Director of Advocacy Programs and Lecturer. n. the crime of encouraging, inducing or assisting another in the commission of perjury, which is knowingly telling an untruth under oath. that the first statement was false, which will simplify and expedite the LAW AND ETHICS : LIFE CARE CENTERS OF AMERICA, INC. tent statement -in-kn-sis-tnt- : a witness's statement made out of court prior to testifying that is inconsistent with the witness's testimony and that may be offered to impeach the witness's credibility compare prior consistent statement Or. Rev. 575.040(3) (1), accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm. The false statements always form a part of perjury as you are taking the oath of telling the truth despite authenticating a lie in front of the jury. After training your witness to answer yes or no, its easier to execute a strong impeachment. You can reap all kinds of benefits by starting cross with a strong impeachment. Rev. On May 6, 1994, Paula Jones filed a civil lawsuit for sexual harassment against then-president Bill Clinton. 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. If the witness denies the statement, you impeach. The facts were never in doubt. 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. Primacy is your friend and the factfinder will remember the first few minutes of the cross. Sometimes you cant plan for impeachment lighting strikes and out of the blue a witness testifies to something different than a prior statement. When done quickly, and with precision, the witness learns rapidly that the answer to any question you ask is yes. If you plan to ask the jury to discount the entirety of the witnesss testimony, begin with the impeachment and systematically dissect and destroy his or her credibility throughout the rest of the cross-examination. I teach that cross examination should be separated into three sections. As stated previously, in many jurisdictions, the defendant must know that a statement is false or must make the statement with the specific intent or purposely to deceive. There, it usually is best to structure your cross so that the impeachment comes toward the end of the cross. Review the example with Marcus in ***Section 13 "Example of Perjury". The Model Penal Code has a similar provision (Model Penal Code 241.1(4)). Figure 13.7 Comparison of Perjury by Inconsistent Statements and Subornation of Perjury. 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). Susannah saw a car accident and is subpoenaed to testify that the defendant was at fault. It requires proof of more than just a false statement in a court proceeding or otherwise 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. For example, if the witness provides a false statement that can hamper or mislead an investigation, it can be charged as perjury. 5104, accessed May 8, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html. Otherwise, I would want to stick the impeachment somewhere in the middle of the cross-examination, bookended by better cross points at the beginning and end of the cross. For example, perjury covers statements under oath. Texas Penal Code 37.06 - "An information or indictment for perjury under Section 37.02 or aggravated perjury under Section 37.03 that alleges that the declarant has made statements under oath, both of which cannot be true, need not allege which statement is 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. 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 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. Ga. Code tit. 16, 16-10-70, 2011). These facts were not in dispute, everyone saw the tape, there was no need to get into the small details. 1512, 2011) or juror (Ariz. Rev. Connecticut Jury Instructions 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. Nonhearsay examples in detail: (i) Prior Statements by Witness:-Prior statement is is inconsistent with declarant's in-court testimony and was given under penalty of perjury at a prior proceeding; In a sense, a person must make a false statement with an intent to defraud. Legal definition of bribery, Duhaime.org website, accessed May 6, 2011, http://www.duhaime.org/LegalDictionary/B/Bribery.aspx. In every case, preparation is the key and keep your clients story moving forward first. Check your answer using the answer key at the end of the chapter. Penal Law 295.10, 2011), giving false evidence (720 ILCS 5/31-4, 2011), hiding or concealing oneself and refusing to give evidence (720 ILCS 5/31-4, 2011), tampering with evidence (Or. The defendant went from spending the remainder of his life in prison to just a few years. Aggravated perjury is a third-degree felony, which is punishable by 2 to 10 years in prison and a $10,000 fine. 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. While impeaching is fun for the attorney, it routinely gets lost on the jury. Susannah, a Hollywood movie star, is a witness in a civil personal injury case. Associate Director of the Center for Advocacy and Dispute Resolution NITA Trial/Deposition Program Director (Emeritus), Adjunct Professor of Law, Seattle University School of Law. Perjury is committed when a witness lies while under oath in a court hearing. 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. 1621.) 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. This definition was also incorporated into early American common law (Jrank.org, 2011). Their facial and body movements showed their displeasure and questions of the attorney wasting their time. 4. 2011] CONVICTIONS BASED ON LIES 335 presented false testimony calls into question the value of all the testimony given by the lying witness. Define the elements of bribery, identify the primary difficulty in a prosecution for this offense, and analyze bribery grading. Penal Code 93), any judicial officer, juror, referee, umpire (Cal. 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. 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. If a witness testifies, and is subject to cross-examination, then that witness's prior inconsistent statement is exempted from the hearsay definition, but only if it was made under oath, subject to the penalty of perjury, and made at a trial, hearing, or other proceeding, or in a deposition. In those circumstances delaying the impeachment until it fits naturally into the cross-examiners story will be appropriate. There is no reason to undermine the witnesses credibility when they are about to agree with you. 1. We've helped 95 clients find attorneys today. 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. Figure 13.8 Diagram of Defenses to Bribery. Thus modern laws of perjury are calculated to ensure that witnesses testify truthfully so that justice can be done in each individual case. Stat. So its useful to determine which idea you want to highlight: that the witness is untrustworthy, or that a particular fact is true. Rev. 18 U.S.C. Slightly inconsistent: exclude it b. Perjury Charges in High-Profile Cases 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. Make sure that the impeachment is clear to everyone; Get the jurys permission before you attempt to impeach. Most state laws have similar provisions, but judges typically have the discretion to use . For instance, the statement "The trains are always . My client spent several more years in prison while we sorted out the appeals. Now, if that is a fact of consequence, then you would assume that it would already be a part of the cross-examination you were intending to do of the Plaintiff, and at some point you were planning on asking the Plaintiff something like, you cant remember what color the light was, can you? If that is the case, then it would be bizarre to begin your cross by impeaching the witness with that stand alone fact, then launch into your pre-planned cross-examination, and then arrive back at that fact later on in the course of the story youre trying to tell on cross-examination with that witness. . Impeachment is the art of attacking a testifying witness's credibility or truthfulness at trial. (1) Prior Inconsistent Statement of Declarant-Witness. N.C. Gen. Stat. 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. The defense was doing a great job with this theme and there seemed to be some reasonable doubt. The Model Penal Code has a similar provision (Model Penal Code 241.1(2)). 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). Stat. When you do that, you increase the likelihood of success with the jury, whatever your point may be in closing. 13-2705.Perjury by inconsistent statements. 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. By doing this, the defense did not try to minimize the actual acts. 1621, 2011). 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. The most difficult bribery element to prove beyond a reasonable doubt is the criminal intent element of specific intent or purposely or general intent or knowingly to enter into an agreement that influences the bribed individuals decision. 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. 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. 5901, accessed May 5, 2011, http://law.onecle.com/pennsylvania/judiciary-and-judicial-procedure/00.059.001.000.html. 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 . 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. The primary issue in a bribery prosecution is proving the defendants criminal intent to enter into an agreement that influences the bribed individuals decision making. 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 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 addition to criminal charges, lawyers may be subject to discipline under attorney ethics rules for coaching or persuading a witness to commit perjury. American Heritage The criminal offense of making false statements under oath, especially in a legal document or during a legal proceeding. Obstruction of justice takes many forms and is a classic example of an offense against the administration of justice. Isabel has most likely committed bribery in this case. Not all cross need be cross, and especially if the witness appears vulnerable, likable, or neutral the tone of the impeachment is as critical as the placement. Testimony full of perjuries. I like to predict the outcomes based on the reactions of the jury and I have a pretty good track record of predicting outcomes. Stat. Example: lawyer Frank Foghorn is interviewing a witness in an accident case who tells Foghorn that Foghorn's client was jaywalking outside the crosswalk when struck by the defendant's . As trial lawyers, we constantly assess the temperature of the room. In a bundle of truths, a lie will always be found within. Define perjury by inconsistent statements and subornation of perjury. Therefore, perjury charges are more likely in high-profile cases. There was no doubt where it happened, when it happened or how it happened. 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. 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). Review the statutes in the endnotes for common elements and grading of these offenses. Suppose an expert testified that she is neutral and doesnt really know the parties. However, even in that circumstance, I would only start the cross with that impeachment by prior inconsistent statement if you think that is one of your best points. 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. Review the example with Isabel and the judge in Section 13 Another Example of Bribery. A contradictory statement made in court signifies that the person making such statement has been untruthful at some point during their account. Perjury is a Class A misdemeanor, which is punishable by up to a year in the county jail and a $4,000 fine. Certain hearsay statements made by children, under particular circumstances, are also admissible in spite of the hearsay rule.. Atlantas John Marshall Law School. This section analyzes perjury, bribery, and obstruction of justice, along with the issues commonly encountered when prosecuting these offenses. Be sure to follow your impeachment steps to elicit a clear inconsistent statement, not a mush of an answer with cloudy qualifications. In other words, the impeachment did not work because the attorney focused on the impeachment, instead of focusing on the theory of his case. 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. You must keep your cool and not tip off the witness. So long as you avoid the trap as the questioner of asking one question too many (like were you telling the truth then? Check your answers using the answer key at the end of the chapter. (a) A person commits the crime of perjury by inconsistent statements if. 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. 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. 2.7. 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. In actuality, Marcus was shopping for jewelry as a gift for his girlfriend. Thus all the elements of perjury appear to be present, and Marcus may be subject to prosecution for and conviction of this offense. (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: 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 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. I am a believer that every witness provided by the opposing counsel can advance the theory of my case. The falsity of the perjurious statement may be established either by the testimony of two independent witnesses or by one witness and independent corroborating evidence that is inconsistent with the innocence of the accused. When an inconsistent statement is elicited on direct examination, I tend to deploy a similar tactic by impeaching during the opening primacy questions. The placement of your confrontation with an inconsistent statement really depends on what you are trying to accomplish, and the behavior of the witness. 14-210, 2011). 2. My assumption here is that the witness, while on direct examination, has testified to a fact that contradicts their prior sworn testimony whether in a deposition, prior trial testimony, or an affidavit or that contradicts a statement they made in a previous document of some sort like an e-mail or a letter. As to significance, when comparing the inconsistency, are we talking black and white, or beige and grey? Significant inconsistent: include only the inconsistent portion be introduced Silence does not count as inconsistency A . Barry Bonds, a baseball player and record-breaking home run hitter for the San Francisco Giants, was found guilty by a federal jury for obstruction of justice, based on his refusal to answer a question during a grand jury investigation of his steroid use (Macur, J., 2011). The decision regarding when to use this potent tool depends on the goal. Its often said that timing is everything, and now you need a plan. 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