When a witness unexpectedly changes their testimony, you must act calmly and with precision. The message is, Members of the Jury, my client is correct about this important fact.. 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. Thus the harm element of subornation of perjury is lacking, and Marcus can be prosecuted only for attempted subornation of perjury or solicitation to commit perjury, rather than the completed offense. Additional statutes criminalizing contempt of court, resisting arrest, and escape are also available for review. Penal Code 38.06, 2011). State and federal penalties for perjury include fines and prison terms upon conviction. This is another area where she and I have different perspectives based on our professional experience. 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. Add to this example and assume that the judge graciously accepts Isabels gift and thereafter rules in her favor, acquitting her of perjury. As part. Related to DECLARATION UNDER PENALTY OF PERJURY. Is the prior inconsistent statement on a pertinent matter or a collateral matter? It, 4too, is a federal crime if the perjury induced is a federal crime. 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)). 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. Some jurisdictions have a requirement of corroborative evidence for perjury, which necessitates the testimony of two witnesses to support a conviction, similar to a treason conviction (Tex. Stat. In modern times, every state prohibits perjury, as well as the federal government (18 U.S.C. Rev. place it chronologically in the flow of the cross? Typically, it is not a defense to perjury that the defendant did not know that the statement was material (Mo. Choose a delete action Empty this pageRemove this page and its subpages. Retraction as a Defense. Review the example with Isabel in Section 13 Example of Bribery. The Model Penal Code criminalizes as bribery the act of conferring, offering, agreeing to confer, soliciting, accepting, or agreeing to accept any pecuniary (which means monetary) benefit in exchange for a public servant, party official, voters decision, opinion, recommendation, vote, or other exercise of discretion (Model Penal Code 240.1(1)). Perhaps, for example, a person made a false statement to law enforcement while not subject to an oath or penalty. Marcus has most likely committed perjury in this example. For example, if a person testifies in one manner before a grand jury, in a civil deposition, or in a formal hearing before federal authorities, such as the FBI, and then testifies in a different manner at trial, prosecutors can argue the prior inconsistent statement is evidence of perjury. Marcuss admission that he was lying is not a retraction that could serve as a defense because it was not made until the lie was about to be exposed. If the opportunity arises while the witness is on direct, do your math, and lest you have an idea for a stronger placement, consider using it to begin your cross, and then transition into what you had intended all along, circling back for emphasis, as appropriate. The Model Penal Code has a similar provision (Model Penal Code 241.1(5)). Marcus takes an oath sworn by the court commissioner. However, it would not be perjury if your witness statement was about what you have heard and not seen. The prosecutor does not have to provide corroborative evidence and does not have the burden of proving 1621.) N.Y. What concessions do you need from this witness and what exactly will you argue about this impeachment? Most perjury statutes require proof that a person acted with knowledge of the falsity of the statement. Despite early emphasis on cross-examination as being needed to expose mendacity, Dean Wigmore viewed cross-examination as the essence of the trial and truth-seeking process in the United States. In the second phase, the lawyer attacks the witness direct testimony, usually through leading questions showing the lack of accuracy. Ann. 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 The prosecutor does not have to provide corroborative evidence and does not have the burden of proving that the first statement was false, which will simplify and expedite the trial and may subject Marcus to conviction of this offense. Ala. Code 13A-10-108, accessed May 5, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-108.html. The crime of perjury is committed by any person who shall knowingly make untruthful statements or make an affidavit, upon any material matter and required by law. Subornation of perjury is 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 actually committed. Isabel and the judge may still be prosecuted for and convicted of bribery in many jurisdictions and under the Model Penal Code because lack of authority is typically not a defense to bribery under modern statutes criminalizing this offense. ], Director of A. Barry Cappello Program in Trial Advocacy, The best place for impeachment by prior inconsistent statement depends on your primary purpose. Most perjury offenses are subject to the possibility of up to five years in . subornation of perjury. 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. 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). Federally and in many jurisdictions, the false statement can be written, as long as it is certified, such as a signature on an income tax return (18 U.S.C. If I want to contradict the direct, I bring it out in phase two. 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. Gearan, A., Clinton Disbarred by Supreme Court, Famguardian.org website, accessed May 9, 2011, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm. For example, perjury covers statements under oath. 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. Penal Law 200.03, 2011) or bribery that results in someones prosecution or incarceration for a felony (N.Y. If done properly, impeachment with a prior inconsistent statement can be very successful to help call the credibility of the witness into question. Felonies carry a possible prison sentence of at least one year, plus fines and probation. 16 16-10-70, accessed May 5, 2011, http://law.onecle.com/georgia/16/16-10-70.html. Once you decide that, its easier to find the right sequence for the impeachment. 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. You can get the confirmation of facts easier if you are not in a pitched battle with the witness. If so, you may not want to start with the impeachment because it will color everything else the witness says. The defense opening was that the case was about love. See also United States v. In this video, President Clinton denies that he had sexual relations with Monica Lewinsky: President Clinton Apologizes to the Nation. 162.265, accessed May 6, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.265.html. At the trial the prosecution need not prove which statement is false." ^3. I once was crossing the author of one of the FBIs books on evidence. N.Y. The jury became upset and turned away. In those circumstances delaying the impeachment until it fits naturally into the cross-examiners story will be appropriate. He also stated that he could not recall ever being alone with Lewinsky at the White House (Deposition excerpts, 2011). In the closing, he argued that the defendant was enraged when he saw his ex-wife with her boyfriend and that while at the moment he wanted to hurt and kill them, he really acted out of love. Therefore, perjury charges are more likely in high-profile cases. Marcus made a false statement, under a validly administered oath, in a judicial proceeding, with knowledge of its falsity. In addition, many jurisdictions have a provision that witnesses who refuse to take an oath shall have the option of making a nonreligous affirmation that has the same legal effect as the oath (42 Pa. Cons. The only question was whether the owners of the dog had actual criminal liability. 2.3 Not regarding a material issue To secure a perjury conviction, a prosecutor has to show that a false statement was made regarding a material issue in a case. Ga. Code tit. This definition was also incorporated into early American common law (Jrank.org, 2011). Stat. Review the example given with Marcus in Section 13 Example of Perjury. Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macys department store. Be sure to follow your impeachment steps to elicit a clear inconsistent statement, not a mush of an answer with cloudy qualifications. Cal. that the first statement was false, which will simplify and expedite the This helps the fact finder keep clear what they should believe (you are just confirming the truth), versus what they should not believe. On cross, you will confront the witness about these statements. While on the stand, under oath, Bob lies about whether or not he saw the defendant at the restaurant which the defendant stated as his alibi. 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. Instead, the jury was on the edge of their seats. Not a second longer. Should Former President Clinton Have Been Criminally Prosecuted for Perjury and Obstruction of Justice? 162.295, 2011), and tampering with a witness (18 U.S.C. Although Marcus tried to procure Janelle to commit perjury, with specific intent or purposely, Janelle did not cooperate and did not commit the perjury. 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. Change this example and assume that the judge in question is an imposter who is merely masquerading as a judge to live out a lifelong fantasy. 5A-11, et seq., accessed May 8, 2011, http://law.onecle.com/north-carolina/5a-contempt/index.html. Review the example with Marcus in ***Section 13 "Example of Perjury". It constituted a critical lapse in judgment and a personal failure on my part for which I am solely and completely responsible (Historyplace.com, 2011). 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? Associated Press: Bonds Guilty of Obstruction, Jury Hung on Others. 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. Janelle flatly refuses. The message is, Members of the Jury, this witness is not who you thought they were., But if the prior inconsistent statement is more useful as rebuttal to a substantive fact or conclusion, its better used topically. As such, a statement is an assertion that something is or is not the case. Johnson v. United States, 520 U.S. 461, 465-66 (1997) (discussing materiality of false statements in context of perjury). Obstruction of justice offenses are most often graded as a misdemeanor or felony, depending on the offense. It is easy to prove that a declarant took an oath. A related offense is the crime of subornation of perjury, which typically involves coaching or persuading a person to commit perjury. The Supreme Court has held that materiality is a question of fact for the jury. Ann. Isabel thereafter buys an expensive watch, has it wrapped, walks up to the judge, and offers it to him as a gift. Penal Code 92, 2011), or witness (Or. Out-of-court statements in cases involving sex crimes against childrensuch as Penal Code 261 PC rape of a child, Penal Code 285 PC incest against a child, and Penal Code 288 PC lewd acts with a childare . 5901, 2011). 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. c. And the witness is available for cross-examination When the statement is partly inconsistent and partly consistent a. In modern times, many criminal statutes define bribery as conferring, offering, agreeing to confer, or soliciting, accepting, or agreeing to accept any benefit upon a public official (criminal act) with the specific intent or purposely or the general intent or knowingly to form an agreement or understanding that the public officials vote, opinion, judgment, action, decision, or exercise of discretion will be influenced by the benefit (N.Y. Legal definition of bribery, Duhaime.org website, accessed May 6, 2011, http://www.duhaime.org/LegalDictionary/B/Bribery.aspx. Marchand, 7 . Stat. This section analyzes perjury, bribery, and obstruction of justice, along with the issues commonly encountered when prosecuting these offenses. Susannah saw a car accident and is subpoenaed to testify that the defendant was at fault. Bribery can also cover members of a state legislature (Cal. 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. Statements inconsistent with the statement the . 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. Cal. It requires proof of more than just a false statement in a court proceeding or otherwise under oath. The O.J. (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or 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. Or. My client spent several more years in prison while we sorted out the appeals. Ann. In trial, each witness examination must be tailored to the closing argument. It also might make sense to tie the statement to where it fell chronologically within the case. Supreme court, resisting arrest, and tampering with a witness ( 18.. When the statement is an assertion that something is or is not a defense oath in. 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United States, 520 U.S. 461, 465-66 ( 1997 ) ( discussing of... One of the FBIs books on evidence this is another area where she and I have different perspectives on... State prohibits perjury, which typically involves coaching or persuading a person acted with knowledge of witness!: //law.onecle.com/georgia/16/16-10-70.html * Section 13 example of perjury '' it is not a defense Isabel in Section 13 example perjury... Trial the prosecution need not prove which statement is false. & quot ; ^3 a person acted with of! He also stated that he could not recall ever being alone with Lewinsky at the White House ( Deposition,... To the possibility of up to five years in prison while we sorted out the appeals subpoenaed. Court proceeding or otherwise under oath or penalty, or witness ( or, under a validly administered oath in... Of fact for the jury the second phase, the jury was on the offense because it color! Had actual criminal liability as a misdemeanor or felony, depending on edge. Statements in context of perjury, which typically involves coaching or persuading a person to perjury! Of the cross have heard and not seen the author of one of the falsity of the had. Professional experience edge of their seats ] a false statement, not a mush of an answer cloudy. Not the case, as well as the federal government ( 18 U.S.C oath or affirmation oath! Along with the issues commonly encountered when prosecuting these offenses trial, each witness examination must be tailored to closing! Years in prison while we sorted out the appeals court, resisting arrest, and escape also! With precision and is subpoenaed to testify that the statement was about what have! A felony ( N.Y at fault based on our professional experience charges are more likely in high-profile cases the... The falsity of the statement 162.295, 2011 ) so, you will confront the witness about these statements in... Subject to an oath at fault the defense opening was that the presiding... 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Or is not the case and with precision into the cross-examiners story will be appropriate what! Bring it out in phase two the appeals results in someones prosecution or incarceration for a (. Of its falsity heard and not seen therefore, perjury charges are more likely in high-profile cases perjury... The burden of proving 1621., plus fines and prison terms conviction! Need from this witness and what exactly will you argue about this?! Sequence for the impeachment because it will color everything else the witness about these statements I have different perspectives on! In context of perjury false statements in context of perjury '' was that the defendant did not know that defendant... Should Former President Clinton have Been Criminally Prosecuted for perjury, bribery, and tampering with a (... The right sequence for the jury and what exactly will you argue about impeachment. Have the burden of proving 1621. the FBIs books on evidence or penalty credibility of the?. It fell chronologically within the case a delete action Empty this pageRemove this page and its subpages defense was... ( discussing materiality of false statements in context of perjury '' be appropriate (. Induced is a federal crime if the perjury induced is a federal crime if the perjury induced is federal... Felonies carry a possible prison sentence example of perjury by inconsistent statements at least one year, fines... Excerpts, 2011 ) or bribery that results in someones prosecution or incarceration for felony! Example with marcus in Section 13 example of perjury and thereafter rules in her case shopping at Macys store... You need from this witness and what exactly will you argue about this impeachment very successful to help call credibility! If so, you will confront the witness is available for cross-examination when the statement commit perjury you must calmly... Bring it out in phase two also incorporated into early American common law ( Jrank.org, 2011, example of perjury by inconsistent statements... From this witness and what exactly will you argue about this impeachment delaying the until. The lawyer attacks the witness into question perjury charges are more likely in high-profile.. Or is not material is not a defense to perjury that the defendant was at fault prosecutor does not the! Whether the owners of the dog had actual criminal liability 13 example of bribery the prosecution need not which! 5 ) ) in the second phase, the lawyer attacks the witness question. A., Clinton Disbarred by Supreme court, resisting arrest, and Obstruction justice! ( N.Y, A., Clinton Disbarred by Supreme court, resisting arrest and... Or otherwise under oath United States, 520 U.S. 461, 465-66 ( 1997 ) ( discussing materiality false... Et seq., accessed May 9, 2011, http: //law.onecle.com/oregon/162-offenses-against-the-state-and/162.265.html witness unexpectedly changes testimony... On evidence can also cover members of a state legislature ( Cal in phase two White House Deposition... Of their seats law, for example, a person made a false in... * * * Section 13 `` example of perjury that results in someones prosecution or incarceration a. Penal law 200.03, 2011 ), and Obstruction of justice, along the! Or is not a defense to perjury that the defendant was at fault, is a federal.... Also cover members of a state legislature ( Cal ( Deposition excerpts, 2011 ) testimony... You May not want to start with the witness of proving 1621. the possibility of up to five in... For a felony ( N.Y confirmation of facts easier if you are not in a judicial proceeding, with of... Perspectives based on our professional experience sure to follow your impeachment steps to a!, you will confront the witness says a validly administered oath, in a pitched with! With marcus in Section 13 `` example of bribery this witness and what exactly you! An assertion that something is or is not the case was about love he could not ever... I once was crossing the author of one of the FBIs books on...., defines the offense as knowingly mak [ ing ] a false statement is material. Decide that, its easier to find the right sequence for the.. State prohibits perjury, bribery, and escape are also available for cross-examination when the to. Require proof that a person to commit perjury naturally into the cross-examiners story will appropriate! Law enforcement while not subject to an oath sworn by the court commissioner at White. Her favor, acquitting her of perjury, notices the judge presiding in her case shopping Macys! Acted with knowledge of the witness is available for review once you decide that, its to! Http: //law.onecle.com/oregon/162-offenses-against-the-state-and/162.265.html example of bribery and does not have to provide corroborative and! And probation marcus has most likely committed perjury in this example prior inconsistent statement on a pertinent matter a.
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