
chosen to specify the mental state of lack of belief, in this section, rather
than rely on the general definition of "recklessness" in [Section
702-206(3)], for two reasons. First, it requires considerable mental agility
to construe [Section 702-206(3)] as applied to perjury, and second, we are
satisfied that once lack of belief is established, no further inquiry into
"justification" or "degree of culpability" would be
useful.[4]
The nature of the oath requirement. The requirement
or authorization of an oath is an implied instruction by the Legislature to the
individual making the statement that the information requested is of special
significance, and that special sanctions will attend any falsifications. Since
the oath's significance rests partially upon the legislative directive, it
follows that an oath which is attended by penal sanctions ought to be one which
is specifically required or authorized by law.[5] A public servant or private
individual could not, as a matter of local policy or individual whim, require
an oath without any basis in law and thereby make falsifications thereunder
subject to these sanctions.
Section 710-1000(10), defining "oath," is
specifically designed to provide government agencies with a convenient method
of demanding the truth in applications and registrations without resort to
cumbersome procedures of requiring oaths before notaries. With regard to the
function of these falsification offenses, it should not matter whether the
State's special emphasis on receiving truthful information is indicated by a
requirement of an oath or affirmation, or by written notice on a government
form. The notice of special significance of the requested information and the
warning of special sanctions are the same in either case.
Materiality; intent to mislead. Materiality with
regard to a false statement (required for a perjury conviction) and an intent
to mislead a public servant (required for one form of false swearing in
official matters and for all forms of unsworn falsification to authorities) are
similar in their functional role: each limits the application of an offense
when the falsification is not likely to obstruct justice or which is trivial.
On the other hand, the terms are not synonymous. A person may not intend to
mislead, yet the person's falsification may be material.
Materiality of the falsification distinguishes perjury, a
felony, from the lesser offenses in this Part. Given the requisite state of
mind with regard to truthfulness of the statement, falsification, in an
official proceeding, which is material, constitutes the greatest risk of
obstruction of justice. A "materially false statement" means:
any false
statement, regardless of its admissibility under the rules of evidence, which
could have affected the course or outcome of the proceeding.[6]
Section 710-1060 holds the actor strictly liable with regard
to the actor's knowledge of a false statement's materiality. Materiality is
not made an element of the offense; it is not a fact which the trier of fact
must find, but a question of law for the court to determine.[7] Beyond the
difficulty of proving a culpable state of mind with regard to this factor, the
importance of the examination of witnesses in judicial and quasi-judicial
proceedings is such that it is extremely unwise to allow a witness to decide
what may or may not be material. Witnesses are usually not qualified to make
judgments on materiality in the technical sense in which that concept is here
employed. A crucial quality of an official proceeding, as defined in
§710-1000(12), is that the hearing presents the "opportunity to test the
credibility of witnesses by questioning that may begin, or wander, far from the
central theme."[8] As the commentary to the Proposed Michigan Criminal
Code states:
A witness who
falsifies an answer to a quite distant question he considers irrelevant may be
blocking the eventual trial to relevant truth, thereby defeating one of the
principal values of the hearing. Where, on the other hand, the false statement
is made on a written application or report submitted to the government, there
is considerably less likelihood that the actor will be confused about the
materiality of the information given.[9]
One form of false swearing to authorities, §710-1061(1)(b),
and all forms of unsworn falsification to authorities, §710-1063, require that
the actor have an intent to mislead a public servant in the performance of the
public servant's official duty. The falsification need not be material, but
the actor's intent is crucial. Trivial falsifications which (1) do not impair
the examination process of an official proceeding, and (2) are not intended to
mislead the public servant, do not warrant the misdemeanor sanction. These
falsifications are penalized, if at all, as false swearing (§710-1062), a petty
misdemeanor.
The nature of the statement required.
"Statement" is defined in §710-1000(16) to mean:
any
representation, but includes a representation of opinion, belief, or other
state of mind only if the representation clearly relates to state of mind apart
from or in addition to any facts which are the subject of the representation.
A prosecution for perjury or other offense defined by this Part
can be based on a statement of opinion or belief. The definition of
"statement" is intended, however, to preclude liability based on the
following logic: (1) the declarant states that X is so; (2) the declarant's
statement includes, implicitly, a statement that the declarant believes X to be
so; (3) although there is no evidence that X is not so, the declarant may be
liable because the declarant did not believe X to be so. "The possibility
of such prosecutions is disquieting.... [T]he making of true statements which
the declarant believes to be false can hardly obstruct justice...."[10]
Previous Hawaii law. Previous Hawaii law defined
perjury as "wilfully, knowingly and falsely stating... some material fact
on oath where the oath is required or authorized by law."[11] While there
has been very little judicial interpretation of the requirements of
"wilfully, knowingly and falsely," stating the fact, the potential
confusion with regard to (1) the meaning of "wilfully," as it relates
or adds to "knowingly," and (2) the actor's knowledge of the
statement's materiality or falsity, is largely obviated by the language of the
Code. The Code provides a needed definition of "materiality" which
is in substantial accord with court interpretation of that requirement.[12]
Like the Code, previous law provided that the oath must be authorized or
required by law.[13]
The former sanction of a possible twenty years'
imprisonment[14] seems entirely disproportionate to the severity of the
offense. Especially in light of the above discussion of overly severe
penalties, a maximum penalty which is equivalent to the Code's penalty for
murder, rape in the first degree, and kidnapping, probably tends more to
undermine certainty of application than it does to deter perjury. As the
National Conference of Commissioners on Uniform State Laws has said:
[A] great
difficulty in administering the law of perjury has been the severity of the
penalties specified by the statutes. In the less aggravated forms of perjury,
much could be gained in effectiveness and respect by making penalties less
severe in the books and more frequently applied in the court rooms.[15]
The Code's class C felony sanction for perjury is in accord
with that of the Model Penal Code and recent penal revisions.[16]
No provision is made in this Code for subornation of
perjury.[17] Such cases are adequately covered by the sections dealing with
solicitation.[18] Furthermore, if perjury is committed following the
solicitation, the suborner will be liable for the offense of perjury itself on
the basis of the suborner's complicity in, and responsibility for, the conduct
of the declarant.[19]
Under previous Hawaii law, all false swearing was either
punished as perjury, or not at all. The Code adds to the law two lesser
offenses, and grades the falsifications according to the culpability of the
defendant and the tendency of the falsification to subvert the administration
of justice or the performance of official duty. The Code also adds an offense
covering unsworn falsification to authorities. These three new offenses cover
wide gaps in the prior law relating to falsification.
__________
§§710-1060 To 1063 Commentary:
1. M.P.C., Tentative Draft No. 6, comments at 100 (1957).
2. Id.
3. Prop. Mich. Rev. Cr. Code, comments at 394.
4. M.P.C., Tentative Draft No. 6, comments at 126 (1957).
5. See Prop. Mich. Rev. Cr. Code, comments at 390-391.
6. §710-1000(9).
7. §710-1060(2).
8. M.P.C., Tentative Draft No. 6, comments at 126 (1957). Note
that this reasoning would favor imposition of criminal liability regardless of
the materiality of the statement: the Code in fact does this by the
misdemeanor offense of false swearing to authorities (§710-1061), if the false
swearing occurs in an official proceeding, and by the general residual petty
misdemeanor offense of false swearing (§710-1062), which makes any false
statement under oath an offense.
9. Prop. Mich. Rev. Cr. Code, comments at 398.
10. M.P.C., Tentative Draft No. 6, comments at 117 (1957).
11. H.R.S. §756-1.
12. See The King v. Angee, 8 Haw. 259 (1891) and In re French,
28 Haw. 47 (1924) (dictum).
13. But see commentary to §710-1068, infra, on the effect of
irregularities in administering the oath.
14. H.R.S. §756-5.
15. The National Conference of Commissioners on Uniform State
Laws, Model Act on Perjury, Prefatory Note (1952), quoted in M.P.C., Tentative
Draft No. 6, comments at 102 (1957).
16. M.P.C. §241.1; N.Y.R.P.L. §210.15; Prop. Del. Cr. Code
§722; Prop. Mich. Rev. Cr. Code §4905; Prop. Pa. Cr. Code §2102.
17. See H.R.S. §756-3.
18. Cf. §705-510, et seq.
19. Cf. §702-221, et seq.