Nonetheless, the threat of a felony conviction still serves as a deterrent and helps to ensure that witnesses testify truthfully in judicial and official proceedings and give accurate statements in certified writings. Susannah, a Hollywood movie star, is a witness in a civil personal injury case. However, Marcuss statement does not appear to be material to this judicial proceeding because the reason for Marcuss presence at Macys will not affect the outcome of Lindsays civil theft trial (usually called the tort of conversion). For example, lying under oath that you do not wear glasses could be considered perjury when you are testifying about what you have seen. Of course, the answer is the classic law professor response that it depends. When isnt that the answer? (1) A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child to: He was never criminally prosecuted for perjury or obstruction of justice outside the impeachment procedure, although he was later disbarred for his behavior (Gearan, A., 2011). Check your answers using the answer key at the end of the chapter. In spite of the attendant circumstance requirement that the statement be made under oath, many jurisdictions disallow a defense to a prosecution for perjury based on the assertion that the oath or affirmation was administered or taken in an irregular manner (Ala. Code 13A-10-108, 2011). 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 decision making will be influenced by the benefit. Historyplace.com website, Presidential Impeachment Proceedings, accessed May 9, 2011, http://www.historyplace.com/unitedstates/impeachments/clinton.htm. 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. You will also establish that everything the witness says should be called into question. Penal Code 38.06, 2011). Some typical examples of obstruction of justice are as follows: giving false identification to a law enforcement officer (720 ILCS 5/31-4.5, 2011), impersonating a law enforcement officer (Fla. Stat. Stat. (a) When a person charged with perjury or false swearing has made inconsistent material statements under oath and affecting the same matter or transaction, all the several inconsistent material statements may be charged in different counts of the same indictment or information. 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. 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. If the witness denies the statement, you impeach. 720 ILCS 5/31-4, accessed May 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.html. Aggravated perjury is a third-degree felony, which is punishable by 2 to 10 years in prison and a $10,000 fine. 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. This article is published in final form as a NITA White Paper. Ann. 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. 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. 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. Slightly inconsistent: exclude it b. 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. American Heritage The criminal offense of making false statements under oath, especially in a legal document or during a legal proceeding. If I had evidence that the witness actually had a personal relationship with my opposing party, I would start the cross there. Code of Criminal Procedure, 38.18, 2011). 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. 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. 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 every trial attorneys arsenal of weapons, the impeachment by prior inconsistent statement is one of the most powerful. Penal Law 200.03, 2011) or bribery that results in someones prosecution or incarceration for a felony (N.Y. Anthony, the Macys civil trial attorney, cross-examines Marcus, and forces him to admit that he saw Lindsay steal the necklace, and that he was lying previously. Its often said that timing is everything, and now you need a plan. Statements consistent with the statement the witness is making in court, 2. In some instances, you can predict an inconsistent statement. Penal Law 180.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html. Marcus has not committed subornation of perjury in this case. As a prosecutor, I would have already completed my case-in-chief (and hopefully gained the trust of the jury) before cross-examining any defense witness who may be impeached. 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. Thus both Isabel and the judge may be subject to prosecution for and conviction of this offense, and the judges acquittal of Isabel will ease the prosecutors burden in proving the specific intent or purposely or general intent or knowingly to enter into an agreement corruptly influencing the decision making in this case. To this day, I do not know why this happened. 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. The verdict in the federal Barry Bonds case is explained in this video: Additional crimes against the government that impair the orderly administration of justice are contempt (N.C. Gen. Stat. The Model Penal Code grades perjury as a felony of the third degree (Model Penal Code 241.1(1)). When you do that, you increase the likelihood of success with the jury, whatever your point may be in closing. 2. Is the prior inconsistent statement on a pertinent matter or a collateral matter? 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. It is punishable by imprisonment of up to 2 years and four months. The specific act that constitutes the crime of perjury is not the false statement itself, but rather the oath or affirmation that the statement is true. UIC John Marshall Law School. 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. 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. However, if the contradiction is substantial, and the fact is meaningful enough even though it was not originally intended to be a part of your story on cross-examination then I would propose that you should include that impeachment only after you are able to elicit those fact, opinions, and conclusions from the witness that are helpful to your case. If not, then you may not score that many points with the jury by pointing out the contradiction, which may mean that the better choice is just to leave it out altogether. Penal Code 93, http://law.onecle.com/california/penal/93.html. Penal Law 200.03, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.03_200.03.html. statements to the trier of fact. You can reap all kinds of benefits by starting cross with a strong impeachment. 16, 16-10-70, 2011). 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. Cons: Anything buried in the middle risks becoming forgettable. 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. 162.265, 2011; Or. 42 Pa. Cons. The first common-law prohibition against witness perjury criminalized false testimony, given under oath, in a judicial proceeding, about a material issue. Subdivision (d)(1)(A). 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. 14-209, 2011), with a potential sentencing enhancement for committing perjury that causes another to be sentenced to prison or the death penalty (Ga. Code tit. It also might make sense to tie the statement to where it fell chronologically within the case. 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. 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. Thus Marcus is probably not subject to prosecution for and conviction of perjury, based on his testimony in this case. It's a two-pronged criminal offense requiring inducement by one person, and then perjury by another. My best laid plan did not materialize when I needed it to the most, but because the impeachment attempt was clear, the appeals court understood and we ultimately won freedom for an innocent man wrongfully accused of a crime he did not commit. for example, the witness's grand jury testimony, which indicated that the defendant was a marijuana supplier, was . She knows the case will generate significant publicity, so Susannah shaves ten years off of her age when asked routine background questions by the prosecutor. Done well, impeachment is exhilarating and one of the most satisfying parts of a trial. 162.265, accessed May 6, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.265.html. Suppose an expert testified that she is neutral and doesn't really know the parties. Ala. Code 13A-10-61, accessed May 7, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-61.html. Here are some examples of inconsistent statements that indicate a claimant is exaggerating symptoms. Susannah saw a car accident and is subpoenaed to testify that the defendant was at fault. Crimes against the administration of justice impede the governments ability to carry out the important functions of prosecuting and convicting criminals, which, in turn, destroys citizens confidence that the US legal system is effective in ensuring individual safety and security. In the second phase, the lawyer attacks the witness direct testimony, usually through leading questions showing the lack of accuracy. You may be able to fill out a form online or talk to someone over the phone. These small details of exact times or the date in this case was minutia and the jury did not care or think it was important and because it was not that important, the defense lost the opportunity to advance the theory of the case. admissible non hearsay. All these acts are generally supported by specific intent or purposely, or general intent or knowingly. Be sure to follow your impeachment steps to elicit a clear inconsistent statement, not a mush of an answer with cloudy qualifications. Everything was caught on video. Stat. A statement is "inconsistent" "if under any rational theory it might lead to any relevant conclusion different from any other relevant conclusion resulting from anything the witness said." Weinstein's Federal Evidence 613.04 [1]. What concessions do you need from this witness and what exactly will you argue about this impeachment? Check your answer using the answer key at the end of the chapter. 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. 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. The biggest issues commonly encountered in any perjury prosecution are proving the validity of the oath, the defendants criminal intent, the materiality of the false statement, and any requirement of corroborative evidence. I teach that cross examination should be separated into three sections. This strategy is not without risk. Ann. For example, if the witness provides a false statement that can hamper or mislead an investigation, it can be charged as perjury. As such, a statement is an assertion that something is or is not the case. . This section analyzes perjury, bribery, and obstruction of justice, along with the issues commonly encountered when prosecuting these offenses. 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. I am a believer that every witness provided by the opposing counsel can advance the theory of my case. Bribery is often compared to extortion, yet extortion is considered a crime of threatened force or violence, while bribery involves financial inducement (U.S. v. Adcock, 2011). Proc., 425.115.) Tex. Penal Code 92, accessed May 6, 2011, http://law.onecle.com/california/penal/92.html. The significance and detrimental impact of the testimony being impeached; Whether the impeachment is intended to portray the witness as a liar or just as someone who due to a memory lapse or other frailty made an error; and. Hancock v. You must keep your cool and not tip off the witness. In this video, President Clinton admits that he had an inappropriate relationship with Monica Lewinsky: Ala. Code 13A-10-104, accessed May 6, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-104.html. 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? The defense opening was that the case was about love. Section 13 Example of a Case Lacking an Element of Perjury, perjury by inconsistent or contradictory statements, http://scholar.google.com/scholar_case?case=14705028387089517508&q= %22State+v.+Carr%22&hl=en&as_sdt=2,5, http://scholar.google.com/scholar_case?case=3089258849772766127&q= %22witness+tampering%22&hl=en&as_sdt=4,33&as_ylo=2003, http://law.onecle.com/alabama/criminal-code/13A-10-104.html, http://law.onecle.com/alabama/criminal-code/13A-10-107.html, http://law.onecle.com/alabama/criminal-code/13A-10-108.html, http://law.onecle.com/alabama/criminal-code/13A-10-61.html, http://law.onecle.com/arizona/criminal-code/13-2807.html, http://law.onecle.com/california/penal/129.html, http://law.onecle.com/california/penal/74.html, http://law.onecle.com/california/penal/85.html, http://law.onecle.com/california/penal/86.html, http://law.onecle.com/california/penal/88.html, http://law.onecle.com/california/penal/92.html, http://law.onecle.com/california/penal/93.html, http://www.law.cornell.edu/supct/html/95-1853.ZS.html, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm, http://www.historyplace.com/unitedstates/impeachments/jones-deposition.htm, http://law.onecle.com/florida/crimes/843.08.html, http://law.onecle.com/georgia/16/16-10-70.html, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm, http://www.historyplace.com/unitedstates/impeachments/clinton.htm, http://law.jrank.org/pages/1632/Perjury-Perjury-at-common-law.html, http://www.duhaime.org/LegalDictionary/B/Bribery.aspx, http://www.nytimes.com/2011/04/14/sports/baseball/14bonds.html?pagewanted=1&_r=1, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm, http://law.onecle.com/north-carolina/14-criminal-law/14-209.html, http://law.onecle.com/north-carolina/14-criminal-law/14-210.html, http://law.onecle.com/north-carolina/5a-contempt/index.html, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html, http://law.onecle.com/new-york/penal/PEN0195.10_195.10.html, http://law.onecle.com/new-york/penal/PEN0200.00_200.00.html, http://law.onecle.com/new-york/penal/PEN0200.03_200.03.html, http://law.onecle.com/new-york/penal/PEN0200.04_200.04.html, http://law.onecle.com/new-york/penal/PEN0200.10_200.10.html, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.265.html, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.295.html, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.275.html, http://www.usatoday.com/sports/baseball/2011-04-13-verdict-barry-bonds-guilty_N.htm, http://scholar.google.com/scholar_case?case=17399056576949304157&q= State+v.+Kimber+48&hl=en&as_sdt=2,5, http://law.onecle.com/texas/criminal-procedure/38.18.00.html, http://law.onecle.com/texas/penal/38.06.00.html, http://scholar.google.com/scholar_case?case=189694239263939940&hl=en&as_sdt=2&as_vis=1&oi=scholarr, http://scholar.google.com/scholar_case?case=12281686524757008977&hl=en&as_sdt=2&as_vis=1&oi=scholarr, http://law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001621-000-.html, http://www.law.cornell.edu/uscode/26/usc_sec_26_00006065-000-.html, http://law.onecle.com/pennsylvania/judiciary-and-judicial-procedure/00.059.001.000.html, http://law.onecle.com/illinois/720ilcs5/31-4.html, http://law.onecle.com/illinois/720ilcs5/31-4.5.html, CC BY-NC-SA: Attribution-NonCommercial-ShareAlike. 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