Hourie v. State

Moylan, J., delivered the opinion of the Court. A healthy legal system should strive constantly for greater harmony and should, even when it cannot always eliminate existing disharmony, avoid adding new disharmony. It is against the backdrop of that ideal that we review the convictions of the appellant, Georgeine Emilio Hourie, for welfare fraud and false swearing. She was tried by Judge Donaldson C. Cole, Jr., sitting without a jury, in the Circuit Court for Talbot County.

She was convicted of nine separate charges and given concurrent sentences as to each. The nine convictions break out into two discrete categories: (1) a conviction under the sixteenth count for welfare fraud; (2) convictions under the first eight counts for violations of Md.Ann.Code Art. 88A, § 62 (a) (1979 & Supp. 1981). That section reads, in pertinent part: "Every application for money, . .. food stamps, ... or other assistance . . . shall be in writing and signed by the applicant. Any person who in making and signing such an application makes a false or fraudulent statement with intent to obtain any such money,... food stamps,... or other assistance is guilty of perjury and upon conviction therefor is ⁶⁴ subject to the penalties provided by law for perjury.” The crime is loosely labeled "welfare perjury.” The appellant’s first contention questions the legal sufficiency of the evidence to convict on those eight counts of welfare perjury.

The challenge is twofold. The appellant first attacks the legal sufficiency of the evidence, under the ordinary test for measuring legal sufficiency, to sustain the convictions for welfare perjury. The appellant then mounts the additional and very narrow legal challenge that even granting the adequacy of the evidence under a normal standard of review, the evidence is nonetheless insufficient in the special case of perjury because of the "two-witness rule” governing perjury trials. This challenge calls upon us to examine the origins of that two-witness rule, its purpose (if any), and, consequently, its applicability to this case.

There is room for such considerations of policy, for we are not bound by stare decisis. This is because we are not dealing literally with common law perjury. Common Law Perjury Common law perjury was and is the giving of a false oath in a judicial proceeding in regard to a material matter. R. Perkins, Criminal Law 454 (2d ed. 1969); State v. Mercer, 101 Md. 535 , 61 A. 220 (1905).

Its dim beginnings are to be found in the ecclesiastical courts. Its essential nature was the violation of an oath sworn before God. 1 The original perjurious oath was, moreover, not the false oath of a witness (for witnesses were a yet-unheard-of development in the trial practice of the day) but the false oath of the jury, when it was deemed to have returned a bad verdict contrary to its oath. The birth of the modern concept of perjury by a witness ⁶⁵ can be traced to the statute of 11 Hen. VII, c. 21 in 1495. 4 W. Holdsworth, A History of English Law 517-518 (1924).

For the next century and a half, the high misdemeanor 2 of perjury was developed almost exclusively in the prerogative court of the Star Chamber. T. Plucknett, A Concise History of the Common Law 459 (5th ed. 1956). It sought to guard society’s interest in the integrity of sworn statements in judicial proceedings. It was limited to the false testimony given under oath about a material matter and before a judicial tribunal.

When, as an integral part of the larger Seventeenth Century struggle of Cromwell versus King, of Parliamentarian versus Royalist, and of Puritan dissent versus Established Church, the common law triumphed over and virtually obliterated its rival legal system of the prerogative courts, 3 the Court of Star Chamber was abolished in 1640. 4 Much of the productive output of the Star Chamber, however, especially the development of the major misdemeanors, was recognized as worthy of preservation and was taken over by the common law courts. The misdemeanor of perjury was one of those legacies from the now-dead Civilian tradition. By the time that perjury was firmly settled in its new common law home (the early 1700’s) it was noted that it, alone among the legacies, had brought with it from its Civilian origins, the ⁶⁶ procedural baggage of the "two-witness rule.” 5 By accident or by design, a defendant could not be convicted of perjury except upon the testimony of two witnesses. Of all the crimes prosecuted at the common law, perjury was unique in this special burden of production. 6 False Swearing It was over a century after the reception of perjury into the common law, that English judges began to recognize related problems with respect to the integrity of sworn statements that came to be required in man}' matters other than judicial proceedings.

The common law responded to this newly perceived need by providing a penalty for wilful and corrupt false swearing in such nonjudicial settings. The name "perjury” was not employed for the new crime. It was generally known as "false swearing.” R. Perkins, Criminal Law 454-455 (2d ed. 1969). 7 In Rex v. De Beauvoir, 7 Car. & P. 17, 173 Eng.Rep. 8 (1835), Lord Denman said of such a case, "It is not, properly speaking, perjury because the same consequences do not attach. But it is a misdemeanor in falsely taking an oath which a party is required by Parliament to take before a magistrate.” Professor Perkins defined the newer crime: "False swearing is what would be perjury except that it is not in a judicial proceeding but in some other proceeding or matter in which an oath is required by law.” R. Perkins, supra, at 454.

We can find no evidence that the two-witness rule of per ⁶⁷ jury was ever applied to prosecutions for false swearing; in candor, we find no evidence to the contrary either. The subject has simply not attracted significant attention. The All-Embracing Maryland Statute One thing is certain. The Maryland statute proscribing perjury now embraces both common law perjury and also those various other false oaths that would have constituted false swearing.

Md.Ann.Code Art. 27, § 435 (1982) provides: "An oath or affirmation, if made willfully and falsely in any of the following cases, shall be deemed perjury: First, in all cases where false swearing would be perjury at common law; secondly, in all affidavits required by law to be taken; thirdly, in all affidavits to accounts or claims made for the purpose of inducing any court or officer to pass the accounts or claims; fourthly, in all affidavits required to be made to reports and returns made to the General Assembly or any officer of the government; fifthly, in all affidavits or affirmations made pursuant to the Maryland Rules or Maryland District Rules.” (Emphasis supplied.) The statute in part declares the common law and in part supplements it. 8 Perjury was part of the common law to ⁶⁸ which the inhabitants of Maryland became entitled in 1776 by Art. 5 of our Declaration of Rights. Deckard v. State, 38 Md. 186, 201-202 (1873). As Judge Orth (specially assigned) pointed out for this Court in State v. Levitt, 48 Md.App. 1, 9 , 426 A.2d 383 (1981), "In the statute, perjury encompasses common law perjury as well as other acts which at common law constituted the lesser crime of false s wearing.” Some of the acts proscribed by the statute are not common law perjury. They are, however, indisputably part of "the perjury family.” The Question With respect to common law perjury proper, the English burden (in mildly relaxed form) has been the traditional Maryland burden as well.

Brown v. State, 225 Md. 610 , 171 A.2d 456 (1961). It is only where the perjury is proved by circumstantial evidence, that the common law burden is inapplicable. Smith v. State, 51 Md. App. 408 , 443 A.2d 985 (1982). The issue of first impression before us is whether that two-witness rule (in its relaxed form) should be held to embrace the entire perjury family or should be limited to common law perjury. 9 This narrow crevice of unresolved law is one wherein courts, in the words of Justice Holmes, legislate interstitially. 9A As we do so, a decent respect for the process dictates that we set out the principles that will guide us.

If this extraordinary burden of production is found to be the bright new vision of the future or to serve a necessary or beneficent purpose, we will give it an expansive reading and hold it to cover not only the core crime but the statutory penumbra as well. If, on the other hand, we find it to be an incongruous oddity, entombed like some ancient fly in amber and pre ⁶⁹ served beyond its time by a fluke of history, we will confine it strictly within the bounds dictated by stare decisis. The Answer We find the latter to be the case. In opting for tight containment, we are convinced that the two-witness rule is an alien from a long-dead world that was, during the English Civil War, accidentally caught in a time warp.

The scholarship on this strange history is almost exclusively the thoughtful product of Dean Wigmore. 10 The case law, unfortunately, is little more than the mindless application of scissors and paste, with no intervening critical judgment. It is the classic conflict between the statesman and the file clerk, between the thinker and the computer. Under the general heading of "Synthetic (or Quantitative) Rules,” Wigmore demonstrated meticulously that the civil law (including its English manifestations) was one where the "process of proof rested fundamentally on a numerical system,” id. at 325; that the common law, by way of contrast, ultimately rejected that mode of proof in favor of "the rational notion of analyzing and valuing testimony other than by numbers,” id. at 331; and that the single exception to the triumph of the qualitative over the quantitative analysis was truly of accidental origin. "By the common law, there was but a single instance, and that a borrowed and modern one, of almost accidental and of anomalous origin (the rule in perjury), in which a numerical rule existed.” Id. at 325.

(Emphasis supplied.) Two Rival Legal Systems This contrast in the modes of proof employed by the two rival legal systems is but part of the more basic, systemic contrast between them. Roman law, developing by the third century and reaching its apex with the Corpus Juris Civilis of Justinian in 600, by the late Middle Ages held in its sway ⁷⁰ all of Western Europe south and east of the Channel. Through the pervasive influence of the Church, it crossed even to England and became the legal system utilized in the vast network of ecclesiastical courts. Even following the religious Disestablishment of 1536, that civil law was still the system prevailing in the three prerogative courts of (1) High Commission, (2) Star Chamber, and (3) the whole apparatus of the Equity courts.

By contrast, the home-grown common law, as a totally different system, came into being in the 1150’s and controlled the practice essentially before the King’s Bench (for criminal trials) and the Court of Common Pleas (for civil trials). For almost five centuries, these rival systems vied for the affections of England and consequently for the affections of the entire, future common law world. The contrast between them was stark. Over one, there presided judges; over the other, chancellors.

The respective fraternities of lawyers who practiced before them were as separate from each other as if they had been members of different professions; only a very rare lawyer was able "to cross the street” between the two systems. The highly sophisticated civil law was learned at Oxford and Cambridge and its practitioners were known as Doctors of Civil Law; the rougher, more ad hoc common law was learned clinically at the Inns of Court. The languages spoken were not the same. What one system knew as plaintiffs, defendants, declarations, answers, and writs of error, the other system knew as petitioners, respondents, bills, responses, and appeals.

The dominant feature of the common law was the institution, civilly and criminally, of trial by jury; the civil law never knew the jury trial. A direct product of trial by jury was the common law’s ultimate reliance upon the qualitative approach to fact finding, whereas the civil law never moved beyond the older quantitative approach with its reliance upon counting the number of witnesses. Wigmore described the post-medieval cynicism toward the oath out of which the quantitative approach to proof grew. The law in that day thought "of the oath as a formal act, mechanically and ipso facto efficacious ... and quantitative ⁷¹ in its nature.” Id. at 327.

(Emphasis supplied.) Under that formalistic approach, "a degree of greater certainty is thought to be attained, not by analyzing the significance of each oath in itself and relatively to the person, but by increasing the number of the oaths.” Id. at 329. Though sometimes there were weighted scales for measuring oaths "between persons of inferior and superior rank, 11 ... [when it came to] persons of the same rank, one oath was equal to any other oath, with no distinctions based on their testimonial equipment for the case in hand.” Id. The Quantitative System at Work Under that system, the fact finder did not assess credibility or weigh evidence. Each oath was mechanically assigned an equal weight.

As Sir James Fitzjames Stephen pointed out in 1 A History of the Criminal Law of England 399-400 (1883), "The opinion of the time seems to have been that if a man came and swore to anything whatever, he ought to be believed unless he was directly contradicted.” The natural consequence of this uncritical arithmetic is that the "ecclesiastical law developed the numerical principle freely, and elaborated many specific rules as to the number of witnesses necessary in various situations.” 7 J. Wigmore, supra, at 326. Under the numerical system, "a single witness to a fact was in general not sufficient; for the majority of issues or material facts, two witnesses sufficed; specific numbers of witnesses were in certain cases required; and in some regions, and for some purposes, the weight to be given each witness’ testimony was measured and represented in numerical values, by counting even halves and quarters of a witness.” Id. at 325. Whatever the upper limits may have been, the civil law "had adopted the general rule that one ⁷² witness alone was insufficient upon any material point.” Id. As a part of that civil law tradition, the crime of perjury was not singled out for any special treatment.

Its two-witness rule was simply a particular instance of the universal burden of production within the civil law system. Wigmore observed that it "is surprising to us today to note how long this conception of the oath ... persisted,” and that what "is material to our purpose is that as a popular notion and instinctive mental attitude it was still in almost full force in the 1500s, at the time when the conflict of the common law and the ecclesiastical system came upon the stage.” Id. at 330. (Emphasis in original.) The Common Law Rejects the Quantitative Approach Although the common law itself flirted intermittently with the quantitative measurement of proof throughout the 1500’s, it had, by the end of that turbulent century, firmly turned its face away from "a principle of evidence now generally acknowledged to be unsound and futile.” Id. at 325. The departure from the more ritualistic approach was not an easy one.

"Only by a slow and comparatively recent development came the rational notion of analyzing and valuing testimony other than by numbers.” Id. at 331. By the time of the English Civil War, however, the course to be taken by the common law was sure. "After the middle of the 1600s there never was any doubt that the common law of England in jury trials rejected entirely the numerical system of counting witnesses and of requiring specific numbers.” Id. at 333. (Emphasis in original.) Dean Wigmore had no difficulty in applauding the soundness of the choice made by the common law.

His condemnation of the rejected mode of measuring proof was certain. "The probative value of a witness’ assertion is utterly incapable of being measured by arithmetic.” Id. at 338. "Conceding the occasional dangers of trusting a single witness, a curative rule requiring two witnesses, or formal corroboration of a single witness, is not sufficiently ⁷³ efficacious to overcome the new dangers and disadvantages which are thereby introduced.” Id. at 339. Wigmore recounts the Napoleonic reform whereby the numerical approach to proof of the civil law was abolished for the Rhine Province, with the French Emperor stigmatizing the rejected rule in the following words: "Thus one honorable man by his testimony could not prove a single rascal guilty; though two rascals by their testimony could prove an honorable man guilty.” Id. at 339 n. 3.

Dean Wigmore offered his general summary, at 342: "What we must conclude, then, is that our whole presumption should be against any specific rule requiring a number of witnesses, or corroboration of a single witness; that such arbitrary measurements are likely to be of little real efficacy and to introduce disadvantages greater than those which they purport to avoid....” Dean Wigmore also spelled out the general features of the qualitative system, at 342-348: "The common law, then, in repudiating the numerical system, lays down four general principles: (1) Credibility does not depend on numbers of witnesses: Therefore: (2) In general, the testimony of a single witness, no matter what the issue or who the person, may legally suffice as evidence upon which the jury may found a verdict. (3) Conversely, the mere assertion of any witness need not be believed, even though he is unimpeached in any manner, because to require such belief would be to give a quantitative and impersonal measure to testimony. (4) As a corollary of the first proposition, all rules requiring two witnesses, or a corroboration of ⁷⁴ one witness, are exceptions to the general principle.” (Emphasis in original.) The general approbation of this proof-weighing system we now enjoy was well expressed by the Supreme Court in Weiler v. United States, 323 U.S. 606, 608 , 65 S.Ct. 548 , 89 L.Ed. 495 (1945): "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 fact-finding 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.” To this effect, see also Shelton v. State, 198 Md. 405, 412 , 84 A.2d 76 (1951); Weaver v. State, 226 Md. 431 , 174 A.2d 76 (1961); Williams v. State, 5 Md.App. 450, 458 , 247 A.2d 731 (1968). A Relic Found in a Bottle With the qualitative approach having decisively swept the field, how then did this single relic from the vanquished system survive? Again, Dean Wigmore has furnished the explanation.

It is twofold. The crime of perjury was left a homeless waif with the abolition of the Star Chamber in 1640; it was not until the early 1700’s that the waif had found a secure new home within the common law. In its earlier life, it had operated under the two-witness rule as did every other crime in the civil law tradition. So firmly were its procedural incidents identified with the crime itself, however, that those incidents remained attached to it through the transition from ⁷⁵ the old home to the new.

The timing of that transition was significant. The energetic wave of reform and reappraisal that saw the qualitative mode triumph over the quantitative within the common law, had largely spent its force and accomplished its mission before the fortuitously late arrival of perjury within that system. Perjury and its procedural incidents went largely unnoticed, all the more so because perjury itself was, in the relative scheme of crimes, far from the most dramatic and far from the most frequent in terms of its incidence. Another factor also came to bear upon this accident of timing.

During the early struggle between the qualitative and the quantitative modes of proof, the champions of the qualitative cause had used the unusual role of early jurors to beat down the quantitative argument. At the time the jury system was born and for several centuries thereafter, the twelve jurors were considered to be themselves witnesses to the crime. They did not need to rely passively on proof brought in from outside but were thought of as twelve self-starting investigators. When, therefore, even a single independent witness gave evidence of guilt, the argument was made that the most stringent quantitative requirement had been abundantly satisfied by adding the twelve juror-witnesses to the one independent witness.

This argument, of course, could never be made for offenses triable at the civil law without the benefit of a jury. Although this notion of twelve additional witnesses as enough to satisfy any numerical burden of production is obviously not the modern rationale for the qualitative mode, it played a pivotal role in the earlier debate. By the early 1700’s, however, English jurors had largely settled into their modern roles as passive auditors rather than active investigators (and, therefore, witnesses). One of the key arguments for the qualitative approach had, therefore, lost its driving momentum by the time that perjury was brought within the fold.

Perjury, in short, came into the common law late enough to have escaped the initial surge of change but early enough to have been spared our ⁷⁶ latter-day rationale for the supremacy of the new mode of proof. For survival purposes, the two-witness rule had been in the right place at the right time. "An Oath Versus An Oath” A second accident compounded the first and gave the rejected quantitative approach one faint gleam of residual allure with respect to perjury trials uniquely. The second accident was probably a necessary increment, for the other orphans from the Star Chamber — forgery, conspiracy, and attempt — were not allowed to bring their old procedural baggage with them into the new home.

This second quirk of fate was that at the time the perjury rules became solidified, a criminal defendant was not competent to take the stand in his own defense. It is only by recent statutory enactment that criminal defendants are permitted to testify. 12 With respect to all crimes other than perjury, therefore, the earlier trial situation was that the testimony of a single witness for the prosecution was not counterbalanced by any testimony from the defendant. The accountant mentality understood that one preponderated over nothing. A very special condition prevailed in the perjury trials, however.

There, the allegedly perjurious oath of the defendant was in evidence. The oath asserted its own truthfulness. When a single prosecution witness, therefore, took an oath to its untruthfulness, there was the quantitative standoff of one oath versus one oath. Though the accountant mentality could accept the fact that one preponderated over nothing, it was clear to that mind-set that one could not preponderate over one.

In a time, therefore, when the recent past had widely considered one oath as good as any other, the surface plausibility of the notion of two contradictory oaths ⁷⁷ cancelling each other out, created a massive "hang up” for the perjury trial. 13 Its ghost haunts us to this day. The father of the law of evidence, Baron Gilbert, stated in his Evidence 151 (1st ed. 1726), ".. . for one man’s affirming is but equal to another’s denying, and where there is no jury to discern of the credibility of the witnesses, there can be no distinction made.” As early as 1693, Fanshaw’s Case, Skinner 327, 90 Eng.Rep. 146, stated, "There being but the oath of the prosecutor, and so oath against oath, the defendant was acquitted.” 14 In 1736, Lord Hardwicke spoke to the same effect in Rex v. Nunez, Cas. t. Hardw. 265, 266, 95 Eng.Rep. 171, "[0]ne witness ... is not sufficient... because one man’s oath is as good as another’s.” The fullest statement to this effect in the case law comes probably from Chief Justice Parker in 1713 in Reg. v. Muscot, to Mod. 192, 194, 88 Eng.Rep. 689: "There is this difference between a prosecution for perjury and a bare contest about property, that in the latter case the matter stands indifferent, and therefore a credible and probable witness shall turn the scale in favor of either party. But in the former, presumption is ever to be made in favor of innocence, and the oath of the party will have a regard paid to it until disproved.

Therefore, to convict a man of perjury, a probable, a credible witness is not enough; but it must be a strong and clear evidence, and more numerous than the evidence given for the defendant; for else there is only oath against oath.” 15 (Emphasis supplied.) ⁷⁸ The glaring invalidity of this "oath versus an oath” non sequitur is clear to the modern mind. If there were vitality ⁷⁹ to the argument, we should have to adopt a two-witness rule for the prosecution of every crime, now that criminal defendants are competent to testify in their own defense. 16 ⁸⁰ Whenever the single witness to a murder, rape, or robbery swears, "He did it,” and the defendant swears, "No, I didn’t,” there is the old quantitative standoff of an oath versus an oath. 17 This does not trouble us in the least. We overcome an oath (or even many oaths) with an oath all the time. The modern resolution to the problem of proof is to rely upon fact finders, in their unfettered discretion, to judge credibility and weigh evidence.

We guard the liberty of the criminally accused not by some ancient and artificial burden of production but by allocating the burden of persuasion to the State and by establishing that burden at the "beyond a reasonable doubt” level. Before modern thought could be brought to bear on the problem, however, the special rule for perjury trials had put down deep roots. 18 As each decade slavishly intoned the words of its predecessor, no one stopped to rethink the problem or ever to ask, "Why?” In law, inertia generates a force ⁸¹ all of its own. That which for a long time is, comes to be thought of as that which should be. The Critical View Those few who have thought the problem through, however, are disdainful of the rule as an utterly discordant note in present-day jurisprudence.

Dean Wigmore referred to this "exceptional doctrine for proof of perjury” and to "its incongruity with modern ideas.” 7 J. Wigmore, supra, at 360. He pointed out that, " 'Oath against oath,’ as a reason for the rule, is indefensible.” Id. at 361. 19 In United States v. Palese, 133 F.2d 600, 602 , (3d Cir. 1943), Judge Maris observed that "it is inconsistent to hold that evidence which is of the quality sufficient to hang a man for murder is insufficient to convict him of perjury.” The New York Law Revision Commission in its 1935 Report (Legislative Documents 1935, No. 60), at 322, referred to the special burden of production for perjury cases, "It is an anomalous carry-over of the ancient notions of the ecclesiastical courts concerning the required number of witnesses.” In rejecting the rule in the State of Minnesota (for cases based on circumstantial evidence), State v. Storey, 148 Minn. 398, 402-403 , 182 N.W. 613, 615 (1921), commented: "Notwithstanding the high authority above cited, we are of the opinion that the rule laid down is out ofharmonywithour systemofjurisprudence. . . .We find ourselves unable to approve the doctrine that peijury is a more heinous crime than murder or that one charged with peijury should have greater immunity than one charged with murder. Suppose, for example, the only eyewitness to a murder should testify that the accused is not the man who committed the crime, and yet the circumstantial evidence of guilt is so strong that the jury convicts of first degree murder. With what consistency can it ⁸² be said that a quality of testimony which will justify a court in condemning a defendant to life imprisonment, or, in some jurisdictions, to be hanged, is insufficient to sustain a conviction of the falsifier of the crime of perjury for which he may suffer a penalty of a short term of imprisonment? .. .

We hold that perjury may be proved by circumstantial evidence, if proof is made beyond reasonable doubt, as in the case of other crimes.” Arizona reformed its law legislatively. Ariz. Rev. Stat. § 13-2707 (1978) now provides: "Proof of guilt beyond a reasonable doubt is sufficient for perjury or false swearing and it shall not be necessary that proof be made by a particular number of witnesses or by documentary or other type of evidence.” Vermont rejected the rule for cases based on circumstantial evidence in State v. Woolley, 109 Vt. 53, 62-63 , 192 A. 1, 5 (1937): "A prosecution for perjury ought not, in reason, to be hedged about with technical rules which do not apply to prosecutions for other and quite as serious crimes. It should not be necessary to produce a different sort of evidence to prove the falsity of an oath than to prove the commission of a homicide.” In Cohen v. United States, 27 F.2d 713 (2d Cir. 1928), Judge Learned Hand, in refusing to extend the extraordinary burden of production for perjury to the subornation element in a trial for subornation of perjury, analyzed incisively the irrationality of the rule and why, therefore, it should not be expanded, saying at 714: "It is a doctrine alien to the common law, imported from ecclesiastical, and eventually from civil, law procedure ....

Until its abolition in 1640, Star Chamber had in practice had exclusive jurisdiction over perjury, and its procedure was taken from the ⁸³ ecclesiastical courts. . . . There were practical reasons why the doctrine should be taken over, along with the jurisdiction, which were later rationalized into the notion that one oath would do no more than balance the other. Perhaps, too, the fact that perjury was an offense cognizable by spiritual courts may have contributed. Nevertheless, Russell (volume 1, p. 478) says that it never was the practice to extend it beyond the assignments of perjury....

We can see no reason not to accept the gloss, made in ignorance of its historical origin, as a proper limitation in application. The doctrine itself has indeed a rational basis when applied to mere recantations, though it must be owned that, if extended to the oath of another than the perjured witness, it is hard to justify in a court of common law.” A Chilling Effect on Reckless Charging In an effort to be evenhanded, Dean Wigmore searched for any reasons of policy that might now argue for retaining the rule, even if there had not been valid reasons for its initial adoption. Although he found it unconvincing, he cited W. M. Best, Evidence §§ 605-606 (1849) and Weiler v. United States, 323 U.S. 606 , 65 S.Ct. 548 , 89 L.Ed. 495 (1945), for the proposition that defeated litigants may be all too quick to allege perjury and that the additional impediment to its proof will have a healthy chilling effect upon such vindictive mischief. The fear now seems illusory.

The institutionalization of the charging mechanism in America, as opposed to the private prosecution of crime that was for long permitted in England, effectively forestalls the danger of reckless charging. There is no reason to suppose that grand juries and prosecuting attorneys do not approach the possible indictment for perjury with the same concern, great or small, with which they approach possible indictment for any other crime. Wigmore remained adamant that the "rule is in ⁸⁴ its nature now incongruous in our system.” 7 J. Wigmore, supra, at 361. It Is An Ordinary Crime As crimes go, there is nothing especially grave about perjury.

In terms of its harmful consequences and its potential punishment, it pales beside murder, rape, armed robbery, and dozens of other offenses. It is a misdemeanor and not a felony. As an infamous crime 20 subjecting one to disenfranchisement, 21 it shares the distinction with petty larceny, not to mention every felony and many nonfelonious crimes in the mystic category of crimen falsi. A convicted peijuror, to be sure, does lose the competence to testify in a court of law. 22 Peijury is not special because it sullies the wellsprings of government; so do fraud, bribery, public corruption, malfeasance in office, and the obstruction of justice.

What then makes it special? Much of the case law strangely takes on almost reverential tones when it refers to the fact that peijury was, after all, a "high misdemeanor,” subconsciously stressing the adjective "high” and not the noun "misdemeanor.” The cold reality is that the awesome power of the phrase "high misdemeanor” only works its spell upon those who have no idea what it means. 23 A high misdemeanor is still lower than a low felony. Peijury is, in short, an ordinary crime. The "Weight of Authority” Argument Some will maintain that even if the special quantitative burden was accidental and is illogical, it is nonetheless today ⁸⁵ the "weight of authority.” 24 A refreshing response to such an argument was that of the Supreme Court of Delaware in Marvel v. State, 33 Del. 110 , 131 A. 317 (1925).

In holding that the two-witness rule (even in relaxed form) was once "at least consistent with the quantitative theory of evidence” but that "the reasons for such rule have long since disappeared,” that court recognized that it was opposing the weight of authority: "We readily admit that the adherents of the old rule requiring direct and positive evidence of two witnesses or of one witness duly corroborated, are numerically superior.” 131 A. at 319 . It perceived its duty, however, as that of making its own qualitative, critical judgment: "fl]t becomes our duty to carefully examine the cases upon the subject, with particular attention to the reasons underlying the decisions, and to adopt for this State such a rule as is consonant with our situation and condition and in harmony with modern principles of criminal law.” Id. at 318. Judge Rodney, in rejecting the two-witness rule, decried the fact that "a foreign growth upon the rule developed under the quantitative theory of evidence, a theory which had to do with the quantum rather than with the character of the evidence.” He recognized that Delaware’s view was in the minority: "Opposed to this doctrine are many text books and much dicta in opinions quoting general rules.” Id. at 319. ⁸⁶ Delaware, nonetheless, held its lines: "We think, however, our holding is logical, consistent and amply supported by authority.” Id. Age As A Raison D’Etre The final argument for retention is that the rule, for better or for worse, "is deeply rooted in past centuries.” Weiler v. United States, 323 U.S. at 608 .

The only necessary response to this Rule of Inertia is the observation of Oliver Wendell Holmes: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” The Path of the Law, 10 Harv. L.Rev. 457, 469 (1897). The Scope of Any Extension If the case for retaining the two-witness rule (even in relaxed form) for common law perjury itself is weak, a fortiori the case for extending it to myriad new situations is nonexistent.

The imjpact of an expansive interpretation would be