Although the Jones lawsuit was dismissed, the president was evasive when asked questions regarding the Lewinsky affair during a grand jury investigation instigated by Prosecutor and former Solicitor General Kenneth Starr. The Model Penal Code defines materiality as a statement that could have affected the course or outcome of the proceeding and declares that materiality should be a question of law, which means it should be determined by a judge, not a jury (Model Penal Code 241.1(2)). A hearsay statement that a witness disliked the defendant may be admitted to show the witness's bias. 5901, accessed May 5, 2011, http://law.onecle.com/pennsylvania/judiciary-and-judicial-procedure/00.059.001.000.html. The requirement that a false statement is material to the proceeding may be the most important element of perjury. 2.7. 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. 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. I once was crossing the author of one of the FBIs books on evidence. I am a believer that every witness provided by the opposing counsel can advance the theory of my case. In the book, the author wrote that under no circumstances should an agent or technician testify a certain way because it was not backed by science. The recognition of multiple goals of cross-examination is nothing new. 13-2807, 2011). 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. If Marcuss jurisdiction criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. (a) A person commits the crime of perjury by inconsistent statements if. The Contractor shall perform the Work in . Certain hearsay statements made by children, under particular circumstances, are also admissible in spite of the hearsay rule.. One last point, an essential one, is the matter of tone. The House of Representatives later impeached Clinton for perjury and obstruction of justice, based on the statements he made at the grand jury investigation and his conduct during the Jones deposition. Impeachment with a prior inconsistent statement tends to have a negative impact on any rapport established with the witness. Sex crimes against children. The defendant must be under oath when making the statement at issue in any perjury prosecution, and the oath must be administered by someone of legal authority or someone authorized to take evidence under oath (Connecticut Jury Instructions 531-156, 2011), including a referee, hearing examiner, commissioner, notary, or other person authorized to take evidence in connection with an official or judicial proceeding (Connecticut Jury Instructions 53a-156, 2011). Wong, 431 U.S. 174, 180 (1977) (recognizing that perjury is never a protected option). This is another area where she and I have different perspectives based on our professional experience. Cons: Anything buried in the middle risks becoming forgettable. Thus Marcus is probably not subject to prosecution for and conviction of perjury, based on his testimony in this case. Penal Law 200.04, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.04_200.04.html. No two cases are the same, nor are any two cross examinations the same. If the primary purpose is to show the witness is untrustworthy, begin cross with the impeachment. 1512, 2011) or juror (Ariz. Rev. I mention this because sometimes, regardless of your preparation and the facts, impeachments are a powerful tool, but sometimes, they get lost because the trial of fact does not understand, your nitpicking, it does not further your clients story or some other reason that you will never know the answer to. Isabel and the umpire probably have not committed bribery in this case. When a witness' false statement was not under oath, 18 USC Section 1001 for making false statements to government agents may still apply. Define the elements of bribery, identify the primary difficulty in a prosecution for this offense, and analyze bribery grading. Executing a clean impeachment requires careful planning and preparation. 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. Approach every cross-examination as a surgeon approaches an operation methodically, deliberately, and with precision. Big mistake. Subornation of perjury is an offence under section 333 (1) of the Crimes Act 1900, which carries a maximum penalty of 7 years in prison. The prosecutor does not have to provide corroborative evidence and does not have the burden of proving Review the example with Marcus in ***Section 13 "Example of Perjury". For me, when you decide to impeach boils down to two things: There is a reason why Ted Talks are 17 minutes long. Stat. Penal Code 88, 2011) or a public official (Cal. The defendants taped confession mimicked the details given by the victims. Penal Law 200.03, 2011) or bribery that results in someones prosecution or incarceration for a felony (N.Y. Susannah saw a car accident and is subpoenaed to testify that the defendant was at fault. Figure 13.9 Diagram of Perjury, Bribery, and Obstruction of Justice. [The contributors are presented alphabetically, with this author providing the concluding assessment. 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 (Ala. Code 13A-10-107, 2011). That being said, lets assume that the fact that the Plaintiff testified to during direct-examination that the light was green when he went through it is not a material fact, and that you do not intend on including it as part of your cross-examination. Assuming that is the case, then I would almost never start the cross-examination with the impeachment with that prior inconsistent statement for two reasons. 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. At the trial the prosecution need not prove which statement is false." ^3. Marcuss statement is false, and he made the statement with knowledge of its falsity, which satisfies the perjury criminal intent requirement. Fla. R. Evid. These facts were not in dispute, everyone saw the tape, there was no need to get into the small details. Subornation of perjury is also graded as a felony. 162.265, 2011; Or. Lying under oath is punishable under the Revised Penal Code of the Philippines as the crime of Perjury. 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? Thus, the jury would most likely have an easier time understanding what I am doing when I point out the inconsistencies. 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. Rev. AS 11.56.230. 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. In trial, each witness examination must be tailored to the closing argument. As part. Accordingly, it is necessary to include materiality as an element of the offense in this instruction. Stat. For example:! Finally, Ann. 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. Cal. Perjury is committed when a witness lies while under oath in a court hearing. This could be the case if a person lied about his or her age in an application for public benefits based on age, in which case the person might have also committed welfare fraud. 42 Pa. Cons. Penal Code 129, 2011). The Model Penal Code has a similar provision (Model Penal Code 241.1(3)). Usually, this happens a few minutes into the cross. the statement is one of identification of a person the declarant made after perceiving that person. In those circumstances delaying the impeachment until it fits naturally into the cross-examiners story will be appropriate. (1) Prior Inconsistent Statement of Declarant-Witness. Marcus's statement was materialbecause, if believed, it would have helped exonerate Lindsay in her civil case. 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)). Add to this example and assume that Marcus begs Janelle, another witness in Lindsays conversion trial, to say that she did not see him at Macys the day Lindsay stole the necklace. Penal Code 88, accessed May 7, 2011, http://law.onecle.com/california/penal/88.html. It is easy to prove that a declarant took an oath. If I want to contradict the direct, I bring it out in phase two. 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 United Arab Emirates: Contradictory Statements. 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. Connecticut Jury Instructions 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. A sworn declaration (also called a sworn statement or a statement under penalty of perjury) is a document that recites facts pertinent to a legal proceeding.It is very similar to an affidavit but is not witnessed and sealed by an official such as a notary public.Instead, the person making the declaration signs a separate endorsement paragraph at the end of the document, stating that the . Ann. Strategically, you need to maximize the impact of the inconsistent statement while minimizing loss of control over the witness. There, it usually is best to structure your cross so that the impeachment comes toward the end of the cross. Figure 13.8 Diagram of Defenses to Bribery. 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). N.Y. For example, the witness said something different to the police officer than she did at a preliminary hearing or the witness said something different on direct exam than in a prior statement. 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. (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 Stat. 18 U.S.C. The attention span of individuals is very short. The attorney carefully watched the jury members reactions and determined when he had their permission. Most state laws have similar provisions, but judges typically have the discretion to use . See Instruction 8.135 (Perjury-Testimony). 575.040, 2011). For example, perjury covers statements under oath. 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. Marcus made two inconsistent statements while under a validly administered oath in (2) offered to prove the truth of the matter asserted. Prosecutors cannot prosecute every crime that they come across and must prioritize their caseload. You can reap all kinds of benefits by starting cross with a strong impeachment. 90.608 (1) recognizes that one may impeach a witness by introducing statements of the witness which are inconsistent with the witness' present testimony. 16 16-10-70, accessed May 5, 2011, http://law.onecle.com/georgia/16/16-10-70.html. Check your answers using the answer key at the end of the chapter. Two surviving victims gave gruesome details of the many hours of torture and the steps the defendant took to set up their deaths. It provides that a statement is not hearsay (i.e., it is admissible to prove the truth of the matter asserted) so long as the inconsistent statement "was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition" Because the . questions about prior statement). States and the federal government exercise broad latitude in enacting statutes that criminalize interference with any aspect of law enforcement procedure or the prosecution and conviction of criminal offenders. When a state legislator (Cal. Stat. 162.295, 2011), and tampering with a witness (18 U.S.C. To establish a case of subornation of perjury, a prosecutor must demonstrate that perjury was committed; that the defendant procured the perjury corruptly, knowing, believing or having reason to believe it to be false testimony; and that the defendant knew, believed or had reason to believe that the perjurer had knowledge of the falsity of his or In this video, President Clinton denies that he had sexual relations with Monica Lewinsky: President Clinton Apologizes to the Nation. 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. This would be considered sufficient proof of perjury, even without knowing which statement is actually false. 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. With the more predictable impeachment you can think about how, and more importantly, when to set up an impeachment. A false statement about a persons age is not perjury, for example, unless the persons age is relevant to the proceedings and could influence them in some way. The factfinder will remember the end of the testimony. Of course, the answer is the classic law professor response that it depends. When isnt that the answer? It is a public perception that perjury is a hard crime to prove. When you do that, you increase the likelihood of success with the jury, whatever your point may be in closing. The perjury charges stemmed from Bondss claim while testifying under oath that he never knowingly used steroids, never knowingly used human growth hormones, and was never injected with a substance by anyone other than his trainer. Ann. When an inconsistent statement is elicited on direct examination, I tend to deploy a similar tactic by impeaching during the opening primacy questions. 2011] CONVICTIONS BASED ON LIES 335 presented false testimony calls into question the value of all the testimony given by the lying witness. The only question was whether the owners of the dog had actual criminal liability. Thus, as a practitioner, one needs to make the right choice based on the circumstances of the case. Every plot must be elaborated to its closing. 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. 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. He thereafter testifies that he saw Lindsay try on the necklace and then walk out of the store without paying for it. 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. Example of Perjury by Inconsistent Statements Subornation of Perjury Example of a Case Lacking an Element of Subornation of Perjury Perjury Grading Bribery Elements Prosecutorial Burden in Bribery Prosecutions Example of Bribery Another Example of Bribery Example of a Case Lacking an Element of Bribery Bribery When No Authority to Act Is Present Bribery can also cover members of a state legislature, any judicial officer, juror, referee, umpire, or witness. 14-210, 2011). In a sense, a person must make a false statement with an intent to defraud. 6065, 2011) or a report (Cal. Penal Code 86, http://law.onecle.com/california/penal/86.html. Analyze perjury and subornation of perjury grading. Ann. When a witness unexpectedly changes their testimony, you must act calmly and with precision. Answer the following questions. And cross points, like all trial points, impact most when impressing best, which means at the moment we present them not later, on closing, no matter how great we are told, and believe, we are. 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. 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. Perjury Charges in High-Profile Cases If the witness is lying, what is the motivation to lie? 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). 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. Assistant Director, Trial Advocacy Program. Legal References: ^1. Enter your email address to receive notifications of new Temple Law Advocacy and Evidence Blog posts by email. Cal. If not, stick to your story first, then pick your place based on the acceptance of the jury. Penalties for Perjury. Johnson v. United States, 520 U.S. 461, 465-66 (1997) (discussing materiality of false statements in context of perjury). 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. At early common law, bribery was the receiving or offering any undue reward by or to any person in a public office in order to influence his or her behavior in office and induce him or her to act contrary to the known rules of honesty and integrity (Legal definition of bribery, 2011). Impeachment can occur unexpectedly and spontaneously, or can be anticipated and predicted. for example, the witness's grand jury testimony, which indicated that the defendant was a marijuana supplier, was . In addition to criminal charges, lawyers may be subject to discipline under attorney ethics rules for coaching or persuading a witness to commit perjury. The message is, Members of the Jury, my client is correct about this important fact.. In many jurisdictions, the trier of fact, which could be a judge or jury, determines whether or not the statement is material. The subject matter of the statement was material. Penal Law 200.04, 2011). Penal Law 200.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.00_200.00.html. 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. You should make a list of each statement made by the other party that you believe to be false. As another example, if a defendant employer testified that he cared a great deal about employee safety, but he had previously made had contradictory statements, I would start the cross there. They stopped listening. Cal. Susannah, a Hollywood movie star, is a witness in a civil personal injury case. 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 jury became upset and turned away. 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. (1) Except as provided in subsection (2), whoever, in one or more official proceedings, willfully makes two or more material statements under oath which contradict each other, commits a felony of the third degree, punishable as provided . Be certain that the impeachment is necessary and consider whether you can simply refresh the witnesss recollection rather than pointing out an inconsistency. 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. Proc., 425.115.) . Stat. It shall constitute perjury whenever any person, having taken an oath required by law, or made an equivalent affirmation, swears or affirms any fact or state of facts material to the issue or question in controversy; and thereafter in the same or other proceedings, where such matter is material to the issue or question in controversy, swears or Manner of Performance Subject to the provisions of Article XII hereof, the Contractor shall perform all of the Work described in the Statement of Work, or cause such Work to be performed in an efficient and expeditious manner and in accordance with all of the terms and provisions of this Agreement. Felonies carry a possible prison sentence of at least one year, plus fines and probation. Where it fits into the overarching story the cross-examiner needs to tell. However, it is necessary to lay a proper predicate in order to introduce that testimony. 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. The considerate I just need to clear one thing up approach will temper the impeachment but likely secure the desired answer. You must keep your cool and not tip off the witness. I like to predict the outcomes based on the reactions of the jury and I have a pretty good track record of predicting outcomes. trial and may subject Marcus to conviction of this offense. The placement of your confrontation with an inconsistent statement really depends on what you are trying to accomplish, and the behavior of the witness. On May 6, 1994, Paula Jones filed a civil lawsuit for sexual harassment against then-president Bill Clinton. 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. 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). Fla. Stat. Penal Code 93, http://law.onecle.com/california/penal/93.html. The subject matter of the statement was material to the proceeding in which it was made. 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. 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. LAW AND ETHICS : LIFE CARE CENTERS OF AMERICA, INC. Walk out of the offense in this case v. United States, 520 U.S. 461, 465-66 ( ). Clean impeachment requires careful planning and preparation ) a person the declarant made after perceiving that.. The store without paying for it cross with a witness ( 18 U.S.C hearsay statement that a false statement knowledge. About this important fact statements in context of perjury the FBIs books on evidence provisions, but judges have! 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