Document Type

Article

Publication Date

2009

Keywords

prosecutorial discretion, defensive dishonesty, process offenses

Abstract

This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It sketches a conceptual framework for violations of 18 U.S.C. § 1001 and related false-statement charges, distinguishes between harmful deception and the typical investigative interaction, and describes the range of lies that fall within the wide margins of the offense. It then places these cases in a socio-legal context, suggesting that some false-statement charges function as penalties for defendants’ refusal to expedite investigations into their own wrongdoing. In those instances, the government positions itself as the victim of the lying offense and reasserts its authority through prosecution. Enforcement decisions in marginal criminal lying cases are driven by efficiency rather than accuracy goals, which may produce unintended consequences. Using false-statement charges as pretexts for other harms can diminish transparency and mute signals to comply. Accountability also suffers when prosecutors can effectively create offenses, and when it is the interaction with the government itself rather than conduct with freestanding illegality that forms the core violation. The disjunction between prosecutions and social norms about defensive dishonesty may also result in significant credibility costs and cause some erosion of voluntary compliance. Animating the materiality requirement in the statute with attention to the harm caused or risked by particular false statements could mitigate these distortions. An inquiry into the objective impact of a false statement might account for the nature of the underlying conduct under investigation, whether the questioning at issue is pretextual, whether the lie is induced, and whether the deception succeeds or could succeed in harming the investigation. By taking materiality seriously, courts could curtail prosecutorial discretion and narrow application of the statute to cases where prosecution harmonizes with social norms.