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)). When you do that, you increase the likelihood of success with the jury, whatever your point may be in closing. Simpson case was televised nationally, and millions of viewers watched the proceedings. When a state legislator (Cal. 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. Because this is a very important issue of the criminal case, Bob has committed perjury, whether his lie is in favor or against the defendant. 5A-11, et seq., accessed May 8, 2011, http://law.onecle.com/north-carolina/5a-contempt/index.html. Prosecutors cannot prosecute every crime that they come across and must prioritize their caseload. When a witness' false statement was not under oath, 18 USC Section 1001 for making false statements to government agents may still apply. If Marcuss jurisdiction Penal Law 200.10, http://law.onecle.com/new-york/penal/PEN0200.10_200.10.html. Is the prior inconsistent statement on a pertinent matter or a collateral matter? When done quickly, and with precision, the witness learns rapidly that the answer to any question you ask is yes. Cons: Anything buried in the middle risks becoming forgettable. On cross, you will confront the witness about these statements. 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. But, of course, there is no one size fits all solution. 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. Penal Law 195.10, accessed May 7, 2011, http://law.onecle.com/new-york/penal/PEN0195.10_195.10.html. 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. 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. 575.040, 2011). N.Y. And who doesnt love the twist ending? 162.295, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.295.html. Bribery is typically graded as a felony (N.Y. If so, is the witness lying about everything or just some things? And if the opportunity arises during cross, again, do your math: how significant was the inconsistency, and how material? Ala. Code 13A-10-108, accessed May 5, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-108.html. The factfinder will remember the end of the testimony. [The contributors are presented alphabetically, with this author providing the concluding assessment. 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. Later in the day, while watching her sons professional baseball game, Isabel notices that the umpire looks familiar. Obstruction of justice is graded anywhere from a misdemeanor to a felony, depending on the offense. 14-210, 2011). The Supreme Court has held that materiality is a question of fact for the jury. 843.08, accessed May 7, 2011, http://law.onecle.com/florida/crimes/843.08.html. Stat. 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. A statement obtained in violation of Miranda may nevertheless be used as prior inconsistent statements to impeach.! Ann. 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. Attorneys and other people who might advise a witness may be targets of subornation of perjury accusations. Penalties for a Perjury Conviction. In a sense, a person must make a false statement with an intent to defraud. Or. Lindsays conversion trial, which is a judicial proceeding. Penalties for Perjury. 162.275, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.275.html. The Model Penal Code also has this corroborative evidence requirement (Model Penal Code 241.1(6)). 6065, accessed May 5, 2011, http://www.law.cornell.edu/uscode/26/usc_sec_26_00006065-000-.html. Cross examination is a controlled conversation, and you are the witness, confirming your story about their story. 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. Review the example with Marcus in ***Section 13 "Example of Perjury". Marcus made two inconsistent statements while under a validly administered oath in Rev. It's a two-pronged criminal offense requiring inducement by one person, and then perjury by another. My best laid plan did not materialize when I needed it to the most, but because the impeachment attempt was clear, the appeals court understood and we ultimately won freedom for an innocent man wrongfully accused of a crime he did not commit. Stat. These are the type of questions that should guide your decision when to impeach. 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 Pinocchio told lies, and his nose grew. 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. 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 Like primacy, recency is also your friend. Professor of Law emeritus and former director of the Litigation Skills Program. Clinton: I did not have sexual relations with that woman. For me, when you decide to impeach boils down to two things: There is a reason why Ted Talks are 17 minutes long. Ann. She knows the case will generate significant publicity, so Susannah shaves ten years off of her age when asked routine background questions by the prosecutor. Example 1 The claimant claimed she couldn't work due to back pain and said that she could not sit or stand for more than a few minutes at a time. 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). Penal Code 85, 2011; Cal. 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. As to significance, when comparing the inconsistency, are we talking black and white, or beige and grey? If accused and convicted of committing perjury, a person could face fines and penalties and up to five years in jail . Because you have them on record, already. 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. Penal Code 93, http://law.onecle.com/california/penal/93.html. 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. ! Review the example given with Marcus in Section 13 Example of Perjury. Stat. Wong, 431 U.S. 174, 180 (1977) (recognizing that perjury is never a protected option). 6065, 2011) or a report (Cal. 16 16-10-70, accessed May 5, 2011, http://law.onecle.com/georgia/16/16-10-70.html. 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. 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. N.Y. 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). When an inconsistent statement is elicited on cross-examination, I recommend impeaching the witness right then and there. Stat. Change this example and assume that the judge in question is an imposter who is merely masquerading as a judge to live out a lifelong fantasy. Penal Law 200.04, 2011). criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. The challenge is for the jury and prosecution to find out the truth, the whole . Cal. One last point, an essential one, is the matter of tone. 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. Gearan, A., Clinton Disbarred by Supreme Court, Famguardian.org website, accessed May 9, 2011, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm. 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. You must keep your cool and not tip off the witness. Fla. R. Evid. 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. 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. Or now?), ending on the impeachment can help further the goals of cross. Rev. Marcus made two inconsistent statements while under a validly administered oath in Lindsays conversion trial, which is a judicial proceeding. On May 6, 1994, Paula Jones filed a civil lawsuit for sexual harassment against then-president Bill Clinton. During a Jones lawsuit deposition, the president stated under oath that he did not have sexual relations with Ms. Lewinsky pursuant to the definition of sexual relations given by the questioning attorneys (Deposition excerpts, 2011). Although Marcus tried to procure Janelle to commit perjury, with specific intent or purposely, Janelle did not cooperate and did not commit the perjury. 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. The defendant went from spending the remainder of his life in prison to just a few years. Keep your cool and not tip off the witness about these statements then and there knowingly mak [ ing a..., 431 U.S. 174, 180 ( 1977 ) ( recognizing that perjury is a. Marcus in * * Section 13 `` example of perjury '', do your math how... Questions that should guide your decision when to impeach. elicited on cross-examination, I recommend the... 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