I teach that cross examination should be separated into three sections. Where it fits into the overarching story the cross-examiner needs to tell. Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macys department store. Do a search online to find the office's website and click on the contact link there. Penalties for Perjury. 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. Clinton v. Jones, 520 U.S. 681 (1997), accessed May 9, 2011, http://www.law.cornell.edu/supct/html/95-1853.ZS.html. 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. If Marcuss jurisdiction criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. 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. The attorney carefully watched the jury members reactions and determined when he had their permission. In some instances, you can predict an inconsistent statement. Mo. Does it make our theory of the case (or break theirs), sufficiently undermining the witness testimony or the witness themself, or does it fall somewhere short of that mark? Penal Law 200.04, 2011). The Model Penal Code also has this corroborative evidence requirement (Model Penal Code 241.1(6)). Under Rule 801(d)(1)(A), prior inconsistent statements are not hearsay when the declarant testifies at the trial, is subject to cross-examination, and gave the prior statement under oath subject to perjury. 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). Prepare hard, be confident, listen well, and trust yourself, and youll do just fine. 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. Penal Code 88, 2011) or a public official (Cal. And as to materiality, just how important is the point that we intend? 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. It, 4too, is a federal crime if the perjury induced is a federal crime. 1621, accessed May 5, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001621-000-.html. In most US jurisdictions, the two-witness rule is used to discover whether the accused has committed such a crime. 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. Clinton: I did not have sexual relations with that woman. Marcuss statement was material because, if believed, it would have helped exonerate Lindsay in her civil case. Penal Law 200.00, 2011) with enhancements for bribery that is carried out with a larger sum of money (N.Y. 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. Related to DECLARATION UNDER PENALTY OF PERJURY. Primacy is your friend and the factfinder will remember the first few minutes of the cross. 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. 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. Content is out of sync. 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. Thus all the elements of perjury appear to be present, and Marcus may be subject to prosecution for and conviction of this offense. When done quickly, and with precision, the witness learns rapidly that the answer to any question you ask is yes. You may want it to be the last thing (or almost the last thing) your fact finder hears from the witness. 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)). In the Middle Ages, the witnesses were the jurors, so the criminalization of false witness testimony did not occur until the sixteenth century when the idea of a trial by an impartial jury emerged. NITA Trial/Deposition Program Director (Emeritus), Adjunct Professor of Law, Seattle University School of Law. No two cases are the same, nor are any two cross examinations the same. 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. A statement is not hearsay if 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; (b . In a sense, a person must make a false statement with an intent to defraud. Marcus made a falsestatement, under a validly administered oath, in a judicialproceeding, with knowledgeof its falsity. 5A-11, et seq., accessed May 8, 2011, http://law.onecle.com/north-carolina/5a-contempt/index.html. In this video, President Clinton denies that he had sexual relations with Monica Lewinsky: President Clinton Apologizes to the Nation. Their facial and body movements showed their displeasure and questions of the attorney wasting their time. 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. So 801 (d) (1) identifies three categories of prior statements made by witnesses that are simply "not hearsay": 1. In that trial is competitive storyshowing in context, H.T. N.Y. ! 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)). The requirement that a false statement is material to the proceeding may be the most important element of perjury. 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. Marchand, 7 . Isabel thereafter buys an expensive watch, has it wrapped, walks up to the judge, and offers it to him as a gift. 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. Example 1: Bob is called to testify in a robbery case. As to significance, when comparing the inconsistency, are we talking black and white, or beige and grey? A contradictory statement made in court signifies that the person making such statement has been untruthful at some point during their account. And who doesnt love the twist ending? It establishes that (remember My Cousin Vinney?) This article is published in final form as a NITA White Paper. Be certain that the impeachment is necessary and consider whether you can simply refresh the witnesss recollection rather than pointing out an inconsistency. Most jurisdictions define perjury as a false material statement (criminal act), made with specific intent or purposely to deceive, or the general intent or knowingly that the statement was false, in a judicial or official proceeding, or in a certified writing (attendant circumstance), under oath (attendant circumstance). There was no doubt where it happened, when it happened or how it happened. If there is no such chapter in my cross examination, then I would end the cross with the impeachment. 1512, accessed May 7, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html. You must have organized documents that you can find quickly and must also consider how and when to prove up the impeachment. Retraction as a Defense. There, it usually is best to structure your cross so that the impeachment comes toward the end of the cross. The perjury charges support the obstruction of justice charge, so the defense asked for a court dismissal of the obstruction of justice conviction in order to clear the way for an appeal (Ortiz, J. L., 2011). When the defense attorney made excellent strides that went towards the theory of his clients case, the jury was not paying attention and ultimately, the defendants were convicted. 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. 1. The placement of your confrontation with an inconsistent statement really depends on what you are trying to accomplish, and the behavior of the witness. Isabel steps up and charitably offers to pay the gentlemans bill. The O.J. Associate Director of the Center for Advocacy and Dispute Resolution Isabel has most likely committed bribery in this case. The Model Penal Code has a similar provision (Model Penal Code 241.1(4)). The two are very similar, but false declarations tend to be easier to prove. The Contractor shall perform the Work in . 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). 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. Code of Criminal Procedure, 38.18, accessed May 5, 2011, http://law.onecle.com/texas/criminal-procedure/38.18.00.html. The attention span of individuals is very short. They stopped listening. Marcus's statement was materialbecause, if believed, it would have helped exonerate Lindsay in her civil case. We had an evidentiary hearing with the author of the book on the stand. Even under oath, if the witness lies concerning an immaterial subject that is irrelevant to the proceeding, it's not classified as perjury. 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. Check your answer using the answer key at the end of the chapter. Professor of Law emeritus and former director of the Litigation Skills Program. Ga. Code tit. Note that Bondss obstruction of justice charge of evading the question and refusing to give evidence appears easier to prove than the perjury charges, which have a daunting criminal intent requirement, as discussed in Section 13 Perjury Criminal Intent. The factfinder will remember the end of the testimony. Statements by children. I usually lean towards impeaching a witness with a prior inconsistent statement during the chapter of the cross examination that relates to the impeachment. Add to this example and assume that Marcus begs Janelle, another witness in Lindsays conversion trial, to say that she did not see him at Macys the day Lindsay stole the necklace. I understand Professor Lippys motivation to gain credibility as the questioner before venturing into a witness impeachment. On cross, like Coach Valvano, our mission at base is to survive and advance. When the Macys attorney asks Marcus what he was doing at Macys, Marcus responds that he was buying some jewelry as a gift for his wife. 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. Mo. Should Former President Clinton Have Been Criminally Prosecuted for Perjury and Obstruction of Justice? 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. 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 definition of perjury is therefore much more complicated than many people realize. Slightly inconsistent: exclude it b. Penal Code 86; Cal. 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. 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. Define perjury by inconsistent statements and subornation of perjury. That being said, I may delay impeaching a witness when there is helpful or affirmative information to be gained during cross-examination. Code of Criminal Procedure, 38.18, 2011). For instance, former LAPD detective Mark Fuhrman pleaded no contest to perjury charges stemming from the murder trial of O.J. Thus, the jury would most likely have an easier time understanding what I am doing when I point out the inconsistencies. Penalties for a Perjury Conviction. Stat. To establish the offence, the prosecution must prove beyond . Fla. Stat. Penal Code 74, accessed May 7, 2011, http://law.onecle.com/california/penal/74.html. In the closing, he argued that the defendant was enraged when he saw his ex-wife with her boyfriend and that while at the moment he wanted to hurt and kill them, he really acted out of love. He viewed it as capable of serving two ends: proving untruths and completing the story by eliciting facts that remained suppressed or undeveloped on direct examination, including the remaining and qualifying circumstances of the subject of testimony, as known to the witness., Precisely because of the presence of dual objectives, timing is everything. Said differently, assume a witness has information useful to the cross-examiner but also made an averment during direct examination that must be impeached with a clearly contradictory prior inconsistent statement. 575.040, 2011). Examples of inconsistent statement Marcus's jurisdiction criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. The disclosure requirement in paragraph (a) is intended to deter sham allegations of the existence of an inconsistent statement. Figure 13.8 Diagram of Defenses to Bribery. For one thing, perjury convictions must be based on evidence from at least two witnesses; false declarations can be . 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. Cross examination is a controlled conversation, and you are the witness, confirming your story about their story. Penal Code 93, http://law.onecle.com/california/penal/93.html. 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. Subornation of perjury is a fancy legal name for inducing someone else to lie under oath, and then that person, when called as a witness, goes through with the lie. 2011] CONVICTIONS BASED ON LIES 335 presented false testimony calls into question the value of all the testimony given by the lying witness. Isabel notices a gentleman struggling to pay his bill at a local coffee shop. Legal definition of bribery, Duhaime.org website, accessed May 6, 2011, http://www.duhaime.org/LegalDictionary/B/Bribery.aspx. As a general rule, the more significant the contrast is between the two statements, and the more material the impeachment point to be made is to your theory of the case, the more prominent a role this part of the cross must play. However, it would not be perjury if your witness statement was about what you have heard and not seen. 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. Instead of answering yes or no to this question, Bonds began reminiscing about his friendship with the trainer, who went to prison four times in five years for also refusing to testify in the investigation (Macur, J., 2011). My short answer is that there is no hard and fast rule. Even the decorated detectives spoke about the confession and how the defendant said he did it because he loved her. It is punishable by imprisonment of up to 2 years and four months. 14-210, accessed May 6, 2011, http://law.onecle.com/north-carolina/14-criminal-law/14-210.html. 843.08, accessed May 7, 2011, http://law.onecle.com/florida/crimes/843.08.html. And if all I want to do is to attack credibility, I save it for phase three. Perjury is generally graded as a felony, with a potential sentencing enhancement for committing perjury that causes another to be sentenced to prison or the death penalty. 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. Rev. Suparna Malempati 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. AS 11.56.230. If the primary purpose is to show the witness is untrustworthy, begin cross with the impeachment. The predicate necessary for impeachment is not new. Stat. In Marcuss criminal perjury by inconsistent statements prosecution, the prosecutor need only offer evidence of the inconsistent 162.265, 2011; Or. 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. N.Y. He thereafter testifies that he saw Lindsay try on the necklace and then walk out of the store without paying for it. Atlantas John Marshall Law School. A statement obtained in violation of Miranda may nevertheless be used as prior inconsistent statements to impeach.! 16 16-10-70, accessed May 5, 2011, http://law.onecle.com/georgia/16/16-10-70.html. Attorneys and other people who might advise a witness may be targets of subornation of perjury accusations. Thus Marcus is probably not subject to prosecution for and conviction of perjury, based on his testimony in this case. Bribery is typically graded as a felony (N.Y. Most state laws have similar provisions, but judges typically have the discretion to use . 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. Inconsistent statement. You will also establish that everything the witness says should be called into question. N.Y. Add to this example and assume that the judge graciously accepts Isabels gift and thereafter rules in her favor, acquitting her of perjury. Stat. 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. Bribery is often compared to extortion, yet extortion is considered a crime of threatened force or violence, while bribery involves financial inducement (U.S. v. Adcock, 2011). Texas Penal Code 37.02 ^2. Ann. Sometimes you cant plan for impeachment lighting strikes and out of the blue a witness testifies to something different than a prior statement. Ann. Perhaps, for example, a person made a false statement to law enforcement while not subject to an oath or penalty. Statements inconsistent with the statement the . Marcuss statement is false, and he made the statement with knowledge of its falsity, which satisfies the perjury criminal intent requirement. Big mistake. Cal. To this day, I do not know why this happened. Janelle flatly refuses. Or better yet (if you have it), cross the witness into a corner forcing them to admit that when it comes to their inconsistencies the best they can hope for is that the jury takes their word for it and then follow through with your safety net: a strong character impeachment point for untruthfulness, or (even better) impeachment with a prior conviction for a crime of dishonesty. Connecticut Jury Instructions 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. 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. 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. Penal Law 200.10). 13-2705.Perjury by inconsistent statements. Simpson case was televised nationally, and millions of viewers watched the proceedings. A statement is true if what it asserts is the case, and it is false if what it asserts is not the case. Cal. 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). 162.295, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.295.html. the statement is one of identification of a person the declarant made after perceiving that person. While you cant plan for this unexpected impeachment, you can be ready. N.Y. The Model Penal Code allows for an oath or equivalent affirmation (Model Penal Code 241.1(1)). 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 (a) A person commits the crime of perjury by inconsistent statements if. 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. Ann. Two surviving victims gave gruesome details of the many hours of torture and the steps the defendant took to set up their deaths. Stat. ], Director of A. Barry Cappello Program in Trial Advocacy, The best place for impeachment by prior inconsistent statement depends on your primary purpose. If known to members of the prosecution team, it casts doubt on the honesty of the entire case. And if the opportunity arises during cross, again, do your math: how significant was the inconsistency, and how material? 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). Easier to prove up the impeachment is necessary and consider whether you can predict an inconsistent.... Bribery, Duhaime.org website, accessed May 7, 2011, http //law.onecle.com/north-carolina/14-criminal-law/14-210.html... When he had sexual relations with Monica Lewinsky: President Clinton Apologizes to the.! Jury members reactions and determined when he had sexual relations with that woman the disclosure requirement in paragraph a... To use have organized documents that you can be ready must have organized documents that you can simply the., for example, a defendant on trial for perjury, based his. Requirement ( Model Penal Code allows for an oath or equivalent affirmation Model! 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Seq., accessed May 6, 2011, http: //www.law.cornell.edu/supct/html/95-1853.ZS.html perjury is. The inconsistent 162.265, 2011, http: //law.onecle.com/north-carolina/5a-contempt/index.html 520 U.S. 681 ( 1997 ) accessed... For phase three for perjury, notices the judge presiding in her civil case into a witness a. Clinton denies that he saw Lindsay try on the necklace and then walk out of the chapter ;.! Your friend and the factfinder will remember the first few minutes of the many hours of torture and steps. Rapidly that the impeachment 16-10-70, accessed May 7, 2011, http //law.onecle.com/oregon/162-offenses-against-the-state-and/162.295.html. Her civil case search online to find the office & # x27 ; s statement was about you! Case was televised nationally, and it is punishable by imprisonment of to... Made a false statement is true if what it asserts is not the case is therefore much complicated. 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Falsity, which satisfies the perjury induced is a controlled conversation, and precision.: //law.onecle.com/north-carolina/5a-contempt/index.html into a witness May be targets of subornation of perjury accusations statement was about you! The definition of bribery, Duhaime.org website, accessed May 6, 2011,:... To make more sense that the impeachment, Adjunct Professor of Law the recollection! A search online to find the office & # x27 ; s and... Relations with that woman was televised nationally, and millions of viewers watched jury! True if what it asserts is not the case chapter of the testimony Marcus could likely! A similar provision ( Model Penal Code 88, 2011 ) with for...
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