The subject matter of the statement was material to the proceeding in which it was made. Define the elements of various forms of obstruction of justice, and analyze obstruction of justice grading. In many states and under the Model Penal Code, it is no defense to bribery that the individual bribed does not have the authority to act or make the decision that is the subject of the bribe (Model Penal Code 240.1) (Ala. Code 13A-10-61, 2011). 6065, accessed May 5, 2011, http://www.law.cornell.edu/uscode/26/usc_sec_26_00006065-000-.html. Thus modern laws of perjury are calculated to ensure that witnesses testify truthfully so that justice can be done in each individual case. Ann. You must consider strategic and psychological factors in making your decision. 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; 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. 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. The obstruction of justice conviction resulted from Bondss evasive answer to the question of whether his personal trainer had ever injected him with steroids (Macur, J., 2011). These facts were not in dispute, everyone saw the tape, there was no need to get into the small details. 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. To establish the offence, the prosecution must prove beyond . Penal Code 74, accessed May 7, 2011, http://law.onecle.com/california/penal/74.html. 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. 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. I understand Professor Lippys motivation to gain credibility as the questioner before venturing into a witness impeachment. The Supreme Court has held that materiality is a question of fact for the jury. 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. Answer the following questions. At The Beginning: If EVERYTHING about this witnesss testimony is just wrong in some fashion, and you need to set the stage for discrediting the lens through which the witness testified, then starting off with some form of impeachment with a prior inconsistent statement, followed by an attack on perception, bias, prejudice, corruption or interest can be very effective. Ohio's 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. Connecticut Jury Instructions 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. The jury became upset and turned away. Is it best to, Or is the answer that classic law professor response of it depends? This conundrum was presented to trial advocacy experts nationally; the following is their guidance, the collective wisdom of the trial advocacy academy. (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. Additional statutes criminalizing contempt of court, resisting arrest, and escape are also available for review. Change this example so that Marcus testifies that he did not see Lindsay walk out of the Macys department store without paying for the necklace because he does not want to admit that he was shopping for jewelry to buy his girlfriend. Marcus's statement was materialbecause, if believed, it would have helped exonerate Lindsay in her civil case. 1621, 2011). 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. The attention span of individuals is very short. False statements and Perjury sentences can lead to a crime regarding the witness. A safer strategy is to wait until you can control the witness and after youve elicited your concessions before impeaching and creating hostility with your witness. Charged with multiple felonies including two counts of attempted murder, the attorney did not object to a single prosecution witness. 2.7. Certain hearsay statements made by children, under particular circumstances, are also admissible in spite of the hearsay rule.. 90.608 (1) recognizes that one may impeach a witness by introducing statements of the witness which are inconsistent with the witness' present testimony. 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. Like almost everything else in law and advocacy, of course, placement of an impeachment by prior inconsistent statement depends on the tone and purpose of any cross-examination. For me, when you decide to impeach boils down to two things: There is a reason why Ted Talks are 17 minutes long. Rev. Ann. 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. 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. Figure 13.6 Diagram of Defenses to Perjury. It also might make sense to tie the statement to where it fell chronologically within the case. Or. Fla. Stat. And if the opportunity arises during cross, again, do your math: how significant was the inconsistency, and how material? The only time that I would start with the impeachment would be if the witness truly has no testimony to offer on cross-examination that are helpful to your side of the case, in which case the entire cross is likely to be an attack on the witnesses credibility. 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. Asking the impeachment at the end if safe and effective. 4. The prosecution does not need to prove which statement is false for this offense. In this video, President Clinton denies that he had sexual relations with Monica Lewinsky: President Clinton Apologizes to the Nation. 67 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. There, it usually is best to structure your cross so that the impeachment comes toward the end of the cross. Marcus has not committed subornation of perjury in this case. 1621.) The Model Penal Code allows for an oath or equivalent affirmation (Model Penal Code 241.1(1)). No matter which strategy you decide on, you must practice the steps to be efficient and clear. A statement is true if what it asserts is the case, and it is false if what it asserts is not the case. Marcuss statement was material because, if believed, it would have helped exonerate Lindsay in her civil case. 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 am a believer that every witness provided by the opposing counsel can advance the theory of my case. If I had evidence that the witness actually had a personal relationship with my opposing party, I would start the cross there. 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. 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. Marcus takes an oath sworn by the court commissioner. N.C. Gen. Stat. As trial lawyers, we constantly assess the temperature of the room. 843.08, 2011), refusing to aid a law enforcement officer when requested (N.Y. Review the example with Marcus in Section 13 Example of Perjury. If known to members of the prosecution team, it casts doubt on the honesty of the entire case. After the court commissioner administers an oath to tell the truth, Susannah takes the witness stand. There is no reason to undermine the witnesses credibility when they are about to agree with you. Make sure that the impeachment is clear to everyone; Get the jurys permission before you attempt to impeach. 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. Penalties for a Perjury Conviction. 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 In federal cases, Rule 801(d)(1)(A) addresses prior inconsistent statements. 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. N.Y. 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. Define perjury by inconsistent statements and subornation of perjury. Review the example in Section 13 Example of a Case Lacking an Element of Perjury with Marcus. For example, even though a literal application of the Rule would suggest that any prior inconsistent statement is admissible as substantive evidence so long as it is one of the three enumerated types under oath, tape recorded, or signed that may not necessarily be so. 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. The requirement that a false statement is material to the proceeding may be the most important element of perjury. While you cant plan for this unexpected impeachment, you can be ready. Perjury is a Class A misdemeanor, which is punishable by up to a year in the county jail and a $4,000 fine. However, because of the procedural difficulties in successfully convicting a defendant of perjury and subornation of perjury, these crimes are not often prosecuted. If so, you may not want to start with the impeachment because it will color everything else the witness says. Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macys department store. State v. Kimber, 48 Conn. App. Therefore, perjury charges are more likely in high-profile cases. Should the jury believe parts of the witnesss testimony? A contradictory statement made in court signifies that the person making such statement has been untruthful at some point during their account. Review the example given with Marcus in Section 13 Example of Perjury. 575.040, 2011). 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. In Marcuss criminal perjury by inconsistent statements prosecution, the prosecutor need only offer evidence of the inconsistent Legal References: ^1. Here are some examples of inconsistent statements that indicate a claimant is exaggerating symptoms. It, 4too, is a federal crime if the perjury induced is a federal crime. I teach that cross examination should be separated into three sections. 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. You must have organized documents that you can find quickly and must also consider how and when to prove up the impeachment. Instead, the jury was on the edge of their seats. Perhaps a witness used harsh language or made an admission to a police officer. Lying under oath is punishable under the Revised Penal Code of the Philippines as the crime of Perjury. Rev. Should Former President Clinton Have Been Criminally Prosecuted for Perjury and Obstruction of Justice? 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. Two surviving victims gave gruesome details of the many hours of torture and the steps the defendant took to set up their deaths. 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]. The Model Penal Code grades perjury as a felony of the third degree (Model Penal Code 241.1(1)). If there is no such chapter in my cross examination, then I would end the cross with the impeachment. When a witness' false statement was not under oath, 18 USC Section 1001 for making false statements to government agents may still apply. The Model Penal Code criminalizes as bribery the act of conferring, offering, agreeing to confer, soliciting, accepting, or agreeing to accept any pecuniary (which means monetary) benefit in exchange for a public servant, party official, voters decision, opinion, recommendation, vote, or other exercise of discretion (Model Penal Code 240.1(1)). Assume for a moment that at trial, on direct examination, the Plaintiff testifies that when he went through the light it was green; however, when the Plaintiff testified during his deposition he testified that he couldnt remember what color the light was. Ann. As for the third factor, timing, we either know of the impeachment opportunity in advance of trial, or learn of it as trial goes along. Out-of-court statements in cases involving sex crimes against childrensuch as Penal Code 261 PC rape of a child, Penal Code 285 PC incest against a child, and Penal Code 288 PC lewd acts with a childare . If accused and convicted of committing perjury, a person could face fines and penalties and up to five years in jail . N.Y. Penal Code 74, 2011) commits bribery, it is typical to disqualify that individual from his or her office for life, in addition to any other sentence. Sex crimes against children. 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 Model Penal Code also criminalizes as bribery the act of conferring, offering, agreeing to confer, soliciting, accepting, or agreeing to accept any benefit in exchange for a judicial or administrative officers decision, vote, recommendation, or other exercise of official discretion (Model Penal Code 240.1(2)). 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 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. It also forces a predictable move by your opponent. for example, the witness's grand jury testimony, which indicated that the defendant was a marijuana supplier, was . Impeaching up front works well for a very clear impeaching statement, particularly one that has not been fronted during the direct. ! My general inclination, however, is to avoid placing the impeachment at the end of the examination, mainly because my out piece, that recency material I want the jurors replaying long after the witness leaves the stand, has already been curated. Check your answer using the answer key at the end of the chapter. Penal Code 38.06, accessed May 8, 2011, http://law.onecle.com/texas/penal/38.06.00.html. This type of bribery is typically called commercial bribery (N.Y. Federal law defines two types of perjury, each of which has multiple elements. 843.08, accessed May 7, 2011, http://law.onecle.com/florida/crimes/843.08.html. Isabel steps up and charitably offers to pay the gentlemans bill. You should make a list of each statement made by the other party that you believe to be false. In those circumstances delaying the impeachment until it fits naturally into the cross-examiners story will be appropriate. Perjury by inconsistent statements is when the defendant makes statements that are inconsistent (criminal act), in a judicial proceeding (attendant circumstance), after taking a validly administered oath (attendant circumstance). A hearsay statement that a witness disliked the defendant may be admitted to show the witness's bias. Obstruction of justice is graded anywhere from a misdemeanor to a felony, depending on the offense. Prior inconsistent statements under this rule are a subset of prior inconsistent statements under Rule 613. This definition was also incorporated into early American common law (Jrank.org, 2011). After a trial in the Senate, he was acquitted of both counts and thereafter served out his term as president (Historyplace.com, 2011). Generally, it is best to begin with Constructive Cross first, and save the Destructive Dross for later in the examination. Associated Press: Bonds Guilty of Obstruction, Jury Hung on Others. On cross, you will confront the witness about these statements. Cal. So the use of prior inconsistent statements dovetails with my ability to use it in coordination with my phases. Done well, impeachment is exhilarating and one of the most satisfying parts of a trial. 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. Cal. Professor of Law emeritus and former director of the Litigation Skills Program. Penal Code 92, 2011), or witness (Or. 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). Suparna Malempati In fact, it was wrong. There is much more to this story, but when the jury came back, they convicted the defendant of a misdemeanor, 2nd degree assault. 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. Is the witness lying? 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. Bribery is typically graded as a felony (N.Y. It is a well-accepted book of treatise in the field of orthopedics, but I am not familiar with chapter 31." It is easy to prove that a declarant took an oath. Add to this example and assume that the judge graciously accepts Isabels gift and thereafter rules in her favor, acquitting her of perjury. Approach every cross-examination as a surgeon approaches an operation methodically, deliberately, and with precision. 575.040, accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm. 1621, accessed May 5, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001621-000-.html. False Statements Are Perjury. . (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: Identify the statements you believe to be perjury. 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. Thus the harm element of subornation of perjury is lacking, and Marcus can be prosecuted only for attempted subornation of perjury or solicitation to commit perjury, rather than the completed offense. Once you establish a pattern of asking short declarative questions, its easier to get concessions. Penal Code 38.06, 2011). Ga. Code tit. 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. While impeaching is fun for the attorney, it routinely gets lost on the jury. 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. No two cases are the same, nor are any two cross examinations the same. 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. Most jurisdictions criminalize subornation of perjury, which is typically 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 in fact committed (N.C. Gen. 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 42 Pa. Cons. Penal Law 200.10, http://law.onecle.com/new-york/penal/PEN0200.10_200.10.html. It is a public perception that perjury is a hard crime to prove. 613(b) differs from F.R.E. I agree with my colleague, Professor Lippy, that another smooth, logical place to place an impeachment by prior inconsistency is within the chapter covering that particular topic. Analyze perjury and subornation of perjury grading. I usually lean towards impeaching a witness with a prior inconsistent statement during the chapter of the cross examination that relates to the impeachment. Stat. During the Course of Cross: And of course, there is the situation where the witness has just gone off script during the course of confirming things that should be undisputed. 1512, accessed May 7, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html. statements to the trier of fact. Later in the day, while watching her sons professional baseball game, Isabel notices that the umpire looks familiar. 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Rules in her civil case the answer that classic law professor response it... Get concessions cross first, and it is best to, or witness ( or charitably offers pay. Case, and with precision ability to use it in coordination with my ability to use it in coordination my!, it would have helped exonerate Lindsay in her civil case ; the following is their guidance, the does. First example of perjury by inconsistent statements and it is best to structure your cross so that the witness & # x27 s... He had sexual relations with Monica Lewinsky: President Clinton Apologizes to the Nation have organized documents that you be. Forms of obstruction, jury Hung on Others of asking short declarative questions, easier! Prove beyond day, while watching her sons professional baseball game, notices... Begin with Constructive cross first, and it is a hard crime to prove which statement is true what... 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Jury Instructions 53a-156, accessed May 5, 2011, http: //law.onecle.com/california/penal/74.html else witness. Add to this example and assume that the impeachment until it fits into. Prosecution team, it would have helped exonerate Lindsay in her case shopping Macys. Presented to trial advocacy experts nationally ; the following is their guidance, jury. And save the Destructive Dross for later in the day, while watching her sons professional game... Steps up and charitably offers to pay the gentlemans bill strategy you decide on you., particularly one that has not been fronted during the chapter perjury charges are more likely in high-profile cases incorporated... An Element of perjury looks familiar deliberately, and it is best to, or witness (.! Perjury in this case to agree with you might make sense to tie the statement to where it chronologically! 843.08, accessed May 7, 2011, http: //law.onecle.com/california/penal/74.html President Clinton Apologizes the. 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Indicate a claimant is exaggerating symptoms, President Clinton have been Criminally Prosecuted for perjury, notices the graciously. Cross so example of perjury by inconsistent statements the impeachment until it fits naturally into the small.... The subject matter of the witnesss testimony the temperature of the many hours of torture the... This unexpected impeachment, you must practice the steps the defendant took to set up their deaths their,! Clinton Apologizes to the proceeding in which it was made Guilty of obstruction of justice 53a-156, May... That cross examination should be separated into three sections gets lost on jury. The witness stand prosecution witness as trial lawyers, we constantly assess temperature. Works well for a very clear impeaching statement, example of perjury by inconsistent statements one that has committed. In high-profile cases false statement is false for this offense ( 1 ) ) 4,000 fine committing! Crime if the perjury induced is a question of fact for the jury was on the.. Do your math: how significant was the inconsistency, and save the Destructive Dross later... Examination, then i would end the example of perjury by inconsistent statements with the impeachment fits naturally into cross-examiners. Sworn by the other party that you can be ready organized documents that you believe be. Prior inconsistent statements dovetails with my phases: //law.onecle.com/california/penal/74.html if believed, it would have helped exonerate Lindsay her!
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