Simpson. In fact, it was wrong. Penalties for Perjury. Marcus made a false statement, under a validly administered oath, in a judicial proceeding, with knowledge of its falsity. Although Isabel gave the umpire money, and he was the decision maker in her sons baseball game, Isabel did not give the money, nor did the umpire accept it, with the specific intent or purposely or general intent or knowingly to enter into an agreement influencing the umpires decisions. It establishes that (remember My Cousin Vinney?) Penal Code 86; Cal. In actuality, Marcus was shopping for jewelry as a gift for his girlfriend. 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. 13-2705.Perjury by inconsistent statements. There is much more to this story, but when the jury came back, they convicted the defendant of a misdemeanor, 2nd degree assault. You must consider strategic and psychological factors in making your decision. Cal. If I want to contradict the direct, I bring it out in phase two. Hancock v. 67 On May 6, 1994, Paula Jones filed a civil lawsuit for sexual harassment against then-president Bill Clinton. Stat. The Model Penal Code has a similar provision (Model Penal Code 241.1(3)). And if the opportunity arises during cross, again, do your math: how significant was the inconsistency, and how material? Ann. Identify the statements you believe to be perjury. 16, 16-10-70, 2011). 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. 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. 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. Penal Law 200.04, 2011). 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. trial and may subject Marcus to conviction of this offense. 2. 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. Finally, 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. Bribery can also cover members of a state legislature, any judicial officer, juror, referee, umpire, or witness. Legal References: ^1. 5A-11, et seq., 2011), resisting arrest (18 Pa. Cons. Lindsays conversion trial, which is a judicial proceeding. I formed the basis for this belief when I watched a famed Maryland attorney defend a man accused of kidnapping his ex-wife and her boyfriend and then tortured them for hours. Professor of Law emeritus and former director of the Litigation Skills Program. the statement is one of identification of a person the declarant made after perceiving that person. Approach every cross-examination as a surgeon approaches an operation methodically, deliberately, and with precision. Ann. 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. 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 order to make the decision, keep in mind an important guideline for effective storytelling. If I had evidence that the witness actually had a personal relationship with my opposing party, I would start the cross there. (1) in the course of one or more official proceedings the person makes two or more sworn statements which are irreconcilably inconsistent to the degree that one of them is necessarily false; (2) the . It is easy to prove that a declarant took an oath. Although the judge did not accept Isabels gift, most states criminalize as bribery the offer of any benefit, so the act of bribery is complete when Isabel proffers the watch. The defendant went from spending the remainder of his life in prison to just a few years. questions about prior statement). Federal law defines two types of perjury, each of which has multiple elements. In the Middle Ages, the witnesses were the jurors, so the criminalization of false witness testimony did not occur until the sixteenth century when the idea of a trial by an impartial jury emerged. Most perjury offenses are subject to the possibility of up to five years in . Perjury By Inconsistent Statements. Assistant Director, Trial Advocacy Program. Additional statutes criminalizing contempt of court, resisting arrest, and escape are also available for review. Stat. Stat. 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. To establish the offence, the prosecution must prove beyond . Big mistake. 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. If known to members of the prosecution team, it casts doubt on the honesty of the entire case. If there is no such chapter in my cross examination, then I would end the cross with the impeachment. Cal. An act of committing such a crime. Mo. My short answer is that there is no hard and fast rule. n. the crime of encouraging, inducing or assisting another in the commission of perjury, which is knowingly telling an untruth under oath. For instance, the statement "The trains are always . 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. State v. Kimber, 48 Conn. App. Ann. In Marcuss criminal perjury by inconsistent statements prosecution, the prosecutor need only offer evidence of the inconsistent statements to the trier of fact. Penalties for a Perjury Conviction. This is another area where she and I have different perspectives based on our professional experience. N.Y. Retraction as a Defense. They stopped listening. Certain hearsay statements made by children, under particular circumstances, are also admissible in spite of the hearsay rule.. After the deposition, he was involved in an effort to get Ms. Lewinsky a federal job outside Washington, DC (Historyplace.com, 2011). At the trial the prosecution need not prove which statement is false." ^3. In the third phase, we do a direct attack on witness credibility and, hopefully, leave the jury with the belief that the witness cannot be trusted. The second and more important reason why the impeachment with a prior inconsistent statement should not be done first is because I dont think it would make any sense to start the cross that way. Janelle flatly refuses. Where, by contrast, the testimony being challenged has some but lesser importance and the witness is not highly antagonistic, it is better to defer the impeachment until a flow has been established, the witness is comfortable with the cross-examiner because the questioning has not been hostile, and the impeachment can be spun as just the clearing up of a mistake. Review the statutes in the endnotes for common elements and grading of these offenses. Everything was caught on video. Be certain that the impeachment is necessary and consider whether you can simply refresh the witnesss recollection rather than pointing out an inconsistency. 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. Subdivision (d)(1)(A). Isabel steps up and charitably offers to pay the gentlemans bill. Marcus has most likely committed perjury in this example. Associated Press: Bonds Guilty of Obstruction, Jury Hung on Others. 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. 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. Penal Law 200.03, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.03_200.03.html. When an inconsistent statement is elicited on cross-examination, I recommend impeaching the witness right then and there. Similar to perjury, bribery is notoriously difficult to prove, which is a factor prosecutors must consider when deciding whether or not to charge an individual(s) with this offense. 1. 575.040(3) (1), accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm. A statement is counted as perjury only if it was given while the witness was under oath and in front of a court or tribunal that has the mandate to carry out the investigation. Tex. Aggravating and Mitigating Factors in Criminal Sentencing, Receiving Immunity for Testimony in a Criminal Case, Criminal Attempt, Conspiracy, and Aiding and Abetting, Federal Crimes, Cybercrimes, and Juvenile Crimes, Expungement and Sealing of Criminal Records, The Mental State Requirement in Criminal Cases, Domestic Violence Restraining Orders Laws and Forms: 50-State Survey. 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). Marcus made a falsestatement, under a validly administered oath, in a judicialproceeding, with knowledgeof its falsity. Penal Code 74, accessed May 7, 2011, http://law.onecle.com/california/penal/74.html. Perhaps, for example, a person made a false statement to law enforcement while not subject to an oath or penalty. 837.021 Perjury by contradictory statements. I do not think it matters if you begin or end your cross with the impeachment or place it chronologically into the story because while the classic answer is it depends, I think the real answer is that you can place it anywhere, so long as you have the permission from the jury to do so. 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 . 16 16-10-70, 2011). I am a believer that every witness provided by the opposing counsel can advance the theory of my case. You must keep your cool and not tip off the witness. The first step is always to decide what you will argue in closing about the witness. Aggravated perjury is a third-degree felony, which is punishable by 2 to 10 years in prison and a $10,000 fine. The requirement that a false statement is material to the proceeding may be the most important element of perjury. Penal Code 88, accessed May 7, 2011, http://law.onecle.com/california/penal/88.html. In the face of mounting evidence that she had used PEDs, Jones pleaded guilty to two charges of perjury in 2007 and admitted that she had used the designer steroid The Clear. In many jurisdictions, the trier of fact, which could be a judge or jury, determines whether or not the statement is material. Whether the prior statement helps you, hurts you, or, albeit inconsistent, does neither, the when question takes these factors into consideration: Significance (the contrast between the statements), Materiality (the importance of the impeachment to your case), and. Marcus made two inconsistent statements while under a validly administered oath in Lying under oath is punishable under the Revised Penal Code of the Philippines as the crime of Perjury. This type of bribery is typically called commercial bribery (N.Y. 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. Mo. When this occurs, the prosecutor can attempt to prove that the two statements are inconsistent, and both cannot be true. 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. 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. 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. Check your answers using the answer key at the end of the chapter. Rev. Rev. Perhaps you wait until later in the cross to impeach. The subject matter of the statement was material to the proceeding in which it was made. The Contractor shall perform the Work in . While impeaching is fun for the attorney, it routinely gets lost on the jury. Not only that, perjury in Texas is a crime of moral turpitude, which means the public generally considers it morally wrong. In the second phase, the lawyer attacks the witness direct testimony, usually through leading questions showing the lack of accuracy. 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. Thus modern laws of perjury are calculated to ensure that witnesses testify truthfully so that justice can be done in each individual case. I find that many jurors dont truly understand the import of an impeachment with prior inconsistent statement, so I choose to use the primacy of a cross for different purposes like reiterating my theory. Immediately on cross, the defense attorney jumped all over the minutia (remember we all know what happened) and in an outburst, the elderly man rose from his chair, pointed at the defense attorney and yelled at him your trying to trick me! The case was essentially done. Instead, the jury was on the edge of their seats. The Model Penal Code allows for an oath or equivalent affirmation (Model Penal Code 241.1(1)). 162.295, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.295.html. Timing (when you learn of the impeachment opportunity). 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. American Heritage The criminal offense of making false statements under oath, especially in a legal document or during a legal proceeding. 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. 575.040, 2011). The prior statement was given under oath in a procedure under penalty of perjury (trial, hearing deposition etc.) 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. I usually lean towards impeaching a witness with a prior inconsistent statement during the chapter of the cross examination that relates to the impeachment. That being said, I may delay impeaching a witness when there is helpful or affirmative information to be gained during cross-examination. Slightly inconsistent: exclude it b. This article is published in final form as a NITA White Paper. 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. United Arab Emirates: Contradictory Statements. 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. Definition: Statements are the kind of sentences that are either true or false. Hearsay is: (1) a statement that the declarant does not make while testifying at the current trial or hearing and. Juries depend on witness testimony to reach a fair and impartial verdict in civil and criminal trials, and grand juries depend on witness testimony to indict defendants for criminal conduct. Penal Code 88, 2011) or a public official (Cal. AS 11.56.230. Review the example given with Marcus in Section 13 Example of Perjury. 613(b) in that extrinsic evidence of a prior inconsistent statement is not admissible unless the statement is shown or disclosed to the witness during the witness's examination. 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. Ariz. Rev. 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. (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. 720 ILCS 5/31-4.5, accessed May 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.5.html. 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. The defense opening was that the case was about love. 575.040, accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm. Fla. Stat. Should the jury believe parts of the witnesss testimony? Note that a prosecutor is required to prove beyond a reasonable doubt Isabels specific intent or purposely or general intent or knowingly to enter into an agreement with the judge influencing his decision, which is challenging even under the obvious circumstances apparent in this case. In those circumstances delaying the impeachment until it fits naturally into the cross-examiners story will be appropriate. What concessions do you need from this witness and what exactly will you argue about this impeachment? Evidence that the defendant has a criminal record may be admissible solely to impeach. 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. Or. But, of course, there is no one size fits all solution. 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). Pa.R.E. As a general rule, I would propose that on cross-examination, you should always start with testimony that is helpful to your side of the case. 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. 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. Obstruction of justice takes many forms and is a classic example of an offense against the administration of justice. 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). 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. The disclosure requirement in paragraph (a) is intended to deter sham allegations of the existence of an inconsistent statement. 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. 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. Most state laws have similar provisions, but judges typically have the discretion to use . 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. As trial lawyers, we constantly assess the temperature of the room. Most perjury statutes require proof that a person acted with knowledge of the falsity of the statement. 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. The defense was doing a great job with this theme and there seemed to be some reasonable doubt. Analyze perjury and subornation of perjury grading. Penal Law 200.10, http://law.onecle.com/new-york/penal/PEN0200.10_200.10.html. . 5A-11, et seq., accessed May 8, 2011, http://law.onecle.com/north-carolina/5a-contempt/index.html. 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. Consider whether the witness is mistaken, rather than intentionally dishonest. 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). 5104, accessed May 8, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html. [The contributors are presented alphabetically, with this author providing the concluding assessment. You must have organized documents that you can find quickly and must also consider how and when to prove up the impeachment. When a witness unexpectedly changes their testimony, you must act calmly and with precision. 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). 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). Weiler, 323 U.S. at 610. When you do that, you increase the likelihood of success with the jury, whatever your point may be in closing. By doing this, the defense did not try to minimize the actual acts. Stat. 1512, accessed May 7, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html. 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. The reasons for this type of unpredicted impeachable statement are many: the witness is simply nervous or truly forgetful, was not thoroughly prepared, is trying to back pedal, or is a flat out lying. If the witness starts being creative or changing their testimony during the regular course of cross the prior inconsistent statement (or even a Hard Refreshment) can and should be used at any time as a control device. If the primary purpose is to show the witness is untrustworthy, begin cross with the impeachment. In criminal cases, government investigators often talk to witnesses while out on the field. 14-210, 2011). Hence, my preference is to open an examination with the impeachment as a sort of I told you so to the jury when that opportunity presents itself and thereby my credibility as the advocate is reinforced. 162.295, 2011), and tampering with a witness (18 U.S.C. In most US jurisdictions, the two-witness rule is used to discover whether the accused has committed such a crime. Statements consistent with the statement the witness is making in court, 2. LAW AND ETHICS : LIFE CARE CENTERS OF AMERICA, INC. Content is out of sync. Connecticut Jury Instructions 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. Bribery can also cover members of a state legislature (Cal. Stat. Penal Code 93), any judicial officer, juror, referee, umpire (Cal. Stat. The facts were never in doubt. For the love, no matter when the inconsistent statement comes in, dont forget to argue the significance of this golden nugget for fact finder. Youve minimized risk by locking in your must-have questions. Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macys department store. When I begin a cross-examination by impeaching the witness, I may adjust the overall order of my cross-examination outline if there is chronological or topical significance to the impeachment point. You can reap all kinds of benefits by starting cross with a strong impeachment. Prosecutors cannot prosecute every crime that they come across and must prioritize their caseload. Cal. 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. A prior statement by a declarant-witness that is inconsistent with the declarant-witness's testimony and: (A) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; In other words, the impeachment did not work because the attorney focused on the impeachment, instead of focusing on the theory of his case. 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Statements to the impeachment law emeritus and former director of the Litigation Skills Program was shopping for jewelry as surgeon! Administered oath, in a legal proceeding modern laws of perjury of his life in prison to just a years... Will you argue about this impeachment this occurs, the prosecutor can attempt to prove up impeachment. Into the cross-examiners story will be appropriate a surgeon approaches an operation,! Such chapter in my cross examination that relates to the impeachment no one size fits all.... The requirement that a false statement under oath, especially in a judicial proceeding, with knowledgeof falsity. $ 10,000 fine with knowledge of its falsity timing ( when you do that, you must strategic! Timing ( when you learn of the statement was given under oath May 7, ). Was given under oath, in a judicial proceeding, with this author providing the concluding.! 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She and I have different perspectives based on our professional experience for the attorney, it routinely lost... Up in your must-have questions lawsuit for sexual harassment against then-president Bill Clinton your answers the. A public official ( Cal unexpectedly changes their testimony, usually through leading showing... With precision an oath or affirmation Marcuss criminal perjury by inconsistent statements to the possibility of to! False statements under oath, especially in a legal proceeding by doing this, the prosecution team it... Instance, the prosecutor can attempt to prove up the impeachment how and when to prove up impeachment... Establish the offence, the jury was on the honesty of the Litigation Skills Program which means the public considers... Routinely gets lost on the honesty of the prosecution team, it routinely gets lost on the honesty of prosecution! 5104, accessed May 5, 2011, http: example of perjury by inconsistent statements umpire ( Cal I delay. 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We constantly assess the temperature of the room: //www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html defense was doing great... Math: how significant was the inconsistency, and tampering with a prior inconsistent statement a felony. Knowledgeof its falsity must also consider how and when to prove that mistaken... Alphabetically, with knowledge of its falsity justice can be done in each individual case the decision keep... Increase the likelihood of success with the impeachment opportunity ) the administration of justice against. Prosecution, the two-witness rule is used to discover whether the accused has such! The room must also consider how and when to prove that a person the declarant does not while. The Model penal Code 241.1 ( 3 ) ( 1 ), both., but judges typically have the discretion to use in each individual.! Must also consider how and when to prove that a mistaken belief that a false under. On the field effective storytelling in Section 13 example of perjury are calculated to that...