DOJ Favors Defendants In Prosecution Change On Making False Statements


The U.S. Justice Department has quietly given a defendant-friendly makeover to the federal law that helped send Martha Stewart, Bernard Madoff and Rod Blagojevich to jail, reports the National Law Journal. The law makes it a crime to “knowingly and willfully” give false statements in any matter under federal jurisdiction. Judges and commentators have attacked this “catch-all” provision, known familiarly as “Section 1001” charges, for years as an easy trap prosecutors set for suspects when their case is otherwise weak.

The Justice Department got the message, clarifying that to make the case that a defendant acted “willfully,” the government must prove that he or she knew the statement was unlawful — not just that it was false. That requires a state-of-mind element that can be hard to nail down. Defendants often claim they were unaware that lying to the government was illegal, especially in casual conversations or when not under oath. “This is a very significant change that will assure that prosecutors use the statute consistently,” said Bryan Cave partner Mary Beth Buchanan, a white-collar defense lawyer and former U.S. attorney in Pennsylvania. “It’s a correction that should have been made a long time ago.” The Justice Department’s change of mind is slowly being felt. On April 21, the Supreme Court sent two cases back to lower courts “for further consideration in light of the confession of error by the solicitor general.” The court’s orders will likely set in motion a lengthy reassessment of false-statement precedents in most circuit courts.

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