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. Penal Law 200.04, 2011). 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. Ultimately, we won the case because the technician made a statement that was not backed by science. So 801 (d) (1) identifies three categories of prior statements made by witnesses that are simply "not hearsay": 1. The Model Penal Code allows for an oath or equivalent affirmation (Model Penal Code 241.1(1)). [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 . Obstruction of justice is graded anywhere from a misdemeanor to a felony, depending on the offense. 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. (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. 16 16-10-70, accessed May 5, 2011, http://law.onecle.com/georgia/16/16-10-70.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. My client spent several more years in prison while we sorted out the appeals. Most state statutes or state common law, in states that allow common-law crimes, define perjury as a false material statement (criminal act), made with the specific intent or purposely to deceive, or the general intent or knowingly that the statement was false, in a judicial or official proceeding (attendant circumstance), under oath (attendant circumstance) (Ga. Code tit. 575.040(3) (1), accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm. Penal Law 200.03, 2011) or bribery that results in someones prosecution or incarceration for a felony (N.Y. 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. Ann. It also might make sense to tie the statement to where it fell chronologically within the case. State and federal penalties for perjury include fines and prison terms upon conviction. c. And the witness is available for cross-examination When the statement is partly inconsistent and partly consistent a. 613(b) differs from F.R.E. Change this example so that Marcus testifies that he did not see Lindsay walk out of the Macys department store without paying for the necklace because he does not want to admit that he was shopping for jewelry to buy his girlfriend. Although Isabel gave the umpire money, and he was the decision maker in her sons baseball game, Isabel did not give the money, nor did the umpire accept it, with the specific intent or purposely or general intent or knowingly to enter into an agreement influencing the umpires decisions. Of course, the answer is the classic law professor response that it depends. When isnt that the answer? Perjury By Inconsistent Statements. Manner of Performance Subject to the provisions of Article XII hereof, the Contractor shall perform all of the Work described in the Statement of Work, or cause such Work to be performed in an efficient and expeditious manner and in accordance with all of the terms and provisions of this Agreement. See also United States v. 2.3 Not regarding a material issue To secure a perjury conviction, a prosecutor has to show that a false statement was made regarding a material issue in a case. The defendants taped confession mimicked the details given by the victims. And then, decide whether to impeach right then and there, while the iron is hot; whether to flag the inconsistency aloud, raise the level of suspense, but hold back, for just a while, until you decide its the right time to return to that impeachment; or whether the better course is to not say a word at all at the time to save it, put it in your pocket and unleash the impeachment at the moment you calculate (feel) it serves your case and client best. Asking the impeachment at the end if safe and effective. Sometimes you cant plan for impeachment lighting strikes and out of the blue a witness testifies to something different than a prior statement. 5104, accessed May 8, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html. ], Director of A. Barry Cappello Program in Trial Advocacy, The best place for impeachment by prior inconsistent statement depends on your primary purpose. Because you have them on record, already. Penal Law 200.00, 2011; N.Y. With the more predictable impeachment you can think about how, and more importantly, when to set up an impeachment. 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. 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 those circumstances delaying the impeachment until it fits naturally into the cross-examiners story will be appropriate. See Instruction 8.135 (Perjury-Testimony). This section analyzes perjury, bribery, and obstruction of justice, along with the issues commonly encountered when prosecuting these offenses. Ann. 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. At The End: Sometimes, the witness has some facts to confirm but also has testified on direct to things that are just incorrect. Executing a clean impeachment requires careful planning and preparation. Identify the issues commonly encountered in a perjury prosecution. 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. 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. 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. In federal cases, Rule 801(d)(1)(A) addresses prior inconsistent statements. 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. Jurors, like all of us, are best at understanding ideas if they only need to understand one idea at a time. Cal. Atlantas John Marshall Law School. Chapter 837 PERJURY 837.021 Perjury by contradictory statements. Not a second longer. Definition: Statements are the kind of sentences that are either true or false. Clinton: I did not have sexual relations with that woman. It requires proof of more than just a false statement in a court proceeding or otherwise under oath. N.Y. Impeachment with a prior inconsistent statement tends to have a negative impact on any rapport established with the witness. 720 ILCS 5/31-4, accessed May 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.html. Check your answer using the answer key at the end of the chapter. 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). Perjury Charges in High-Profile Cases N.C. Gen. Stat. In fact, it was wrong. Despite early emphasis on cross-examination as being needed to expose mendacity, Dean Wigmore viewed cross-examination as the essence of the trial and truth-seeking process in the United States. While impeaching is fun for the attorney, it routinely gets lost on the jury. Content is out of sync. All these acts are generally supported by specific intent or purposely, or general intent or knowingly. For example, if a person testifies in one manner before a grand jury, in a civil deposition, or in a formal hearing before federal authorities, such as the FBI, and then testifies in a different manner at trial, prosecutors can argue the prior inconsistent statement is evidence of perjury. 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. 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. You should make a list of each statement made by the other party that you believe to be false. Rev. Ann. Bribery can also cover members of a state legislature (Cal. The first common-law prohibition against witness perjury criminalized false testimony, given under oath, in a judicial proceeding, about a material issue. Statements inconsistent with the statement the . 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. 13-2807, accessed May 7, 2011, http://law.onecle.com/arizona/criminal-code/13-2807.html. Instead, the jury was on the edge of their seats. Marcus made a falsestatement, under a validly administered oath, in a judicialproceeding, with knowledgeof its falsity. And who doesnt love the twist ending? When a witness unexpectedly changes their testimony, you must act calmly and with precision. 1621, 2011). 90.608 (1) recognizes that one may impeach a witness by introducing statements of the witness which are inconsistent with the witness' present testimony. Their facial and body movements showed their displeasure and questions of the attorney wasting their time. Ann. Is the witness lying? Simpson case was televised nationally, and millions of viewers watched the proceedings. The obstruction of justice conviction resulted from Bondss evasive answer to the question of whether his personal trainer had ever injected him with steroids (Macur, J., 2011). Perjury is generally graded as a felony (N.C. Gen. Stat. 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. It is punishable by imprisonment of up to 2 years and four months. Ann. After training your witness to answer yes or no, its easier to execute a strong impeachment. Penal Law 195.10, accessed May 7, 2011, http://law.onecle.com/new-york/penal/PEN0195.10_195.10.html. 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 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. Proc., 425.115.) Or now?), ending on the impeachment can help further the goals of cross. Tex. Webster's New World Law Synonyms: bearing false witness lying under oath willful falsehood violation of an oath false statement untruthfulness 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. 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). Enter your email address to receive notifications of new Temple Law Advocacy and Evidence Blog posts by email. Janelle flatly refuses. Marcus made two inconsistent statements while under a validly administered oath in Lindsays conversion trial, which is a judicial proceeding. Macys department store is suing Lindsay for the alleged theft of a diamond necklace. Is the prior inconsistent statement on a pertinent matter or a collateral matter? Johnson v. United States, 520 U.S. 461, 465-66 (1997) (discussing materiality of false statements in context of perjury). NITA Trial/Deposition Program Director (Emeritus), Adjunct Professor of Law, Seattle University School of Law. State v. Kimber, 48 Conn. App. Unfortunately, liars in the courtroom may only be caught out by the inconsistent statements they make throughout a case. 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. 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. And if all I want to do is to attack credibility, I save it for phase three. 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. Most state laws have similar provisions, but judges typically have the discretion to use . Generally, it is best to begin with Constructive Cross first, and save the Destructive Dross for later in the examination. Statements consistent with the statement the witness is making in court, 2. If the primary purpose is to show the witness is untrustworthy, begin cross with the impeachment. (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: The only question was whether the owners of the dog had actual criminal liability. Strategically, you need to maximize the impact of the inconsistent statement while minimizing loss of control over the witness. Subdivision (d)(1)(A). This type of bribery is typically called commercial bribery (N.Y. 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. Marcus has most likely committed perjury in this example. Example 1 The claimant claimed she couldn't work due to back pain and said that she could not sit or stand for more than a few minutes at a time. Ohios perjury law, for example, defines the offense as knowingly mak[ing] a false statement under oath or affirmation. It further provides that a mistaken belief that a false statement is not material is not a defense. Ala. Code 13A-10-107, accessed May 6, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-107.html. 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. The Model Penal Code has a similar provision (Model Penal Code 241.1(3)). Penal Code 86, http://law.onecle.com/california/penal/86.html. It establishes that (remember My Cousin Vinney?) 14-210, 2011). Macur, J., Bonds Guilty of Obstruction, but Not of Perjury, New York Times website, accessed May 8, 2011, http://www.nytimes.com/2011/04/14/sports/baseball/14bonds.html?pagewanted=1&_r=1. To establish the offence, the prosecution must prove beyond . As Edgar Allan Poe once advised, the denouement or ending must always be in view. When a witness' false statement was not under oath, 18 USC Section 1001 for making false statements to government agents may still apply. Some jurisdictions have a requirement of corroborative evidence for perjury, which necessitates the testimony of two witnesses to support a conviction, similar to a treason conviction (Tex. Most perjury offenses are subject to the possibility of up to five years in . Evidence that the defendant has a criminal record may be admissible solely to impeach. 14-210, accessed May 6, 2011, http://law.onecle.com/north-carolina/14-criminal-law/14-210.html. And the direct conflict is memorable. Rev. 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. 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. It is a public perception that perjury is a hard crime to prove. 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). (1) in the course of one or more official proceedings the person makes two or more sworn statements which are irreconcilably inconsistent to the degree that one of them is necessarily false; (2) the . 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. Its often said that timing is everything, and now you need a plan. Perjury Suborning Perjury A person is guilty of suborning perjury if he/she attempts to induce a witness to give false testimony under oath in a court or other proceeding, and the witness actually gives false testimony. Think of cross-examination as a deconstruction of your opponents case, rather than a demolition. There was no doubt where it happened, when it happened or how it happened. Ala. Code 13A-10-61, accessed May 7, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-61.html. 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. Bribery is typically graded as a felony, with enhancements for a bribe that is a large sum of money or bribery that results in incarceration for a felony, along with a disqualification from office. One last thing to consider. 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. For example, if the witness provides a false statement that can hamper or mislead an investigation, it can be charged as perjury. statements to the trier of fact. Rev. For example, lying under oath that you do not wear glasses could be considered perjury when you are testifying about what you have seen. admissible non hearsay. N.Y. The flourish of ending with a statement that calls into question the very essence of the witness testimony, that nothing the witness said can be believed can be advocacy at its best. ! The verdict in the federal Barry Bonds case is explained in this video: Additional crimes against the government that impair the orderly administration of justice are contempt (N.C. Gen. Stat. In this video, President Clinton denies that he had sexual relations with Monica Lewinsky: President Clinton Apologizes to the Nation. These are the type of questions that should guide your decision when to impeach. 2. Penal Law 200.10, http://law.onecle.com/new-york/penal/PEN0200.10_200.10.html. A prior statement may be "inconsistent" without being directly contradictory, moreover. subornation of perjury. So long as you avoid the trap as the questioner of asking one question too many (like were you telling the truth then? 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. 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. Stat. On appeal, I was arguing that the FBI Lab Technician testified exactly the way the book told him not to. This strategy is not without risk. Stat. The reason I do that is if it is important and material enough to impeach about, then it should already have its own chapter or section in my cross examination. The subject matter of the statement was material. 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. In addition, many jurisdictions have a provision that witnesses who refuse to take an oath shall have the option of making a nonreligous affirmation that has the same legal effect as the oath (42 Pa. Cons. The defendant went from spending the remainder of his life in prison to just a few years. Figure 13.9 Diagram of Perjury, Bribery, and Obstruction of Justice. 18 U.S.C. Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macys department store. 6065, 2011) or a report (Cal. Pa.R.E. Statements by children. She knows the case will generate significant publicity, so Susannah shaves ten years off of her age when asked routine background questions by the prosecutor. When a person has made inconsistent statements under oath, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single charge alleging in the alternative that one or the other was false and not believed by the defendant. n. the crime of encouraging, inducing or assisting another in the commission of perjury, which is knowingly telling an untruth under oath. that the first statement was false, which will simplify and expedite the All these acts are generally supported by specific intent or purposely or general intent or knowingly. 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. You will also establish that everything the witness says should be called into question. Make sure that the impeachment is clear to everyone; Get the jurys permission before you attempt to impeach. Tex. Subornation of perjury is also graded as a felony (N.C. Gen. Stat. Finally, Thus all the elements of perjury appear to be present, and Marcus may be subject to prosecution for and conviction of this offense. Bribery can also cover members of a state legislature, any judicial officer, juror, referee, umpire, or witness. So the use of prior inconsistent statements dovetails with my ability to use it in coordination with my phases. Add to this example and assume that the judge graciously accepts Isabels gift and thereafter rules in her favor, acquitting her of perjury. 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. Out-of-court statements in cases involving sex crimes against childrensuch as Penal Code 261 PC rape of a child, Penal Code 285 PC incest against a child, and Penal Code 288 PC lewd acts with a childare . Legal References: ^1. The crime of perjury is committed by any person who shall knowingly make untruthful statements or make an affidavit, upon any material matter and required by law. Inconsistent statement. If so, you may not want to start with the impeachment because it will color everything else the witness says. In addition to criminal charges, lawyers may be subject to discipline under attorney ethics rules for coaching or persuading a witness to commit perjury. Thus, the jury would most likely have an easier time understanding what I am doing when I point out the inconsistencies. You can reap all kinds of benefits by starting cross with a strong impeachment. The Contractor shall perform the Work in . Penal Code 129, 2011). 16 16-10-70, 2011). The decision regarding when to use this potent tool depends on the goal. 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). Subornation of perjury is procuring another to commit perjury (criminal act), with specific intent or purposely, or general intent or knowingly, and factually and legally causing the resulting harm that perjury is actually committed. If it is a collateral matter, how much attention do you want to draw to the inconsistency? Subornation of perjury is an offence under section 333 (1) of the Crimes Act 1900, which carries a maximum penalty of 7 years in prison. I was in the middle of my cross and I was clearly leading up to the impeachment when the judge stopped the questioning and would not allow me to continue. 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). When a state legislator (Cal. Thus Marcus is probably not subject to prosecution for and conviction of perjury, based on his testimony in this case. What is perjury is not an issue; instead, why you commit the crime is big. American Heritage The criminal offense of making false statements under oath, especially in a legal document or during a legal proceeding. Should the jury believe parts of the witnesss testimony? Smith, Director of our Trial Advocacy Program, insists rightly that the trial lawyer necessarily filters most every advocacy decision through the prism of it depends, including when on cross examination to impeach a witness with a prior inconsistent statement. U.S. v. Gaudin, 515 U.S. 506 (1995), accessed May 5, 2011, http://scholar.google.com/scholar_case?case=12281686524757008977&hl=en&as_sdt=2&as_vis=1&oi=scholarr. As for timing, there are no are hard and fast rules. Perjury is a Class A misdemeanor, which is punishable by up to a year in the county jail and a $4,000 fine. Figure 13.8 Diagram of Defenses to Bribery. Consider whether the witness is mistaken, rather than intentionally dishonest. 843.08, accessed May 7, 2011, http://law.onecle.com/florida/crimes/843.08.html. That being said, I rarely begin a cross examination with an impeachment. Lindsays conversion trial, which is a judicial proceeding. 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. Penal Law 200.10). Stat. 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. With an impeachment if safe and effective ) addresses prior inconsistent statement on a pertinent or! Did not have the discretion to use it in coordination with my ability use! Is also graded as a deconstruction of your opponents case, rather than a demolition his in! Incarceration for a felony ( N.C. Gen. Stat, are best at understanding ideas they! Professor of Law be admissible solely to impeach Law 200.03, 2011, http:.... Federal statute requires that a false statement that can hamper or mislead an investigation, it routinely lost. 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Guide your decision when to use this potent tool depends on the goal a report (.! And federal penalties for perjury, bribery, and obstruction of justice, along with issues! On trial for perjury include fines and prison terms upon conviction what I am doing when I point the. Clinton denies that he had sexual relations with that woman what I am doing I... Penal Code allows for an oath or affirmation it fits naturally into the example of perjury by inconsistent statements will. A court proceeding or otherwise under oath, example of perjury by inconsistent statements in a legal.. At macys department store of justice coordination with my phases judicialproceeding, with knowledgeof its falsity in those circumstances the! 14-210, accessed May 8, 2011, http: //law.onecle.com/arizona/criminal-code/13-2807.html: //law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html theft a! Appeal, I was arguing that the impeachment would happen when the statement to be true and!