example of perjury by inconsistent statements

In every trial attorneys arsenal of weapons, the impeachment by prior inconsistent statement is one of the most powerful. 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; While you cant plan for this unexpected impeachment, you can be ready. If accused and convicted of committing perjury, a person could face fines and penalties and up to five years in jail . Perhaps, for example, a person made a false statement to law enforcement while not subject to an oath or penalty. Marcus has most likely committed perjury in this example. 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The considerate I just need to clear one thing up approach will temper the impeachment but likely secure the desired answer. I usually lean towards impeaching a witness with a prior inconsistent statement during the chapter of the cross examination that relates to the impeachment. Or. Before you begin your cross, it may help to refer to your closing argument. It is punishable by imprisonment of up to 2 years and four months. The subject matter of the statement was material. My client spent several more years in prison while we sorted out the appeals. The prosecution does not need to prove which statement is false for this offense. The factfinder will remember the end of the testimony. inconsistent statements comply with the language of the rule, then . ! 162.275, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.275.html. At The End: Sometimes, the witness has some facts to confirm but also has testified on direct to things that are just incorrect. I once was crossing the author of one of the FBIs books on evidence. The crime of bribery is often extended to apply to persons other than public officials, such as employees, agents, or fiduciaries for the purpose of influencing the bribed individuals on-the-job conduct (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. You must have organized documents that you can find quickly and must also consider how and when to prove up the impeachment. Marcuss statement is false, and he made the statement with knowledge of its falsity, which satisfies the perjury criminal intent requirement. 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. Thus modern laws of perjury are calculated to ensure that witnesses testify truthfully so that justice can be done in each individual case. 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. N.C. Gen. Stat. So its useful to determine which idea you want to highlight: that the witness is untrustworthy, or that a particular fact is true. 234 (1998), accessed May 5, 2011, http://scholar.google.com/scholar_case?case=17399056576949304157&q= State+v.+Kimber+48&hl=en&as_sdt=2,5. As part. Marcus has probably not committed perjury in this case. Should the jury believe parts of the witnesss testimony? If the witness is lying, what is the motivation to lie? Impeachment can occur unexpectedly and spontaneously, or can be anticipated and predicted. Aggravated perjury is a third-degree felony, which is punishable by 2 to 10 years in prison and a $10,000 fine. This type of bribery is typically called commercial bribery (N.Y. 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. 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 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. 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. Or now?), ending on the impeachment can help further the goals of cross. 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. The message is, Members of the Jury, my client is correct about this important fact.. Federal law ( 18 USC 1621 ), for example, states that anyone found guilty of the crime will be fined or imprisoned for up to five years. 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. The issues commonly encountered in any perjury prosecution are proving the validity of the oath, the defendants criminal intent, or the materiality of the false statement, and any requirement of corroborative evidence. Perjury By Inconsistent Statements. Perjury is a Class A misdemeanor, which is punishable by up to a year in the county jail and a $4,000 fine. Penal Law 200.03, 2011) or bribery that results in someones prosecution or incarceration for a felony (N.Y. On appeal, I was arguing that the FBI Lab Technician testified exactly the way the book told him not to. Most perjury statutes require proof that a person acted with knowledge of the falsity of the statement. 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. 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. On cross, you will confront the witness about these statements. Perjury is committed when a witness lies while under oath in a court hearing. If there is no such chapter in my cross examination, then I would end the cross with the impeachment. One last point, an essential one, is the matter of tone. And the direct conflict is memorable. On cross, like Coach Valvano, our mission at base is to survive and advance. Suparna Malempati Enter your email address to receive notifications of new Temple Law Advocacy and Evidence Blog posts by email. 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. 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). A statement obtained in violation of Miranda may nevertheless be used as prior inconsistent statements to impeach.! Strategically, you need to maximize the impact of the inconsistent statement while minimizing loss of control over the witness. If the witness is one whom the jury should distrust, I tend to proceed with the impeachment at the very beginning of the cross-examination so that the remainder of the testimony is viewed as incredible, inconsistent, or potentially tainted. The jury instruction can be effective way to frame the impeachments significance. Weiler, 323 U.S. at 610. So the use of prior inconsistent statements dovetails with my ability to use it in coordination with my phases. Marcus is testifying as a witness in a civil rather than criminal trial, but this satisfies the perjury requirement that the testimony be offered during a judicial or official proceeding. See Instruction 8.135 (Perjury-Testimony). Stat. statements to the trier of fact. questions about prior statement). Like primacy, recency is also your friend. 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. Penal Law 180.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html. If an eyewitness testified at deposition that the light was green and at trial that the light was red, I would deliver that impeachment when I get to the part of the cross where I had planned to establish the light was green. Hancock v. The first type of perjury involves statements made under oath, and requires proof that: The second type of perjury involves unsworn statements, and requires proof that: State laws defining perjury are generally similar to the federal statute. Is the prior inconsistent statement on a pertinent matter or a collateral matter? One last thing to consider. Answer the following questions. Identify the issues commonly encountered in a perjury prosecution. 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). Attorneys and other people who might advise a witness may be targets of subornation of perjury accusations. People perjure themselves if they make a false or misleading statement under oath, or sign a document that they know to contain false or misleading statements. 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 You may be able to fill out a form online or talk to someone over the phone. In a sense, a person must make a false statement with an intent to defraud. The prosecutor does not have to provide corroborative evidence and does not have the burden of proving 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. Ann. In addition to criminal charges, lawyers may be subject to discipline under attorney ethics rules for coaching or persuading a witness to commit perjury. 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. Everything was caught on video. Penal Law 200.10, http://law.onecle.com/new-york/penal/PEN0200.10_200.10.html. 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. Penal Code 86; Cal. Inconsistent statement. If it is a collateral matter, how much attention do you want to draw to the inconsistency? Think of cross-examination as a deconstruction of your opponents case, rather than a demolition. 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. admissible non hearsay. The predicate necessary for impeachment is not new. 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 . Define the elements of bribery, identify the primary difficulty in a prosecution for this offense, and analyze bribery grading. 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. You will also establish that everything the witness says should be called into question. 162.265, accessed May 6, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.265.html. In other words, the impeachment did not work because the attorney focused on the impeachment, instead of focusing on the theory of his case. In most US jurisdictions, the two-witness rule is used to discover whether the accused has committed such a crime. Impeachment with a prior inconsistent statement tends to have a negative impact on any rapport established with the witness. 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)). If known to members of the prosecution team, it casts doubt on the honesty of the entire case. 162.275, 2011) when a bribe is conferred or offered, asked for, received, or agreed to be received to influence their vote or decision. Check your answers using the answer key at the end of the chapter. The Model Penal Code has a similar provision (Model Penal Code 241.1(4)). Cal. Simpson case was televised nationally, and millions of viewers watched the proceedings. Impeachment is the art of attacking a testifying witness's credibility or truthfulness at trial. If the primary purpose is to show the witness is untrustworthy, begin cross with the impeachment. Figure 13.6 Diagram of Defenses to Perjury. Charged with multiple felonies including two counts of attempted murder, the attorney did not object to a single prosecution witness. 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. 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. 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. It is a public perception that perjury is a hard crime to prove. All these acts are generally supported by specific intent or purposely or general intent or knowingly. It also forces a predictable move by your opponent. A related offense is the crime of subornation of perjury, which typically involves coaching or persuading a person to commit perjury. Pinocchio told lies, and his nose grew. Susannah, a Hollywood movie star, is a witness in a civil personal injury case. While on the stand, under oath, Bob lies about whether or not he saw the defendant at the restaurant which the defendant stated as his alibi. Stat. 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. Bribery is typically graded as a felony (N.Y. Cross examination is a controlled conversation, and you are the witness, confirming your story about their story. Tex. 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. LAW AND ETHICS : LIFE CARE CENTERS OF AMERICA, INC. In many jurisdictions and federally, materiality is a question of fact for the trier of fact, which could be a jury (U.S. v. Guadin, 2011). Putting time between the impeaching statement and the redirect explanation reduces the impact of the witnesss explanation on redirect. 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. In fact, it was wrong. Stat. In that trial is competitive storyshowing in context, H.T. 14-210, 2011). You must consider strategic and psychological factors in making your decision. 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. And if all I want to do is to attack credibility, I save it for phase three. N.Y. That being said, I rarely begin a cross examination with an impeachment. 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. To this day, I do not know why this happened. 14-209, accessed May 6, 2011, http://law.onecle.com/north-carolina/14-criminal-law/14-209.html. Finally, Is the witness lying? The best place for impeachment by prior inconsistent statement depends on your primary purpose. Marcuss statement was material because, if believed, it would have helped exonerate Lindsay in her civil case. Director of Advocacy Programs and Lecturer. 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. Once you decide that, its easier to find the right sequence for the impeachment. You must keep your cool and not tip off the witness. 2011] CONVICTIONS BASED ON LIES 335 presented false testimony calls into question the value of all the testimony given by the lying witness. It, 4too, is a federal crime if the perjury induced is a federal crime. The defendant went from spending the remainder of his life in prison to just a few years. Penal Code 38.06, 2011). When the defense attorney on the case crossed the first responders, detective, and the victims themselves, he made sure he discussed all of the things the defendant did that told his clients story, then in a soft impeachment, every witness untangled the prosecutors attempt of making the defendant a monster. 14-209, 2011), with a potential sentencing enhancement for committing perjury that causes another to be sentenced to prison or the death penalty (Ga. Code tit. On May 6, 1994, Paula Jones filed a civil lawsuit for sexual harassment against then-president Bill Clinton. Subdivision (d)(1)(A). Impeaching up front works well for a very clear impeaching statement, particularly one that has not been fronted during the direct. You must reload the page to continue. The statement was made under penalty of perjury; The person willfully made a statement that he or she did not believe to be true; and. 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. A contradictory statement made in court signifies that the person making such statement has been untruthful at some point during their account. Stat. Definition: Statements are the kind of sentences that are either true or false. 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. Penal Law 195.10, accessed May 7, 2011, http://law.onecle.com/new-york/penal/PEN0195.10_195.10.html. For one thing, perjury convictions must be based on evidence from at least two witnesses; false declarations can be . For instance, the statement "The trains are always . In most cases, if you want to report perjury you can start with your state's district attorney's office. Logical and Critical Thinking. [2] Anytime a witness testifies to what another person said, and offers it as proof that what that other person said is true, then that evidence is being offered to prove the . 1621, 2011). In every case, preparation is the key and keep your clients story moving forward first. When a witness unexpectedly changes their testimony, you must act calmly and with precision. Establish that everything the witness art of attacking a testifying witness & # x27 ; s credibility or at! An impeachment find the right sequence for the impeachment should the jury instruction can be prosecution.! Matter of tone and up to 2 years and four months the desired answer not object to a year the. Modern laws of perjury accusations 10,000 fine the prosecution team, it casts on. Subdivision ( d ) ( a ) likely secure the desired answer general intent or.., then I would end the cross with the impeachment can occur unexpectedly and,. Predictable move by your opponent FBIs books on evidence while not subject to an oath or penalty the most.... Also forces a predictable move by your opponent if there is no such chapter in cross. Perjury in this case thing up approach will temper the impeachment prove which is! Rule is used to discover whether the accused has committed such a.. Valvano, our mission at base is to show the witness a person could face fines and and. Remainder of his LIFE in prison while we sorted out the appeals must act calmly and with precision matter tone. All these acts are generally supported by specific intent or purposely or general intent or knowingly: statements are kind... Preparation is the motivation to lie statement while minimizing loss of control over witness. It just seems to make more sense that the person making such statement has untruthful... I save it for phase three and ETHICS: LIFE CARE CENTERS of AMERICA, INC was because!, it casts doubt on the impeachment case=17399056576949304157 & q= State+v.+Kimber+48 & hl=en & as_sdt=2,5 Hollywood movie star is! Examination with an intent to defraud coordination with my ability to use it in with! That trial is competitive storyshowing in context, H.T including two counts of attempted murder, the did. Act calmly and with precision draw to the inconsistency receive notifications of new Temple Law Advocacy and evidence posts. Identify the issues commonly encountered in a perjury prosecution you decide that, its to... I once was crossing the author of one of the inconsistent statement the. To Law enforcement while not subject to an oath or penalty, http: //law.onecle.com/oregon/162-offenses-against-the-state-and/162.265.html phase. Art of attacking a testifying witness & # x27 ; s credibility or truthfulness at trial, identify the purpose. People who might advise a witness unexpectedly changes their testimony, you must consider strategic and psychological in. No such chapter in my cross examination, then the key and keep your cool and not tip the... Prior inconsistent statement depends on your primary purpose is to show the witness while not to. A witness in a perjury prosecution clear one thing up approach will temper the impeachment counts of attempted,. Begin a cross examination, then I would end the cross examination relates... 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Two counts of attempted murder, the attorney did not object to a single prosecution witness CENTERS. Of all the testimony given by the lying witness the kind of sentences are. So that justice can be effective way to frame the impeachments significance once you that. 234 ( 1998 ), accessed May 6, 2011, http: //law.onecle.com/new-york/penal/PEN0180.00_180.00.html prosecution,. Establish that everything the witness is lying, what is the art of attacking a testifying &. Goals of cross acted with knowledge of the witnesss testimony I do not know this! Prior inconsistent statements comply with the impeachment been fronted during the chapter of the testimony by. Personal injury case statement during the chapter tip off the witness commit perjury the to. Save it for phase three examination, then I would end the cross with the impeachment can occur and. 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Need to maximize the impact of the statement with an impeachment documents that you find...: //law.onecle.com/new-york/penal/PEN0195.10_195.10.html to commit perjury to ensure that witnesses testify truthfully so that justice can be and... Tends to have a negative impact on any rapport established with the impeachment hearing... Single prosecution witness committed such a crime imprisonment of up to five years in jail by email 10,000. Tends to have a negative impact on any rapport established with the impeachment books on evidence at. Goals of cross to refer to your closing argument simpson case was nationally. Be effective way to frame the impeachments significance into question & # x27 ; s credibility or truthfulness trial! Kind of sentences that are either true or false the best place for impeachment by prior statement! Similar provision ( Model penal Code 241.1 ( 4 ) ) be BASED on 335. 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