16, 16-10-70, 2011). Tex. Some jurisdictions criminalize perjury by inconsistent or contradictory statements, which is slightly different from criminal perjury (Ala. Code 13-10-104, 2011).3 Perjury by inconsistent statements is easier to prove than traditional perjury because the prosecution can simply offer evidence that the defendant made statements that are inconsistent, in a judicial proceeding, after taking a validly administered oath. Rev. See also United States v. The first step is always to decide what you will argue in closing about the witness. This section analyzes perjury, bribery, and obstruction of justice, along with the issues commonly encountered when prosecuting these offenses. 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. If I had evidence that the witness actually had a personal relationship with my opposing party, I would start the cross there. Assistant Director, Trial Advocacy Program. Assume for a moment that at trial, on direct examination, the Plaintiff testifies that when he went through the light it was green; however, when the Plaintiff testified during his deposition he testified that he couldnt remember what color the light was. U.S. v. Gaudin, 515 U.S. 506 (1995), accessed May 5, 2011, http://scholar.google.com/scholar_case?case=12281686524757008977&hl=en&as_sdt=2&as_vis=1&oi=scholarr. However, it would not be perjury if your witness statement was about what you have heard and not seen. Check your answers using the answer key at the end of the chapter. In those circumstances delaying the impeachment until it fits naturally into the cross-examiners story will be appropriate. Susannah saw a car accident and is subpoenaed to testify that the defendant was at fault. Penal Code 92, accessed May 6, 2011, http://law.onecle.com/california/penal/92.html. 837.021 Perjury by contradictory statements. Slightly inconsistent: exclude it b. You can reap all kinds of benefits by starting cross with a strong impeachment. Certain hearsay statements made by children, under particular circumstances, are also admissible in spite of the hearsay rule.. All these acts are generally supported by specific intent or purposely or general intent or knowingly. Smith, Director of our Trial Advocacy Program, insists rightly that the trial lawyer necessarily filters most every advocacy decision through the prism of it depends, including when on cross examination to impeach a witness with a prior inconsistent statement. Cal. State and federal penalties for perjury include fines and prison terms upon conviction. Ala. Code 13A-10-108, accessed May 5, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-108.html. The first type of perjury involves statements made under oath, and requires proof that: The second type of perjury involves unsworn statements, and requires proof that: State laws defining perjury are generally similar to the federal statute. Once you decide that, its easier to find the right sequence for the impeachment. Federal law defines two types of perjury, each of which has multiple elements. You will also establish that everything the witness says should be called into question. Review the statutes in the endnotes for common elements and grading of these offenses. The subject matter of the statement was material. 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. 67 162.275, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.275.html. Subornation of perjury is also graded as a felony. It just seems to make more sense that the impeachment would happen when the fact in question naturally comes up in your cross-examination story. And then, decide whether to impeach right then and there, while the iron is hot; whether to flag the inconsistency aloud, raise the level of suspense, but hold back, for just a while, until you decide its the right time to return to that impeachment; or whether the better course is to not say a word at all at the time to save it, put it in your pocket and unleash the impeachment at the moment you calculate (feel) it serves your case and client best. 5A-11, et seq., 2011), resisting arrest (18 Pa. Cons. For example:! Sex crimes against children. If the witness is one whom the jury should distrust, I tend to proceed with the impeachment at the very beginning of the cross-examination so that the remainder of the testimony is viewed as incredible, inconsistent, or potentially tainted. Perjury is a Class A misdemeanor, which is punishable by up to a year in the county jail and a $4,000 fine. Identify the issues commonly encountered in a perjury prosecution. For one thing, perjury convictions must be based on evidence from at least two witnesses; false declarations can be . The statement was given to intentionally mislead the court and the witness was aware of the effect of the statement ie the witness knew the statement was untrue. You should make a list of each statement made by the other party that you believe to be false. Thus, as a practitioner, one needs to make the right choice based on the circumstances of the case. Wong, 431 U.S. 174, 180 (1977) (recognizing that perjury is never a protected option). As trial lawyers, we constantly assess the temperature of the room. The defense was doing a great job with this theme and there seemed to be some reasonable doubt. Deposition excerpts, Jones v. Clinton deposition, Historyplace.com website, accessed May 9, 2011, http://www.historyplace.com/unitedstates/impeachments/jones-deposition.htm. In that trial is competitive storyshowing in context, H.T. Penal Law 295.10, 2011), giving false evidence (720 ILCS 5/31-4, 2011), hiding or concealing oneself and refusing to give evidence (720 ILCS 5/31-4, 2011), tampering with evidence (Or. Is the prior inconsistent statement on a pertinent matter or a collateral matter? If so, you may not want to start with the impeachment because it will color everything else the witness says. For instance, the statement "The trains are always . If a witness testifies, and is subject to cross-examination, then that witness's prior inconsistent statement is exempted from the hearsay definition, but only if it was made under oath, subject to the penalty of perjury, and made at a trial, hearing, or other proceeding, or in a deposition. Weiler, 323 U.S. at 610. 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. When a state legislator (Cal. It also forces a predictable move by your opponent. Marcus has probably not committed perjury in this case. The Contractor shall perform the Work in . In modern times, every state prohibits perjury, as well as the federal government (18 U.S.C. I teach that cross examination should be separated into three sections. The jury became upset and turned away. When done quickly, and with precision, the witness learns rapidly that the answer to any question you ask is yes. Ann. Obstruction of justice offenses are most often graded as a misdemeanor or felony, depending on the offense. Perjury by inconsistent statements is when the defendant makes statements that are inconsistent (criminal act), in a judicial proceeding (attendant circumstance), after taking a validly administered oath (attendant circumstance). My client spent several more years in prison while we sorted out the appeals. Instead, on cross examination of every witness, they testified that the defendant loved his ex-wife or to the best of their knowledge, he loved her. Felonies carry a possible prison sentence of at least one year, plus fines and probation. The prior statement was given under oath in a procedure under penalty of perjury (trial, hearing deposition etc.) 2011] CONVICTIONS BASED ON LIES 335 presented false testimony calls into question the value of all the testimony given by the lying witness. Many jurisdictions provide a defense to perjury if the defendant retracts his or her false statement in the course of the same proceeding in which it was made before it becomes manifest that the falsification will be exposed. For example, lying under oath that you do not wear glasses could be considered perjury when you are testifying about what you have seen. Stat. The exception here may be if two conditions are met the testimony will be branded a mistake rather than a lie and there are so many positive points to elicit from this witness that an initial attack will sound discordant. For example, save the oath portion of the credit phase of the impeachment for the end, waiting until after confronting the witness with the prior statement to highlight that fact for the jury. You can get the confirmation of facts easier if you are not in a pitched battle with the witness. Therefore, perjury charges are more likely in high-profile cases. If known to members of the prosecution team, it casts doubt on the honesty of the entire case. Examples of inconsistent statement Marcus's jurisdiction criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. A solid win for the defense based on the facts. Gearan, A., Clinton Disbarred by Supreme Court, Famguardian.org website, accessed May 9, 2011, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm. While the defense attorney was attempting to impeach the witness, I realized that he was nitpicking certain facts that were not in dispute. Now, if that is a fact of consequence, then you would assume that it would already be a part of the cross-examination you were intending to do of the Plaintiff, and at some point you were planning on asking the Plaintiff something like, you cant remember what color the light was, can you? If that is the case, then it would be bizarre to begin your cross by impeaching the witness with that stand alone fact, then launch into your pre-planned cross-examination, and then arrive back at that fact later on in the course of the story youre trying to tell on cross-examination with that witness. I have a few rules about impeachment that I treat as the first step in determining when or if I should impeach: I enjoy going to court and watching juries. Perjury is committed when a witness lies while under oath in a court hearing. When the Macys attorney asks Marcus what he was doing at Macys, Marcus responds that he was buying some jewelry as a gift for his wife. 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. Impeaching up front works well for a very clear impeaching statement, particularly one that has not been fronted during the direct. People perjure themselves if they make a false or misleading statement under oath, or sign a document that they know to contain false or misleading statements. Ohios perjury statute defines material as something that could affect the course or outcome of the proceeding. The U.S. Supreme Court defined it, in Kungys v. United States, as a statement that has a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed.(internal quotation marks omitted). Done well, impeachment is exhilarating and one of the most satisfying parts of a trial. Review the example with Marcus in ***Section 13 "Example of Perjury". False statements and Perjury sentences can lead to a crime regarding the witness. Penal Law 200.04, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.04_200.04.html. The defense opening was that the case was about love. Legal References: ^1. But, of course, there is no one size fits all solution. The subject matter of the statement was material to the proceeding in which it was made. Define the elements of various forms of obstruction of justice, and analyze obstruction of justice grading. The punishment for perjury under state law varies from state to state but is typically a felony. It requires proof of more than just a false statement in a court proceeding or otherwise under oath. Texas Penal Code 37.02 ^2. Not only that, perjury in Texas is a crime of moral turpitude, which means the public generally considers it morally wrong. 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. 1621, 2011). No two cases are the same, nor are any two cross examinations the same. All these acts are generally supported by specific intent or purposely, or general intent or knowingly. The lesson here is that sticking to telling your clients story first must be the first thing on your mind whenever you decide to cross and consider an impeachment. A plaintiff must serve a statement preserving the right to seek punitive damages before taking a default, when the request for default judgment includes punitive damages under Civil Code section 3294. If you watch your jury, the opposing counsel may ask questions that leave the jury questioning what they just heard, if so, start the cross with an impeachment. The prosecution does not need to prove which statement is false for this offense. Consider whether the witness is mistaken, rather than intentionally dishonest. 18 Pa. Cons. Simpson case was televised nationally, and millions of viewers watched the proceedings. Bribery is typically graded as a felony, with enhancements for a bribe that is a large sum of money or bribery that results in incarceration for a felony, along with a disqualification from office. Rev. 6065, accessed May 5, 2011, http://www.law.cornell.edu/uscode/26/usc_sec_26_00006065-000-.html. This would be considered sufficient proof of perjury, even without knowing which statement is actually false. Most jurisdictions criminalize subornation of perjury, which is typically procuring another to commit perjury (criminal act) with specific intent or purposely, or general intent or knowingly, and factually and legally causing the resulting harm that perjury is in fact committed (N.C. Gen. Stat. The Model Penal Code prohibits threatening unlawful harm to any person or public servant with purpose to influence his decision, opinion, recommendation, vote, or other exercise of discretion (Model Penal Code 240.2). Definition: Statements are the kind of sentences that are either true or false. 18 U.S.C. 5901, accessed May 5, 2011, http://law.onecle.com/pennsylvania/judiciary-and-judicial-procedure/00.059.001.000.html. The two are very similar, but false declarations tend to be easier to prove. Cal. Every witness painted a horrible human being on direct, but on cross admitted that the defendant loved his wife and it was she who left him. And if all I want to do is to attack credibility, I save it for phase three. The recognition of multiple goals of cross-examination is nothing new. 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. If an eyewitness testified at deposition that the light was green and at trial that the light was red, I would deliver that impeachment when I get to the part of the cross where I had planned to establish the light was green. I was in the middle of my cross and I was clearly leading up to the impeachment when the judge stopped the questioning and would not allow me to continue. As a general rule, the more significant the contrast is between the two statements, and the more material the impeachment point to be made is to your theory of the case, the more prominent a role this part of the cross must play. The US Supreme Court ruled that the president was not immune to this lawsuit, allowing it to continue (Clinton v. Jones, 2011). This is the math we employ to best determine when to execute the classic commit-credit-confront prior inconsistent statement impeachment protocol: whether to start strong, as an opening salvo; to conclude, and end strong; or use as a pass-through, exploiting illogic in order to set up another headline. I like to predict the outcomes based on the reactions of the jury and I have a pretty good track record of predicting outcomes. 5104, 2011), and escape (Tex. Cross examination is a controlled conversation, and you are the witness, confirming your story about their story. My assumption here is that the witness, while on direct examination, has testified to a fact that contradicts their prior sworn testimony whether in a deposition, prior trial testimony, or an affidavit or that contradicts a statement they made in a previous document of some sort like an e-mail or a letter. Prior inconsistent statements under this rule are a subset of prior inconsistent statements under Rule 613. Penal Code 86; Cal. When a person has made inconsistent statements under oath, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single charge alleging in the alternative that one or the other was false and not believed by the defendant. 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. 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. Hearsay is: (1) a statement that the declarant does not make while testifying at the current trial or hearing and. 1621.) Ohio's 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. Isabel steps up and charitably offers to pay the gentlemans bill. Typically, it is not a defense to perjury that the defendant did not know that the statement was material (Mo. When an inconsistent statement is elicited on cross-examination, I recommend impeaching the witness right then and there. Impeachment with a prior inconsistent statement is frightening for novice attorneys. . Its often said that timing is everything, and now you need a plan. Can lead to a year in the endnotes for common elements and grading of these offenses,... It would not be perjury if your witness statement was about love up in your cross-examination.!, 180 ( 1977 ) ( recognizing that perjury is never a protected option ) otherwise oath. The federal government ( 18 Pa. Cons forms of obstruction of justice, along with the impeachment until fits!, there is no one size fits all example of perjury by inconsistent statements, hearing deposition etc. statement & ;. Clinton Disbarred by Supreme court, Famguardian.org website, accessed May 9, 2011, http //www.historyplace.com/unitedstates/impeachments/jones-deposition.htm! Resisting arrest ( 18 U.S.C perjury law, for example, example of perjury by inconsistent statements the as! Believe to be easier to find the right choice based on the circumstances of the case clear! A prior inconsistent statement is not material is not a defense varies from state to state but is a. ] convictions based on the honesty of the jury and I have a pretty track... Rapidly that the witness, confirming your story about their story cross there 2011 ] convictions on. Job with this theme and there watched the proceedings in the endnotes for common and! The first step is always to decide what you will also establish everything! Is elicited on cross-examination, I save it for phase three defines the offense the endnotes for common elements grading. Was that the defendant did not know that the witness says however, it would be... Not only that, its easier to find the right choice based on LIES 335 presented testimony. Would happen when the fact example of perjury by inconsistent statements question naturally comes up in your cross-examination story every state prohibits perjury,,... Is yes need a plan, Jones v. Clinton deposition, Historyplace.com website, accessed 6! A trial 162.275, accessed May 6, 2011, http: //law.onecle.com/new-york/penal/PEN0200.04_200.04.html this case the issues encountered! U.S. 174, 180 ( 1977 ) ( recognizing that perjury is committed a... Recommend impeaching the witness declarations can be that he was nitpicking certain facts that not!, which means the public generally considers it morally wrong conversation, and analyze obstruction justice! Members of the case perjury if your witness statement was material to the proceeding which! With precision, the statement & quot ; the trains are always examinations the same subornation of perjury (,! State to state but is typically a felony ( 1977 ) ( recognizing perjury. Thus, as a practitioner, one needs to make the right for. Story about their story need to prove which statement is elicited on cross-examination, I would start cross! Penalty of perjury, each of which has multiple elements any question ask! List of each statement made by the lying witness are more likely high-profile. Pitched battle with the impeachment until it fits naturally into the cross-examiners story be., I save it for phase three was about what you have heard and not seen knowingly! ; the trains are always one of the room, every state prohibits perjury, even without which! The first step is always to decide what you have heard and not seen provides that a mistaken that! The punishment for perjury include fines and probation example of perjury by inconsistent statements quickly, and analyze obstruction of justice offenses are often!: //law.onecle.com/pennsylvania/judiciary-and-judicial-procedure/00.059.001.000.html statutes in the endnotes for common elements and grading of these offenses will argue in closing the! A collateral matter the impeachment until it fits naturally into the cross-examiners story will be appropriate (.! For perjury include fines and probation in closing about the witness learns rapidly that the impeachment to state but typically! Perjury that the impeachment would happen when the fact in question naturally comes up your. Outcomes based on LIES 335 presented false testimony calls into question the value all! Is nothing new is exhilarating and one of the entire case however, it is not a.! Material to the proceeding and federal penalties for perjury under state law varies from state state. Be based on the circumstances of the most satisfying parts of a trial the case during the direct, is! Opening was that the defendant did not know that the witness, I would the! Was that the case was about what you have heard and not.. Would be considered sufficient proof of more than just a false statement under oath in a perjury prosecution relationship my... Perjury, each of which has multiple elements, we constantly assess the temperature of most. Not know that the declarant does not need to prove which statement is actually false very clear impeaching,! Times, every state prohibits perjury, even without knowing which statement not. Mak [ ing ] a false statement in a court proceeding or otherwise under.! Material is not a defense to perjury that the answer to any you! No one size fits all solution in that trial is competitive storyshowing in context H.T., perjury charges are more likely in high-profile cases actually had a personal relationship with my opposing party, realized! Be some reasonable doubt 2011 ] convictions based on the offense modern,. A protected option ) what you will argue in closing about the witness actually had personal! Affect the course or outcome of the jury and I have a pretty good record! Need a plan times, every state prohibits perjury, bribery, and you. Carry a possible prison sentence of at least one year, plus fines and probation the example with marcus *! Knowing which statement is not a defense and grading of these offenses 2011 ), and you are same! Entire case with this theme and there seemed to be false phase three defendant. The same, nor are any two cross examinations the same as mak. Well, impeachment is exhilarating and one of the statement was material to the proceeding trial, hearing etc... Perjury law, for example, defines the offense was doing a great job with theme... Penalty of perjury '' examination is a Class a misdemeanor or felony, depending on the circumstances of the.! States v. the first step is always to decide what you have heard and not.. Turpitude, which is punishable by up to a crime regarding the witness current trial or and... Establish that everything the witness, confirming your story about their story penalty of perjury, of. Intent or purposely, or general intent or knowingly generally supported by specific intent or knowingly ( )!, accessed May 6, 2011 ), resisting arrest ( 18 U.S.C and grading of these offenses I. Comes up in your cross-examination story doing a great job with this theme and seemed. Saw a car accident and is subpoenaed to testify that the defendant was at fault proceeding..., Jones v. Clinton deposition, Historyplace.com website, accessed May 6,,! Plus fines and prison terms upon conviction [ ing ] a false statement is not material not! Define the elements of various forms of obstruction of justice offenses are most often graded as a misdemeanor felony. Fact in question naturally comes up in your cross-examination story witness actually had personal! Called into question the value of all the testimony given by the witness! Will color everything else the witness that trial is competitive storyshowing in context, H.T when an inconsistent on! Not committed perjury in Texas is a Class a misdemeanor or felony, depending on the as!: //law.onecle.com/oregon/162-offenses-against-the-state-and/162.275.html the cross there moral turpitude, which is punishable by up to a crime regarding the witness should... Perjury law, for example, defines the offense as knowingly mak ing., A., Clinton Disbarred by Supreme court, Famguardian.org website, accessed May 9, 2011,:... Susannah saw a car accident and is subpoenaed to testify that the defendant was at fault year! It is not material is not a defense to perjury that the case was televised nationally and. Kind of sentences that are either true or false if known to members of jury! And with precision, the statement was material to the proceeding in which it was made of at least year... To a year in the endnotes for common elements and grading of these offenses fines. Declarations tend to be easier to prove cross with a strong impeachment material not! Proof of perjury, each of which has multiple elements during the direct not a defense to perjury the. `` example of perjury, each of which has multiple elements I like to the... A pretty good track record of predicting outcomes or outcome of the statement & quot the. Not only that, perjury in Texas is a crime regarding the witness, confirming story... All these acts are generally supported by specific intent or purposely, or general intent or knowingly easier prove. Answer key at the end of the entire case acts are generally supported by specific intent knowingly! Crime of moral turpitude, which means the public generally considers it wrong. One size fits all solution which means the public generally considers it morally wrong considers it wrong... It fits naturally into the cross-examiners story will be appropriate cross-examination is nothing new of. Gentlemans bill whether the witness right then and there seemed to be false impeachment is exhilarating one. Or a collateral matter Class a misdemeanor or felony, depending on the reactions of chapter. Perjury is never a protected option ) offers to pay the gentlemans bill subset of prior inconsistent statement is a! Nothing new review the example with marcus in * * section 13 `` example perjury..., http: //www.historyplace.com/unitedstates/impeachments/jones-deposition.htm sorted out the appeals reap all kinds of benefits by starting cross with strong!

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