NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: DD, TF, 3 years, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, (in an affidavit) (in __________), (make) (subscribe) under lawful (oath) (affirmation) a false statement in substance as follows: __________, which statement (he) (she) did not then believe to be true.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused took an oath;
(2) That the oath was administered to the accused in a matter in which such oath was required or authorized by law;
(3) That the oath was administered by a person having the authority to do so;
(4) That upon the oath the accused (made) (subscribed) a statement, to wit: (set forth the statement as alleged);
(5) That the statement was false; and
(6) That the accused did not then believe the statement to be true.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
An “oath” is a procedure which appeals to the conscience of the person to whom the oath is administered and which binds that person to speak the truth.
(“Subscribe” means to write one’s name on a document for the purpose of adopting its words as one’s own expressions.)
NOTE 2: Corroboration instruction. When an instruction on corroboration is requested or otherwise appropriate, the judge should carefully tailor the following to include only instructions applicable to the case. Subparagraphs (1), (2), or a combination of (1) and (2) may be given, as appropriate:
As to the fifth element of this offense, there are special rules for proving the falsity of a statement. The falsity of a statement can be proven by testimony or documentary evidence by:
(1) The testimony of a witness which directly contradicts the statement described in the specification, as long as the witness’s testimony is corroborated or supported by the testimony of at least one other witness or by some other evidence which tends to prove the falsity of the statement. You may find the accused guilty of false swearing only if you find beyond a reasonable doubt that the testimony of (state the name of the witness), who has testified as to the falsity of the statement described in the specification, is believable and is corroborated or supported by other trustworthy evidence or testimony. To “corroborate” means to strengthen, to make more certain, to add weight. The corroboration required to prove false swearing is proof of independent facts or circumstances which, considered together, tend to confirm the testimony of the single witness in establishing the falsity of the oath.
(2) Documentary evidence directly disproving the truth of the statement described in the specification as long as the evidence is corroborated or supported by other evidence tending to prove the falsity of the statement. To “corroborate” means to strengthen, to make more certain, to add weight. The corroboration required to prove false swearing is proof of independent facts or circumstances which, considered together, tend to confirm the information contained in the document in establishing the falsity of the oath.
NOTE 3: Exceptions to documentary corroboration requirement. There are two exceptions to the requirement for corroboration of documentary evidence. Applicable portions of the following should be given when an issue concerning one of these exceptions arises:
An exception to the requirement that documentary evidence must be supported by corroborating evidence exists when the document is an official record which has been proven to have been well known to the accused at the time (he) (she) (took the oath) (made the affirmation).
(Additionally) (An) (Another) exception to the requirement that documentary evidence must be supported by corroborating evidence exists when the document was written or furnished by the accused or had in any way been recognized by (him) (her) as containing the truth at some time before the supposedly falsely sworn statement was made.
If (this exception) (these exceptions) exist(s), the documentary evidence may be sufficient without corroboration to establish the falsity of the statement.
You may find the accused guilty of false swearing only if you find that the documentary evidence (and credible corroborative evidence) establish(es) the falsity of the accused’s statement beyond a reasonable doubt.
NOTE 4: Proving that the accused did not believe the statement to be true. Once the appropriate corroboration instruction above is given, the military judge should give the following instruction:
The fact that the accused did not believe the statement to be true when it was (made) (subscribed) may be proved by testimony of one witness without corroboration or by circumstantial evidence, if the testimony or evidence convinces you beyond a reasonable doubt as to this element of the offense.
NOTE 5: Applicability of this offense. The offense of false swearing does not apply in a judicial proceeding or course of justice.
NOTE 6: False swearing as a lesser included offense. False swearing is not a lesser included offense of Article 131, Perjury.