. 6065, 2011) or a report (Cal. 2011] CONVICTIONS BASED ON LIES 335 presented false testimony calls into question the value of all the testimony given by the lying witness. Director of Advocacy Programs and Lecturer. Penal Law 200.04, 2011). 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. Fla. R. Evid. Associate Professor of Law Everything was caught on video. 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 . 67 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. You will also establish that everything the witness says should be called into question. Marcus has probably not committed perjury in this case. 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. State and federal penalties for perjury include fines and prison terms upon conviction. 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. 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. Prior inconsistent statements under this rule are a subset of prior inconsistent statements under Rule 613. 575.040, accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm. criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. Isabel steps up and charitably offers to pay the gentlemans bill. Two surviving victims gave gruesome details of the many hours of torture and the steps the defendant took to set up their deaths. On cross, like Coach Valvano, our mission at base is to survive and advance. Here are some examples of inconsistent statements that indicate a claimant is exaggerating symptoms. Even if the testimony being impeached was not at the climax of the direct or was not especially devastating, the cross should start with the impeachment if the witness is likely to be uncooperative and a tight, controlling attack is needed to rein them in early. For one thing, perjury convictions must be based on evidence from at least two witnesses; false declarations can be . Juries depend on witness testimony to reach a fair and impartial verdict in civil and criminal trials, and grand juries depend on witness testimony to indict defendants for criminal conduct. In addition to criminal charges, lawyers may be subject to discipline under attorney ethics rules for coaching or persuading a witness to commit perjury. 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. Hancock v. This helps the fact finder keep clear what they should believe (you are just confirming the truth), versus what they should not believe. Stat. 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. Figure 13.7 Comparison of Perjury by Inconsistent Statements and Subornation of Perjury. Stat. Stat. It constituted a critical lapse in judgment and a personal failure on my part for which I am solely and completely responsible (Historyplace.com, 2011). The O.J. Marcus made a false statement, under a validly administered oath, in a judicial proceeding, with knowledge of its falsity. 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? Federal law defines two types of perjury, each of which has multiple elements. 5A-11, et seq., accessed May 8, 2011, http://law.onecle.com/north-carolina/5a-contempt/index.html. Rev. (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. 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. To establish the offence, the prosecution must prove beyond . One final point: the matter of safety nets. Whether on cross exam you clearly have the goods and are going strong, or, in dire straits, you have little to go on and forced to take a flyer with a barely inconsistent, marginally important, prior statement, a safety net a powerful, sure-fire, safe harbor in which to land is the cross examiners great comfort. Isabel has most likely committed bribery in this case. Charged with multiple felonies including two counts of attempted murder, the attorney did not object to a single prosecution witness. I like to predict the outcomes based on the reactions of the jury and I have a pretty good track record of predicting outcomes. Weiler, 323 U.S. at 610. Ann. They stopped listening. If not, stick to your story first, then pick your place based on the acceptance of the jury. 162.275, 2011) when a bribe is conferred or offered, asked for, received, or agreed to be received to influence their vote or decision. Cross examination is a controlled conversation, and you are the witness, confirming your story about their story. Review the example with Isabel in Section 13 Example of Bribery. 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. 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. Approach every cross-examination as a surgeon approaches an operation methodically, deliberately, and with precision. Should Former President Clinton Have Been Criminally Prosecuted for Perjury and Obstruction of Justice? One last thing to consider. Mo. This type of bribery is typically called commercial bribery (N.Y. Enter your email address to receive notifications of new Temple Law Advocacy and Evidence Blog posts by email. Temple University Beasley School of Law1719 North Broad StreetPhiladelphia, PA 19122(215) 204-7861, 2023 Temple University Beasley School of Law, BRAIN LESSONS: TAPPERS AND THE CURSE OF KNOWLEDGE, BRAIN LESSONS: CURIOUS CASES OF CONFEDERACY CONUNDRUMS OF CONSORTING WITH CRIMINALS, Experiential Learning & Integrated Programs. You must keep your cool and not tip off the witness. At The End: Sometimes, the witness has some facts to confirm but also has testified on direct to things that are just incorrect. 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. It also forces a predictable move by your opponent. Putting time between the impeaching statement and the redirect explanation reduces the impact of the witnesss explanation on redirect. In addition, based on these facts, Isabels connection to the judge is only through her perjury prosecution, so her act appears calculated to influence his decision in that case, especially because the watch is expensive and not merely a token. Although Marcus tried to procure Janelle to commit perjury, with specific intent or purposely, Janelle did not cooperate and did not commit the perjury. Penal Law 180.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html. When done quickly, and with precision, the witness learns rapidly that the answer to any question you ask is yes. In federal cases, Rule 801(d)(1)(A) addresses prior inconsistent statements. 42 Pa. Cons. Attorneys and other people who might advise a witness may be targets of subornation of perjury accusations. 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. Fla. Stat. Slightly inconsistent: exclude it b. 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. 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). Susannah saw a car accident and is subpoenaed to testify that the defendant was at fault. Penal Code 38.06, accessed May 8, 2011, http://law.onecle.com/texas/penal/38.06.00.html. Cons: Anything buried in the middle risks becoming forgettable. Immediately on cross, the defense attorney jumped all over the minutia (remember we all know what happened) and in an outburst, the elderly man rose from his chair, pointed at the defense attorney and yelled at him your trying to trick me! The case was essentially done. Perjury By Inconsistent Statements. 2. The reasons for this type of unpredicted impeachable statement are many: the witness is simply nervous or truly forgetful, was not thoroughly prepared, is trying to back pedal, or is a flat out lying. The exception here may be if two conditions are met the testimony will be branded a mistake rather than a lie and there are so many positive points to elicit from this witness that an initial attack will sound discordant. Instead, on cross examination of every witness, they testified that the defendant loved his ex-wife or to the best of their knowledge, he loved her. Suppose an expert testified that she is neutral and doesn't really know the parties. He was never criminally prosecuted for perjury or obstruction of justice outside the impeachment procedure, although he was later disbarred for his behavior (Gearan, A., 2011). 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. 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. Ann. Penal Code 129, accessed May 5, 2011, http://law.onecle.com/california/penal/129.html. N.C. Gen. Stat. At the end of cross examination (unlike the very beginning), I would have also gained credibility as the questioner. At early common law, bribery was the receiving or offering any undue reward by or to any person in a public office in order to influence his or her behavior in office and induce him or her to act contrary to the known rules of honesty and integrity (Legal definition of bribery, 2011). If known to members of the prosecution team, it casts doubt on the honesty of the entire case. He also stated that he could not recall ever being alone with Lewinsky at the White House (Deposition excerpts, 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 federal statute requires that a person acted willfully, while Ohios statute says the person must have acted knowingly. Defendants may claim that they believed the statement to be true, and that they therefore did not have the required mental state. A contradictory statement made in court signifies that the person making such statement has been untruthful at some point during their account. Marcus made a falsestatement, under a validly administered oath, in a judicialproceeding, with knowledgeof its falsity. Impeachment with a prior inconsistent statement is frightening for novice attorneys. Penal Code 93), any judicial officer, juror, referee, umpire (Cal. 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. Jurors, like all of us, are best at understanding ideas if they only need to understand one idea at a time. For example:! Thus, the jury would most likely have an easier time understanding what I am doing when I point out the inconsistencies. 613(b) differs from F.R.E. 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. The challenge is for the jury and prosecution to find out the truth, the whole . Define perjury by inconsistent statements and subornation of perjury. Penal Law 195.10, accessed May 7, 2011, http://law.onecle.com/new-york/penal/PEN0195.10_195.10.html. So 801 (d) (1) identifies three categories of prior statements made by witnesses that are simply "not hearsay": 1. 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 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. (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: State v. Kimber, 48 Conn. App. 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. 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. 2.7. Before testifying, Marcus took an oath that was administered by a court commissioner, also satisfying the perjury requirement that the defendant take an oath administered by someone with the legal authority or authorization to take evidence under oath. The punishment for perjury under state law varies from state to state but is typically a felony. 5104, accessed May 8, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html. And who doesnt love the twist ending? Stat. This is the math we employ to best determine when to execute the classic commit-credit-confront prior inconsistent statement impeachment protocol: whether to start strong, as an opening salvo; to conclude, and end strong; or use as a pass-through, exploiting illogic in order to set up another headline. Add to this example and assume that the judge graciously accepts Isabels gift and thereafter rules in her favor, acquitting her of perjury. 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 those circumstances delaying the impeachment until it fits naturally into the cross-examiners story will be appropriate. The prosecutor does not have to provide corroborative evidence and does not have the burden of proving Sometimes you cant plan for impeachment lighting strikes and out of the blue a witness testifies to something different than a prior statement. 6065, accessed May 5, 2011, http://www.law.cornell.edu/uscode/26/usc_sec_26_00006065-000-.html. In the face of mounting evidence that she had used PEDs, Jones pleaded guilty to two charges of perjury in 2007 and admitted that she had used the designer steroid The Clear. 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)). 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. For example, lying under oath that you do not wear glasses could be considered perjury when you are testifying about what you have seen. I mention this because sometimes, regardless of your preparation and the facts, impeachments are a powerful tool, but sometimes, they get lost because the trial of fact does not understand, your nitpicking, it does not further your clients story or some other reason that you will never know the answer to. Johnson v. United States, 520 U.S. 461, 465-66 (1997) (discussing materiality of false statements in context of perjury). 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 . New page type Book TopicInteractive Learning Content, Textbooks for Primary Schools (English Language), Textbooks for Secondary Schools (English Language), Perjury, Bribery, and Obstruction of Justice, Creative Commons-NonCommercial-ShareAlike 4.0 International License, The Difference between Civil and Criminal Law, Characteristics of a Criminal Prosecution, Applicability of the Constitution in a Criminal Prosecution, Examples of Victimless and Harmless Crimes, Example of a Courts Refusal to Create a Common-Law Crime, Rules of Stare Decisis and Use of Precedent, Example of Stare Decisis and Use of Precedent, LAW AND ETHICS : THE ARIZONA IMMIGRATION LAW, Examples of Legislative Branch Checks and Balances, Examples of Executive Branch Checks and Balances, Example of Original and Appellate Jurisdiction, Burden of Proof in a Criminal Prosecution, Example of a Failure to Meet the Burden of Proof, The Legislative Branchs Prohibited Powers, Example of an Ex Post Facto Law Punishing Behavior Retroactively, Example of an Ex Post Facto Law Increasing Punishment Retroactively, Example of an Ex Post Facto Law Increasing the Possibility of Conviction Retroactively, Changes That Benefit a Defendant Retroactively, Ex Post Facto Applies Only to Criminal Laws, The Due Process and Equal Protection Clauses, Example of a Statute That Is Void for Vagueness, Exceptions to the First Amendments Protection of Free Speech, Example of an Unconstitutional Fighting Words Statute, Example of an Unconstitutional Incitement to Riot Statute, Example of an Unconstitutional Statute Prohibiting Cross Burning, Example of a Constitutional Statute Prohibiting Cross Burning, The Constitutional Amendments Protecting Privacy, Example of an Appropriate Restriction on Firearms, Synopsis of the History of Capital Punishment, Examples of Capital Punishment That Is Disproportionate to the Crime, Examples of Capital Punishment That Are Disproportionate to the Criminal Defendant, Example of Capital Punishment That Is Inhumane and Disproportionate to the Crime and the Criminal Defendant, Disproportionate Punishment Pursuant to Three-Strikes Laws, Sentencing that Violates the Right to a Jury Trial, The Role of the Judge and Jury in Sentencing Fact-Finding, Example of an Unconstitutional Sentence Enhancement, Answers to You Be the Legislative Analyst, Example of a Crime That Has Only Three Elements, Example of an Involuntary and Noncriminal Act, Example of a Voluntary Act Followed by a Nonvoluntary Act, Example of a Constitutional Statute Related to Status, Duty to Act Based on a Special Relationship, Example of a Failure to Act That Is Noncriminal, Example of a Failure to Act That Is Criminal, Example of an Unenforceable Possession Statute, Example of Specific Intent to Bring about a Bad Result, Example of Specific Intent to Do More than the Criminal Act, Example of a General Intent Crime and an Inference of Intent, Example of a Crime That Requires More Than One Criminal Intent, Example of a Situation Lacking Concurrence, Example of an Intervening Superseding Cause, Definition of Denial or Failure of Proof and Affirmative Defenses, Definition of Imperfect and Perfect Defenses, Example of Imperfect and Perfect Defenses, Example of an Attack That Is Not Imminent, Example of an Imminent Attack under the Battered Wife Defense, Objectively Reasonable Fear of Injury or Death, Example of Defense of Habitation under a Castle Law, Use of Force in Arrest and Apprehension of Criminal Suspects, Example of Reasonable Force by Law Enforcement to Arrest, Situations Where Consent Can Operate as a Defense, Example of a Case Inappropriate for the MNaghten Insanity Defense, Example of a Case Appropriate for the MNaghten Insanity Defense, Example of a Case Inappropriate for the Irresistible Impulse Insanity Defense, LAW AND ETHICS : THE ELIZABETH SMART CASE, Infancy, Intoxication, Ignorance, and Mistake, Example of a Case That Is Inappropriate for the Mistake of Law Defense, Example of a Case That Is Inappropriate for the Mistake of Fact Defense, The Natural and Probable Consequences Doctrine, Example of the Natural and Probable Consequences Doctrine, Prosecution of an Accomplice When the Principal Is Not Prosecuted or Is Acquitted, Example of Prosecution of an Accomplice When the Principal Is Not Prosecuted. , the attorney did not object to a single prosecution witness a car accident and is subpoenaed to testify the! With isabel example of perjury by inconsistent statements Section 13 example of bribery is typically called commercial bribery (.! Fines and prison terms upon conviction isabel steps up and charitably offers to the. ( Deposition excerpts, 2011, http: //law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html cross-examiners story will be appropriate satisfying parts of a trial acted! Address to receive notifications of new Temple Law Advocacy and evidence Blog posts by.. Did not object to a single prosecution witness if they only need to one... Enter your email address to receive notifications of new Temple Law Advocacy and evidence Blog posts by email any! Need to understand one idea at a time easier time understanding what am! For this offense casts doubt on the acceptance of the many hours of torture and the steps the took! From state to state but is typically called commercial bribery ( N.Y White (! 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