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Random Sampler
The Whole Truth 
by Charles L. McClenahanWhen an actuary testifies at a rate hearing, in deposition, or in court, it is generally after swearing or affirming to tell "the truth, the whole truth, and nothing but the truth." The first and third of these promises are fairly straightforward. The second, however, is a bit problematic.
To tell "the truth" means that the answer will contain a truthful response to the question asked. For example: "I selected the linear trend in preference to the exponential trend because, in my opinion, it represented a better projection basis."
To tell "nothing but the truth" means that the truth will not be hidden within a response containing one or more untrue statements. It would be improper to testify that, "I selected the linear trend in preference to the exponential trend because, in my opinion, it represented a better projection basis and because Actuarial Standard of Practice (ASOP) No. 13 states that the linear trend is better than the exponential."
The "whole truth" is more difficult. Rarely will you hear the actuary respond, "I selected the linear trend in preference to the exponential trend because, in my opinion, it represented a better projection basis as it was greater than the exponential trend and I assumed that the hearing officer would not approve the entire indicated rate change so I built in some excess trend."
So, is the actuary who tells the truth and nothing but the truth, but who fails to tell the whole truth, guilty of perjury? 18 U.S.C. 1621 provides:
"Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both."
In 1973 the Supreme Court issued its decision in Bronston v. U.S., 409 U.S. 352, which revolved substantially around the following colloquy:
Q: Do you have any bank accounts in Swiss banks, Mr. Bronston?
A: No, sir.
Q: Have you ever?
A: The company had an account there for about six months, in Zurich.
Both of the answers were true, however Mr. Bronston had previously had a Swissbank account for a period of about five years. While the second answer was literally true, the District Court found Bronston guilty of perjury. The Court of Appealsupheld the conviction holding that "[f]or the purposes of 18 U.S.C. 1621, an answer containing half of the truth which also constitutes a lie by negative implication, whenthe answer is intentionally given in place of the responsive answer called for by aproper question, is perjury." The Supreme Court reversed, holding that Congress didnot intend that perjury include answers untrue solely by "negative implication" and pointing out that "the very unresponsiveness of the answer should alert counsel to press on for the information he desires" and that "[p]recise questioning is imperative as a predicate for the offense of perjury."
So unless the testifying actuary is asked whether there were any additional considerations that affected the trend factor selection, the failure to identify all of the elements underlying the selection does not constitute perjury.
This is probably a good thing. In my experience there are few hearing officers, judges, or juries with the patience to listen to the "whole truth" in an actuarial context. But it is important to distinguish between the situation above, where the answers were precise and the questions were misleading, and the following colloquy that involved an actuarial expert witness:
Q: In your professional opinion is it likely that [a specified event] will occur?
A: There is a probability that it will.
In this example, understanding that the specified event was unlikely to occur and that the actuarial expert knew it to be so, it was not the question but the answer that was cleverly designed to mislead.
Even though we may escape prosecution for perjury by answering questions truthfully, we have a professional obligation to honor in spirit the oath to tell the "whole truth." Section 3 of the revised version of ASOP No. 17 Expert Testimony by Actuaries,* states that "the actuary should act honestly, with integrity and competence, and in a manner to fulfill the profession's responsibility to the public, and should take reasonable steps to ensure that the expert testimony is not used to mislead other parties." This responsibility requires that the actuarial expert witness must not give answers that, although literally true, are misleading.
*Adopted by the ASB at its March 2002 meeting.