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. Tex. An act of committing such a crime. The statement was given to intentionally mislead the court and the witness was aware of the effect of the statement ie the witness knew the statement was untrue. During the Course of Cross: And of course, there is the situation where the witness has just gone off script during the course of confirming things that should be undisputed. Cal. questions about prior statement). Historyplace.com website, Presidential Impeachment Proceedings, accessed May 9, 2011, http://www.historyplace.com/unitedstates/impeachments/clinton.htm. Usually, this happens a few minutes into the cross. Perhaps a witness used harsh language or made an admission to a police officer. Penal Law 200.04, 2011). 162.275, 2011) when a bribe is conferred or offered, asked for, received, or agreed to be received to influence their vote or decision. Associated Press: Bonds Guilty of Obstruction, Jury Hung on Others. 14-210, accessed May 6, 2011, http://law.onecle.com/north-carolina/14-criminal-law/14-210.html. He thereafter testifies that he saw Lindsay try on the necklace and then walk out of the store without paying for it. Logical and Critical Thinking. 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. The cons: When youve ended with an impeachment, the redirect examiner will most likely follow-up with an explanation or clarification of the previous testimony, which may minimize the impact. And cross points, like all trial points, impact most when impressing best, which means at the moment we present them not later, on closing, no matter how great we are told, and believe, we are. Penalties for Perjury. Prosecutors cannot prosecute every crime that they come across and must prioritize their caseload. Mo. 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 200.03, 2011) or bribery that results in someones prosecution or incarceration for a felony (N.Y. 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. You must reload the page to continue. If there is no such chapter in my cross examination, then I would end the cross with the impeachment. See also United States v. 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). (1) Except as provided in subsection (2), whoever, in one or more official proceedings, willfully makes two or more material statements under oath which contradict each other, commits a felony of the third degree, punishable as provided . The Model Penal Code defines materiality as a statement that could have affected the course or outcome of the proceeding and declares that materiality should be a question of law, which means it should be determined by a judge, not a jury (Model Penal Code 241.1(2)). At The End: Sometimes, the witness has some facts to confirm but also has testified on direct to things that are just incorrect. When you do that, you increase the likelihood of success with the jury, whatever your point may be in closing. 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. Define the elements of various forms of obstruction of justice, and analyze obstruction of justice grading. For example, even though a literal application of the Rule would suggest that any prior inconsistent statement is admissible as substantive evidence so long as it is one of the three enumerated types under oath, tape recorded, or signed that may not necessarily be so. Is the prior inconsistent statement on a pertinent matter or a collateral matter? Figure 13.9 Diagram of Perjury, Bribery, and Obstruction of Justice. 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. 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. No matter which strategy you decide on, you must practice the steps to be efficient and clear. Although Marcus tried to procure Janelle to commit perjury, with specific intent or purposely, Janelle did not cooperate and did not commit the perjury. Change this example and assume that the judge in question is an imposter who is merely masquerading as a judge to live out a lifelong fantasy. When this occurs, the prosecutor can attempt to prove that the two statements are inconsistent, and both cannot be true. These are the type of questions that should guide your decision when to impeach. N.Y. In fact, it was wrong. 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). 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). Bribery is typically graded as a felony (N.Y. 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). 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. Not a second longer. However, because of the procedural difficulties in successfully convicting a defendant of perjury and subornation of perjury, these crimes are not often prosecuted. Accordingly, it is necessary to include materiality as an element of the offense in this instruction. Assistant Director, Trial Advocacy Program. 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)). 14-209, accessed May 6, 2011, http://law.onecle.com/north-carolina/14-criminal-law/14-209.html. In a sense, a person must make a false statement with an intent to defraud. 575.040, 2011). Stat. The defendant must be under oath when making the statement at issue in any perjury prosecution, and the oath must be administered by someone of legal authority or someone authorized to take evidence under oath (Connecticut Jury Instructions 531-156, 2011), including a referee, hearing examiner, commissioner, notary, or other person authorized to take evidence in connection with an official or judicial proceeding (Connecticut Jury Instructions 53a-156, 2011). N.C. Gen. Stat. One last thing to consider. Hearsay is: (1) a statement that the declarant does not make while testifying at the current trial or hearing and. Stat. 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). The primary issue in a bribery prosecution is proving the defendants criminal intent to enter into an agreement that influences the bribed individuals decision making. 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. 162.265, 2011; Or. 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. Some typical examples of obstruction of justice are as follows: giving false identification to a law enforcement officer, impersonating a law enforcement officer, refusing to aid a law enforcement officer when requested, giving false evidence, hiding or concealing oneself and refusing to give evidence, tampering with evidence, and tampering with a witness or juror. Ann. Lying under oath is punishable under the Revised Penal Code of the Philippines as the crime of Perjury. This was confusing to me and it had to be to the jury as well. A statement is "inconsistent" "if under any rational theory it might lead to any relevant conclusion different from any other relevant conclusion resulting from anything the witness said." Weinstein's Federal Evidence 613.04 [1]. N.C. Gen. Stat. For example, lying under oath that you do not wear glasses could be considered perjury when you are testifying about what you have seen. And the direct conflict is memorable. 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. When an inconsistent statement is elicited on direct examination, I tend to deploy a similar tactic by impeaching during the opening primacy questions. While you cant plan for this unexpected impeachment, you can be ready. Statements consistent with the statement the witness is making in court, 2. 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 first common-law prohibition against witness perjury criminalized false testimony, given under oath, in a judicial proceeding, about a material issue. Marcus has most likely committed perjury in this example. The disclosure requirement in paragraph (a) is intended to deter sham allegations of the existence of an inconsistent statement. What concessions do you need from this witness and what exactly will you argue about this impeachment? ], Director of A. Barry Cappello Program in Trial Advocacy, The best place for impeachment by prior inconsistent statement depends on your primary purpose. In many jurisdictions, the trier of fact, which could be a judge or jury, determines whether or not the statement is material. 5104, accessed May 8, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html. Big mistake. Perhaps, for example, a person made a false statement to law enforcement while not subject to an oath or penalty. When a state legislator (Cal. Bribery can also cover members of a state legislature, any judicial officer, juror, referee, umpire, or witness. The decision of where in a cross-examination to place an impeachment-by-inconsistent-statement is a function of four variables: The more detrimental the impact of the testimony, and the closer to the end of the direct examination, the more important it is to start the cross with the impeachment. Associate Director of the Center for Advocacy and Dispute Resolution The placement of your confrontation with an inconsistent statement really depends on what you are trying to accomplish, and the behavior of the witness. Marcus is a witness in a civil suit for damages against Lindsay. Penal Code 88, accessed May 7, 2011, http://law.onecle.com/california/penal/88.html. Fla. R. Evid. 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. Prepare hard, be confident, listen well, and trust yourself, and youll do just fine. Stat. 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. Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macys department store. Penal Law 200.10). It is a public perception that perjury is a hard crime to prove. While the defense attorney was attempting to impeach the witness, I realized that he was nitpicking certain facts that were not in dispute. N.C. Gen. Stat. Assume for a moment that at trial, on direct examination, the Plaintiff testifies that when he went through the light it was green; however, when the Plaintiff testified during his deposition he testified that he couldnt remember what color the light was. If Marcuss jurisdiction criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. Cal. False Statements Are Perjury. However, it would not be perjury if your witness statement was about what you have heard and not seen. 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). Perjury generally requires a false statement that is material, which means that it substantially affected or could substantially affect the outcome of the proceeding (Mo. Its often said that timing is everything, and now you need a plan. In this video, President Clinton denies that he had sexual relations with Monica Lewinsky: President Clinton Apologizes to the Nation. 2. 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. It provides that a statement is not hearsay (i.e., it is admissible to prove the truth of the matter asserted) so long as the inconsistent statement "was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition" Because the . Review the statutes in the endnotes for common elements and grading of these offenses. (1) Prior Inconsistent Statement of Declarant-Witness. The only question was whether the owners of the dog had actual criminal liability. Because this is a very important issue of the criminal case, Bob has committed perjury, whether his lie is in favor or against the defendant. Penal Code 74, accessed May 7, 2011, http://law.onecle.com/california/penal/74.html. My short answer is that there is no hard and fast rule. It is easy to prove that a declarant took an oath. United Arab Emirates: Contradictory Statements. There is no reason to undermine the witnesses credibility when they are about to agree with you. As trial lawyers, we constantly assess the temperature of the room. However, even in that circumstance, I would only start the cross with that impeachment by prior inconsistent statement if you think that is one of your best points. They stopped listening. 6065, accessed May 5, 2011, http://www.law.cornell.edu/uscode/26/usc_sec_26_00006065-000-.html. Cal. Ala. Code 13A-10-108, accessed May 5, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-108.html. 18 U.S.C. If Marcuss jurisdiction Rev. This section analyzes perjury, bribery, and obstruction of justice, along with the issues commonly encountered when prosecuting these offenses. The two are very similar, but false declarations tend to be easier to prove. 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. So its useful to determine which idea you want to highlight: that the witness is untrustworthy, or that a particular fact is true. Review the example in Section 13 Example of a Case Lacking an Element of Perjury with Marcus. Penal Law 200.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.00_200.00.html. Penal Law 180.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html. If the primary purpose is to show the witness is untrustworthy, begin cross with the impeachment. Unfortunately, liars in the courtroom may only be caught out by the inconsistent statements they make throughout a case. Not only that, perjury in Texas is a crime of moral turpitude, which means the public generally considers it morally wrong. Be sure to follow your impeachment steps to elicit a clear inconsistent statement, not a mush of an answer with cloudy qualifications. The perjury charges stemmed from Bondss claim while testifying under oath that he never knowingly used steroids, never knowingly used human growth hormones, and was never injected with a substance by anyone other than his trainer. 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. Gearan, A., Clinton Disbarred by Supreme Court, Famguardian.org website, accessed May 9, 2011, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm. Instead, the jury was on the edge of their seats. Perjury is generally graded as a felony (N.C. Gen. Stat. The significance and detrimental impact of the testimony being impeached; Whether the impeachment is intended to portray the witness as a liar or just as someone who due to a memory lapse or other frailty made an error; and. Nonetheless, the threat of a felony conviction still serves as a deterrent and helps to ensure that witnesses testify truthfully in judicial and official proceedings and give accurate statements in certified writings. Proc., 425.115.) Impeaching up front works well for a very clear impeaching statement, particularly one that has not been fronted during the direct. When a witness' false statement was not under oath, 18 USC Section 1001 for making false statements to government agents may still apply. A person convicted of perjury under federal law may face up to five years in prison and fines. Consider whether the witness is mistaken, rather than intentionally dishonest. Evidence that the defendant has a criminal record may be admissible solely to impeach. Aggravated perjury is a third-degree felony, which is punishable by 2 to 10 years in prison and a $10,000 fine. If Susannah is thereafter caught in this lie and prosecuted for. 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. The decision regarding when to use this potent tool depends on the goal. 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. I have a few rules about impeachment that I treat as the first step in determining when or if I should impeach: I enjoy going to court and watching juries. 234 (1998), accessed May 5, 2011, http://scholar.google.com/scholar_case?case=17399056576949304157&q= State+v.+Kimber+48&hl=en&as_sdt=2,5. A hearsay statement that a witness disliked the defendant may be admitted to show the witness's bias. Stat. Jrank.org website, PerjuryPerjury at Common Law, accessed May 5, 2011, http://law.jrank.org/pages/1632/Perjury-Perjury-at-common-law.html. The factfinder will remember the end of the testimony. Statements inconsistent with the statement the . In order to make the decision, keep in mind an important guideline for effective storytelling. 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