The criminal offense of perjury consists of making a false statement under oath, either in writing or verbally, that one knows is false, and that is material to the proceedings in which the statement is made. 1. Inconsistent statement. 720 ILCS 5/31-4.5, accessed May 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.5.html. Director of Advocacy Programs and Lecturer. Clinton: I did not have sexual relations with that woman. c. And the witness is available for cross-examination When the statement is partly inconsistent and partly consistent a. Asking the impeachment at the end if safe and effective. A contradictory statement made in court signifies that the person making such statement has been untruthful at some point during their account. The Model Penal Code allows for an oath or equivalent affirmation (Model Penal Code 241.1(1)). Bribery is typically graded as a felony (N.Y. Penal Code 85, accessed May 6, 2011, http://law.onecle.com/california/penal/85.html. In this video, President Clinton denies that he had sexual relations with Monica Lewinsky: President Clinton Apologizes to the Nation. For instance, former LAPD detective Mark Fuhrman pleaded no contest to perjury charges stemming from the murder trial of O.J. The placement of your confrontation with an inconsistent statement really depends on what you are trying to accomplish, and the behavior of the witness. 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). N.C. Gen. Stat. 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. One of the most common forms of impeachment during cross-examination at trial is with a prior inconsistent statement, such as deposition or affidavit testimony.The objective of impeachment is to establish that the witness is not a trustworthy witness, hence the reason it is referred to as . In a sense, a person must make a false statement with an intent to defraud. Penal Code 93), any judicial officer, juror, referee, umpire (Cal. Whether the prior statement helps you, hurts you, or, albeit inconsistent, does neither, the when question takes these factors into consideration: Significance (the contrast between the statements), Materiality (the importance of the impeachment to your case), and. The factfinder will remember the end of the testimony. 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. For me, when you decide to impeach boils down to two things: There is a reason why Ted Talks are 17 minutes long. As Edgar Allan Poe once advised, the denouement or ending must always be in view. Stat. 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. statements to the trier of fact. Attorneys and other people who might advise a witness may be targets of subornation of perjury accusations. Cal. Accordingly, it is necessary to include materiality as an element of the offense in this instruction. For example, lying under oath that you do not wear glasses could be considered perjury when you are testifying about what you have seen. Ariz. Rev. 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. Or. Professor of Law emeritus and former director of the Litigation Skills Program. 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. 1621.) the statement is one of identification of a person the declarant made after perceiving that person. It requires proof of more than just a false statement in a court proceeding or otherwise under oath. 575.040, accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm. The second and more important reason why the impeachment with a prior inconsistent statement should not be done first is because I dont think it would make any sense to start the cross that way. There are also inconsistent statements you can count on. 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. Rev. Choose a delete action Empty this pageRemove this page and its subpages. 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. Perjury Charges in High-Profile Cases Figure 13.9 Diagram of Perjury, Bribery, and Obstruction of Justice. 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. . 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). Is the prior inconsistent statement on a pertinent matter or a collateral matter? 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. While the defense attorney was attempting to impeach the witness, I realized that he was nitpicking certain facts that were not in dispute. 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. The two are very similar, but false declarations tend to be easier to prove. 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. Add to this example and assume that the judge graciously accepts Isabels gift and thereafter rules in her favor, acquitting her of perjury. Stat. The Model Penal Code has a similar provision (Model Penal Code 241.1(2)). Two surviving victims gave gruesome details of the many hours of torture and the steps the defendant took to set up their deaths. 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. 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. Stat. In fact, it was wrong. 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). Felonies carry a possible prison sentence of at least one year, plus fines and probation. 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. The Model Penal Code grades perjury as a felony of the third degree (Model Penal Code 241.1(1)). Lindsays conversion trial, which is a judicial proceeding. 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. Ann. 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 this example, both the judge and Isabel have likely committed bribery because most states criminalize the conferring, offering, and accepting and receiving a bribe as the criminal act elements. And if all I want to do is to attack credibility, I save it for phase three. 1512, accessed May 7, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html. Although Marcus tried to procure Janelle to commit perjury, with specific intent or purposely, Janelle did not cooperate and did not commit the perjury. If Marcuss jurisdiction Approach every cross-examination as a surgeon approaches an operation methodically, deliberately, and with precision. In Marcuss criminal perjury by inconsistent statements prosecution, the prosecutor need only offer evidence of the inconsistent statements to the trier of fact. All these acts are generally supported by specific intent or purposely, or general intent or knowingly. 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). When this occurs, the prosecutor can attempt to prove that the two statements are inconsistent, and both cannot be true. 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. 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. 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. Prepare hard, be confident, listen well, and trust yourself, and youll do just fine. If not, stick to your story first, then pick your place based on the acceptance of the jury. Penal Law 195.10, accessed May 7, 2011, http://law.onecle.com/new-york/penal/PEN0195.10_195.10.html. 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. Ala. Code 13A-10-61, accessed May 7, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-61.html. Cross examination is a controlled conversation, and you are the witness, confirming your story about their story. Legal References: ^1. The Supreme Court has held that materiality is a question of fact for the jury. Obstruction of justice offenses are most often graded as a misdemeanor or felony, depending on the offense. b. 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. The Model Penal Code has a similar provision (Model Penal Code 241.1(5)). Marcus has not committed subornation of perjury in this case. 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. Related to DECLARATION UNDER PENALTY OF PERJURY. 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 We had an evidentiary hearing with the author of the book on the stand. The Model Penal Code also considers a false written statement perjury, as long as the document containing the statement is made upon oath or affirmation (Model Penal Code 241.1(3)). N.Y. When I begin a cross-examination by impeaching the witness, I may adjust the overall order of my cross-examination outline if there is chronological or topical significance to the impeachment point. The subject matter of the statement was material. The prosecutor does not have to provide corroborative evidence and does not have the burden of proving If the witness is lying, what is the motivation to lie? 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. 6065, accessed May 5, 2011, http://www.law.cornell.edu/uscode/26/usc_sec_26_00006065-000-.html. Deposition excerpts, Jones v. Clinton deposition, Historyplace.com website, accessed May 9, 2011, http://www.historyplace.com/unitedstates/impeachments/jones-deposition.htm. Sometimes you cant plan for impeachment lighting strikes and out of the blue a witness testifies to something different than a prior statement. Figure 13.7 Comparison of Perjury by Inconsistent Statements and Subornation of Perjury. Penal Code 93, http://law.onecle.com/california/penal/93.html. 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. The predicate necessary for impeachment is not new. As a prosecutor, I would have already completed my case-in-chief (and hopefully gained the trust of the jury) before cross-examining any defense witness who may be impeached. The message is, Members of the Jury, my client is correct about this important fact.. An investigation pursuant to the Jones lawsuit revealed that the president was currently having an affair with a White House intern, Monica Lewinsky (Historyplace.com website, 2011). You should make a list of each statement made by the other party that you believe to be false. Perjury is generally graded as a felony (N.C. Gen. Stat. 2. 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Professor of Law emeritus and former director of the many hours of torture and the steps defendant... Up their deaths not committed subornation of perjury then-president Bill Clinton to that. Has held that materiality is a controlled conversation, and you are the is... May 7, 2011, http: //www.law.cornell.edu/uscode/26/usc_sec_26_00006065-000-.html ) ) impeach the witness, I save it phase... And probation partly consistent a video, President Clinton Apologizes to the Nation approaches an methodically!
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