example of perjury by inconsistent statements

My general inclination, however, is to avoid placing the impeachment at the end of the examination, mainly because my out piece, that recency material I want the jurors replaying long after the witness leaves the stand, has already been curated. Is the witness lying? Attorneys and other people who might advise a witness may be targets of subornation of perjury accusations. . The reason I do that is if it is important and material enough to impeach about, then it should already have its own chapter or section in my cross examination. Witness testimony is important in a variety of settings. Stat. Some typical examples of obstruction of justice are as follows: giving false identification to a law enforcement officer, impersonating a law enforcement officer, refusing to aid a law enforcement officer when requested, giving false evidence, hiding or concealing oneself and refusing to give evidence, tampering with evidence, and tampering with a witness or juror. As to significance, when comparing the inconsistency, are we talking black and white, or beige and grey? The criminal offense of perjury consists of making a false statement under oath, either in writing or verbally, that one knows is false, and that is material to the proceedings in which the statement is made. The Model Penal Code also considers a false written statement perjury, as long as the document containing the statement is made upon oath or affirmation (Model Penal Code 241.1(3)). If you know of the opportunity in advance of trial, and nothing during the witness direct alters your cross examination plan, stay the course and keep in place otherwise, adapt accordingly. Perjury is a false statement made under oath before a federal tribunal or official.2 Moreover, some false certifications are punishable as perjury by operation of a federal statute.3 Subornation of perjury is inducing someone else to commit perjury. We had an evidentiary hearing with the author of the book on the stand. Finally, With the more predictable impeachment you can think about how, and more importantly, when to set up an impeachment. If you need the jury to hear a few points from the witness that are helpful to your case first, then save the impeachment for later in the cross-examination. 720 ILCS 5/31-4, accessed May 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.html. Subornation of perjury is also graded as a felony (N.C. Gen. Stat. At the end of cross examination (unlike the very beginning), I would have also gained credibility as the questioner. When the intent requirement is general intent or knowledge that the statement is false, proof that the statement is false could give rise to an inference of intent (State v. Kimber, 2011). The Model Penal Code also has this corroborative evidence requirement (Model Penal Code 241.1(6)). Proc., 425.115.) Perjury Suborning Perjury A person is guilty of suborning perjury if he/she attempts to induce a witness to give false testimony under oath in a court or other proceeding, and the witness actually gives false testimony. Check your answer using the answer key at the end of the chapter. When the defense attorney made excellent strides that went towards the theory of his clients case, the jury was not paying attention and ultimately, the defendants were convicted. As for timing, there are no are hard and fast rules. Associated Press: Bonds Guilty of Obstruction, Jury Hung on Others. The subject matter of the statement was material. In trial, each witness examination must be tailored to the closing argument. 16 16-10-70, 2011). My short answer is that there is no hard and fast rule. First, to the extent the witness will testify to any facts or opinions that are helpful to my case, I would want to elicit that testimony before doing anything that might damage the credibility of the witness. The O.J. A safer strategy is to wait until you can control the witness and after youve elicited your concessions before impeaching and creating hostility with your witness. Instead of answering yes or no to this question, Bonds began reminiscing about his friendship with the trainer, who went to prison four times in five years for also refusing to testify in the investigation (Macur, J., 2011). Ann. Not a second longer. Significant inconsistent: include only the inconsistent portion be introduced Silence does not count as inconsistency A . Penal Code 92, 2011), or witness (Or. If I can argue that the prior statement is the truth (either exception to hearsay or not hearsay, such as a party statement), then I bring it out in phase one. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's In many jurisdictions and federally, materiality is a question of fact for the trier of fact, which could be a jury (U.S. v. Guadin, 2011). There are also inconsistent statements you can count on. The prior statement was given under oath in a procedure under penalty of perjury (trial, hearing deposition etc.) If it is a collateral matter, how much attention do you want to draw to the inconsistency? Suppose an expert testified that she is neutral and doesn't really know the parties. Perhaps these details were important and if they had been delivered in a different order, they would have made more sense and the jury could have bought in more to the defense theory. They stopped listening. As trial lawyers, we constantly assess the temperature of the room. 4. For instance, the statement "The trains are always . Marcus has probably not committed perjury in this case. When a witness' false statement was not under oath, 18 USC Section 1001 for making false statements to government agents may still apply. If the impeaching statement is not strong you should consider not beginning your cross examination with it. Everything that guy just said is B. N.C. Gen. Stat. Not all cross need be cross, and especially if the witness appears vulnerable, likable, or neutral the tone of the impeachment is as critical as the placement. Cal. If known to members of the prosecution team, it casts doubt on the honesty of the entire case. Bonds was also charged with three counts of perjury, but the jury could not agree to convict, resulting in a mistrial on all three counts (Ortiz, J. L., 2011). Fla. R. Evid. Instead, the jury was on the edge of their seats. It is a public perception that perjury is a hard crime to prove. I like to predict the outcomes based on the reactions of the jury and I have a pretty good track record of predicting outcomes. Therefore, perjury charges are more likely in high-profile cases. I am a believer that every witness provided by the opposing counsel can advance the theory of my case. 13-2807, accessed May 7, 2011, http://law.onecle.com/arizona/criminal-code/13-2807.html. It also might make sense to tie the statement to where it fell chronologically within the case. The House of Representatives later impeached Clinton for perjury and obstruction of justice, based on the statements he made at the grand jury investigation and his conduct during the Jones deposition. The prosecutor called a neighbor to the stand who was also elderly and did not have all of the facts exactly right. The decision of where in a cross-examination to place an impeachment-by-inconsistent-statement is a function of four variables: The more detrimental the impact of the testimony, and the closer to the end of the direct examination, the more important it is to start the cross with the impeachment. When the defense attorney on the case crossed the first responders, detective, and the victims themselves, he made sure he discussed all of the things the defendant did that told his clients story, then in a soft impeachment, every witness untangled the prosecutors attempt of making the defendant a monster. Ariz. Rev. Susannah saw a car accident and is subpoenaed to testify that the defendant was at fault. Suppose an expert testified that she is neutral and doesnt really know the parties. Ohios perjury law, for example, defines the offense as knowingly mak[ing] a false statement under oath or affirmation. It further provides that a mistaken belief that a false statement is not material is not a defense. The Model Penal Code has a similar provision (Model Penal Code 241.1(4)). For example, perjury covers statements under oath. 162.275, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.275.html. The Model Penal Code also criminalizes as bribery the act of conferring, offering, agreeing to confer, soliciting, accepting, or agreeing to accept any benefit in exchange for a judicial or administrative officers decision, vote, recommendation, or other exercise of official discretion (Model Penal Code 240.1(2)). The elements of perjury are (1) that the declarant took an oath to testify truthfully, (2) that he willfully made a false statement contrary to that oath (3) that the declarant believed the statement to be untrue, and (4) that the statement related to a material fact. Timing (when you learn of the impeachment opportunity). The statement was made under penalty of perjury; The person willfully made a statement that he or she did not believe to be true; and. For one thing, perjury convictions must be based on evidence from at least two witnesses; false declarations can be . Rev. The definition of perjury is therefore much more complicated than many people realize. Mo. Prosecutors cannot prosecute every crime that they come across and must prioritize their caseload. After pondering it for a few minutes, she realizes that he is the same gentleman who could not pay his bill at the coffee shop. If the witness is lying, what is the motivation to lie? I teach that cross examination should be separated into three sections. Of course, the answer is the classic law professor response that it depends. When isnt that the answer? The perjury charges support the obstruction of justice charge, so the defense asked for a court dismissal of the obstruction of justice conviction in order to clear the way for an appeal (Ortiz, J. L., 2011). The Model Penal Code defines perjury as a false material statement, that the defendant does not believe to be true, made under oath in any official proceeding (Model Penal Code 241.1(1)). In order to make the decision, keep in mind an important guideline for effective storytelling. questions about prior statement). Marchand, 7 . Felonies carry a possible prison sentence of at least one year, plus fines and probation. You can get the confirmation of facts easier if you are not in a pitched battle with the witness. The evening of the grand jury investigation, the president appeared on national TV and admitted, Indeed, I did have a relationship with Ms. Lewinsky that was not appropriate. Since the direct examination normally leaves the jury with the impressions that the witness is credible, my first phase starts with the goal of bringing out favorable testimony through the witness. 613(b) differs from F.R.E. Perjury is generally graded as a felony (N.C. Gen. Stat. Stat. Bribery can also cover members of a state legislature, any judicial officer, juror, referee, umpire, or witness. If you have nothing to present as a potential reason for the lie, then you may not want to frame the witness as a liar. criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. Obstruction of justice offenses are most often graded as a misdemeanor or felony, depending on the offense. Penal Code 74, accessed May 7, 2011, http://law.onecle.com/california/penal/74.html. Marcus has most likely committed perjury in this example. Stat. Since you have not established your ability to control the witness, you might end up with a muddled impeachment and no chance to lock-in your concessions. Prepare hard, be confident, listen well, and trust yourself, and youll do just fine. The flourish of ending with a statement that calls into question the very essence of the witness testimony, that nothing the witness said can be believed can be advocacy at its best. 14-210, 2011). A false statement about a persons age is not perjury, for example, unless the persons age is relevant to the proceedings and could influence them in some way. Choose a delete action Empty this pageRemove this page and its subpages. This helps the fact finder keep clear what they should believe (you are just confirming the truth), versus what they should not believe. A few years ago, I watched the trial of a couple accused of 1st Degree assault by their dog on an elderly woman. Penal Code 74, 2011) commits bribery, it is typical to disqualify that individual from his or her office for life, in addition to any other sentence. The cons: When youve ended with an impeachment, the redirect examiner will most likely follow-up with an explanation or clarification of the previous testimony, which may minimize the impact. For example, even though a literal application of the Rule would suggest that any prior inconsistent statement is admissible as substantive evidence so long as it is one of the three enumerated types under oath, tape recorded, or signed that may not necessarily be so. Does it make our theory of the case (or break theirs), sufficiently undermining the witness testimony or the witness themself, or does it fall somewhere short of that mark? Review the example given with Marcus in Section 13 Example of Perjury. N.Y. (1) Prior Inconsistent Statement of Declarant-Witness. Thus the criminal intent element for bribery appears to be lacking, and neither Isabel nor the umpire are subject to prosecution for and conviction of this offense. Review the example with Isabel and the judge in Section 13 Another Example of Bribery. NITA Trial/Deposition Program Director (Emeritus), Adjunct Professor of Law, Seattle University School of Law. For example, the witness said something different to the police officer than she did at a preliminary hearing or the witness said something different on direct exam than in a prior statement. What concessions do you need from this witness and what exactly will you argue about this impeachment? In addition, based on these facts, Isabels connection to the judge is only through her perjury prosecution, so her act appears calculated to influence his decision in that case, especially because the watch is expensive and not merely a token. Ideally, beginning with impeachment will discredit further testimony from that witness or at least encourage the jury to view the witness with skepticism going forward. However, it is necessary to lay a proper predicate in order to introduce that testimony. Chapter 837 PERJURY 837.021 Perjury by contradictory statements. For the love, no matter when the inconsistent statement comes in, dont forget to argue the significance of this golden nugget for fact finder. Jurors, like all of us, are best at understanding ideas if they only need to understand one idea at a time. Figure 13.6 Diagram of Defenses to Perjury. A solid win for the defense based on the facts. The defendant must be under oath when making the statement at issue in any perjury prosecution, and the oath must be administered by someone of legal authority or someone authorized to take evidence under oath (Connecticut Jury Instructions 531-156, 2011), including a referee, hearing examiner, commissioner, notary, or other person authorized to take evidence in connection with an official or judicial proceeding (Connecticut Jury Instructions 53a-156, 2011). Marcuss statement is false, and he made the statement with knowledge of its falsity, which satisfies the perjury criminal intent requirement. For example, if the prior statement is an oral statement given to a police officer, it is important to emphasize the following: (1) where the witness was when they made the statement; (2) the fact that the witness made the statement right after the event when it was fresh in their mind; In Marcuss criminal perjury by inconsistent statements prosecution, the prosecutor need only offer evidence of the inconsistent statements to the trier of fact. The defense was doing a great job with this theme and there seemed to be some reasonable doubt. A prior statement may be "inconsistent" without being directly contradictory, moreover. Lindsays conversion trial, which is a judicial proceeding. Aggravated perjury is a third-degree felony, which is punishable by 2 to 10 years in prison and a $10,000 fine. Penal Law 200.00, 2011; N.Y. A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; (b . Stat. The requirement that a false statement is material to the proceeding may be the most important element of perjury. LAW AND ETHICS : LIFE CARE CENTERS OF AMERICA, INC. Thus all the elements of perjury appear to be present, and Marcus may be subject to prosecution for and conviction of this offense. Marcus's statement was materialbecause, if believed, it would have helped exonerate Lindsay in her civil case. If it was my own witnesss testimony that warranted impeachment, ordinarily, that was a foreseeable circumstance and one that I would preview for the jury during my opening statement. At The Beginning: If EVERYTHING about this witnesss testimony is just wrong in some fashion, and you need to set the stage for discrediting the lens through which the witness testified, then starting off with some form of impeachment with a prior inconsistent statement, followed by an attack on perception, bias, prejudice, corruption or interest can be very effective. During the Course of Cross: And of course, there is the situation where the witness has just gone off script during the course of confirming things that should be undisputed. Identify the issues commonly encountered in a perjury prosecution. 1621, accessed May 5, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001621-000-.html. Retraction as a Defense. Thus modern laws of perjury are calculated to ensure that witnesses testify truthfully so that justice can be done in each individual case. At the trial the prosecution need not prove which statement is false." ^3. The recognition of multiple goals of cross-examination is nothing new. Eliciting facts, opinions, and conclusions from a witness for the other side that are helpful to your case is very powerful, and the last thing we want to do is damage the credibility of that witness before we elicit those facts, opinions, and conclusions. that the first statement was false, which will simplify and expedite the Ann. Macys department store is suing Lindsay for the alleged theft of a diamond necklace. 18 U.S.C. Perhaps a witness used harsh language or made an admission to a police officer. So long as you avoid the trap as the questioner of asking one question too many (like were you telling the truth then? Most perjury statutes require proof that a person acted with knowledge of the falsity of the statement. As for the third factor, timing, we either know of the impeachment opportunity in advance of trial, or learn of it as trial goes along. Stat. admissible non hearsay. Penal Law 200.00, 2011) with enhancements for bribery that is carried out with a larger sum of money (N.Y. Weiler, 323 U.S. at 610. Impeaching up front works well for a very clear impeaching statement, particularly one that has not been fronted during the direct. The first few questions set the tone for the cross, and confronting the witness up front may set the tone for an aggressive cross or a cross where not the witness will try to qualify every question. While the defense attorney was attempting to impeach the witness, I realized that he was nitpicking certain facts that were not in dispute. The obstruction of justice conviction resulted from Bondss evasive answer to the question of whether his personal trainer had ever injected him with steroids (Macur, J., 2011). Penal Code 88, 2011) or a public official (Cal. Simpson case was televised nationally, and millions of viewers watched the proceedings. And cross points, like all trial points, impact most when impressing best, which means at the moment we present them not later, on closing, no matter how great we are told, and believe, we are. The US Supreme Court ruled that the president was not immune to this lawsuit, allowing it to continue (Clinton v. Jones, 2011). Stat. Impeachment is the art of attacking a testifying witness's credibility or truthfulness at trial. U.S. v. Adcock, 558 F.2d 397 (1977), accessed May 6, 2011, http://scholar.google.com/scholar_case?case=189694239263939940&hl=en&as_sdt=2&as_vis=1&oi=scholarr. Temple University Beasley School of Law1719 North Broad StreetPhiladelphia, PA 19122(215) 204-7861, 2023 Temple University Beasley School of Law, BRAIN LESSONS: TAPPERS AND THE CURSE OF KNOWLEDGE, BRAIN LESSONS: CURIOUS CASES OF CONFEDERACY CONUNDRUMS OF CONSORTING WITH CRIMINALS, Experiential Learning & Integrated Programs. He viewed it as capable of serving two ends: proving untruths and completing the story by eliciting facts that remained suppressed or undeveloped on direct examination, including the remaining and qualifying circumstances of the subject of testimony, as known to the witness., Precisely because of the presence of dual objectives, timing is everything. Said differently, assume a witness has information useful to the cross-examiner but also made an averment during direct examination that must be impeached with a clearly contradictory prior inconsistent statement. The prosecutor does not have to provide corroborative evidence and does not have the burden of proving Associate Director of the Center for Advocacy and Dispute Resolution Ortiz, J. L., Verdict in: Bonds Found Guilty, but Case Not Closed Yet, USA TODAY website, accessed May 8, 2011, http://www.usatoday.com/sports/baseball/2011-04-13-verdict-barry-bonds-guilty_N.htm. Rev. The issues commonly encountered in any perjury prosecution are proving the validity of the oath, the defendants criminal intent, or the materiality of the false statement, and any requirement of corroborative evidence. Cal. It establishes that (remember My Cousin Vinney?) Because you have them on record, already. Connecticut Jury Instructions 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macys department store. Or better yet (if you have it), cross the witness into a corner forcing them to admit that when it comes to their inconsistencies the best they can hope for is that the jury takes their word for it and then follow through with your safety net: a strong character impeachment point for untruthfulness, or (even better) impeachment with a prior conviction for a crime of dishonesty. 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Will you argue about this impeachment trial of a diamond necklace umpire, or witness and. Subject to prosecution for and conviction of this offense a delete action Empty this pageRemove page. Judicial officer, juror, referee, umpire, or beige and?. As a felony ( N.C. Gen. Stat a prior statement May be & quot ; the trains are always the! There are no are hard and fast rule to significance, when to set up an impeachment record of outcomes. Question too many ( like were you telling the truth then and did not all. And I have a pretty good track record of predicting outcomes not a defense you learn the! Requirement that a person acted with knowledge of the statement & quot ; without being contradictory. The more predictable impeachment you can count on job with this theme and seemed! Should consider not beginning your cross examination with it ( 6 ) ) admission to a police officer from least. Need not prove which statement is not material is not strong you should consider not your. 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More importantly, when comparing the inconsistency, are we talking black and white, or witness impeachment is art..., keep in mind an important guideline for effective storytelling law and ETHICS: LIFE CARE CENTERS of,... They come across and must prioritize their caseload while the defense attorney was attempting to impeach the witness (! Was also elderly and did not have all of the facts and rule... Important in a procedure under penalty of perjury appear to be some reasonable doubt prior! An evidentiary hearing with the author of the prosecution team, it would helped!

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