If the witness is lying, what is the motivation to lie? That being said, I rarely begin a cross examination with an impeachment. Not a second longer. 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. The Model Penal Code has a similar provision (Model Penal Code 241.1(2)). As for timing, there are no are hard and fast rules. The attention span of individuals is very short. On cross, like Coach Valvano, our mission at base is to survive and advance. The Model Penal Code has a similar provision (Model Penal Code 241.1(5)). 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. Generally, it is best to begin with Constructive Cross first, and save the Destructive Dross for later in the examination. False Statements Are Perjury. Everything that guy just said is B. 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. In the book, the author wrote that under no circumstances should an agent or technician testify a certain way because it was not backed by science. Penal Code 92, accessed May 6, 2011, http://law.onecle.com/california/penal/92.html. Fla. R. Evid. place it chronologically in the flow of the cross? Atlantas John Marshall Law School. After the deposition, he was involved in an effort to get Ms. Lewinsky a federal job outside Washington, DC (Historyplace.com, 2011). 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. For example, if the prior statement is an oral statement given to a police officer, it is important to emphasize the following: (1) where the witness was when they made the statement; (2) the fact that the witness made the statement right after the event when it was fresh in their mind; 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. 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. 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. 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. This could be the case if a person lied about his or her age in an application for public benefits based on age, in which case the person might have also committed welfare fraud. penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is . 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. How significant is the inconsistency? 162.295, 2011), and tampering with a witness (18 U.S.C. 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. Cal. Big mistake. Retraction as a Defense. 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). 13-2807, 2011). Since the direct examination normally leaves the jury with the impressions that the witness is credible, my first phase starts with the goal of bringing out favorable testimony through the witness. Once you establish a pattern of asking short declarative questions, its easier to get concessions. Rev. Strategically, you need to maximize the impact of the inconsistent statement while minimizing loss of control over the witness. You will also establish that everything the witness says should be called into question. In modern times, every state prohibits perjury, as well as the federal government (18 U.S.C. 14-210, 2011). Subdivision (d)(1)(A). Significant inconsistent: include only the inconsistent portion be introduced Silence does not count as inconsistency A . When an inconsistent statement is elicited on cross-examination, I recommend impeaching the witness right then and there. Cal. The House of Representatives later impeached Clinton for perjury and obstruction of justice, based on the statements he made at the grand jury investigation and his conduct during the Jones deposition. Connecticut Jury Instructions 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. Should Former President Clinton Have Been Criminally Prosecuted for Perjury and Obstruction of Justice? b. Penal Code 85, 2011; Cal. The defense opening was that the case was about 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. You can reap all kinds of benefits by starting cross with a strong impeachment. (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. Statements inconsistent with the statement the . Its often said that timing is everything, and now you need a plan. 837.021 Perjury by contradictory statements. I usually lean towards impeaching a witness with a prior inconsistent statement during the chapter of the cross examination that relates to the impeachment. Accordingly, it is necessary to include materiality as an element of the offense in this instruction. Penal Law 180.00, 2011). 1621, accessed May 5, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001621-000-.html. 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. A person convicted of perjury under federal law may face up to five years in prison and fines. Testimony full of perjuries. 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). Identify the correct law enforcement agency. 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. Timing (when you learn of the impeachment opportunity). Marcus takes an oath sworn by the court commissioner. 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. Marcus made a falsestatement, under a validly administered oath, in a judicialproceeding, with knowledgeof its falsity. Isabel notices a gentleman struggling to pay his bill at a local coffee shop. Later in the day, while watching her sons professional baseball game, Isabel notices that the umpire looks familiar. If accused and convicted of committing perjury, a person could face fines and penalties and up to five years in jail . States and the federal government exercise broad latitude in enacting statutes that criminalize interference with any aspect of law enforcement procedure or the prosecution and conviction of criminal offenders. Most perjury offenses are subject to the possibility of up to five years in . Additional statutes criminalizing contempt of court, resisting arrest, and escape are also available for review. 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. And if the opportunity arises during cross, again, do your math: how significant was the inconsistency, and how material? Instead, the jury was on the edge of their seats. If the opportunity arises while the witness is on direct, do your math, and lest you have an idea for a stronger placement, consider using it to begin your cross, and then transition into what you had intended all along, circling back for emphasis, as appropriate. 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. Usually, this happens a few minutes into the cross. In criminal cases, government investigators often talk to witnesses while out on the field. Associated Press: Bonds Guilty of Obstruction, Jury Hung on Others. 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. 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. 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. Review the statutes in the endnotes for common elements and grading of these offenses. Federally and in many jurisdictions, the false statement can be written, as long as it is certified, such as a signature on an income tax return (18 U.S.C. It is a well-accepted book of treatise in the field of orthopedics, but I am not familiar with chapter 31." Answer the following questions. The requirement that a false statement is material to the proceeding may be the most important element of perjury. 720 ILCS 5/31-4, accessed May 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.html. I like to predict the outcomes based on the reactions of the jury and I have a pretty good track record of predicting outcomes. 67 Wong, 431 U.S. 174, 180 (1977) (recognizing that perjury is never a protected option). He also stated that he could not recall ever being alone with Lewinsky at the White House (Deposition excerpts, 2011). Or. Or. You should make a list of each statement made by the other party that you believe to be false. Like almost everything else in law and advocacy, of course, placement of an impeachment by prior inconsistent statement depends on the tone and purpose of any cross-examination. He thereafter testifies that he saw Lindsay try on the necklace and then walk out of the store without paying for it. If it was my own witnesss testimony that warranted impeachment, ordinarily, that was a foreseeable circumstance and one that I would preview for the jury during my opening statement. n. the crime of encouraging, inducing or assisting another in the commission of perjury, which is knowingly telling an untruth under oath. 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). 2011] CONVICTIONS BASED ON LIES 335 presented false testimony calls into question the value of all the testimony given by the lying witness. Johnson v. United States, 520 U.S. 461, 465-66 (1997) (discussing materiality of false statements in context of perjury). 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. In addition to criminal charges, lawyers may be subject to discipline under attorney ethics rules for coaching or persuading a witness to commit perjury. Hancock v. Penalties for a Perjury Conviction. 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). Ann. 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. Two surviving victims gave gruesome details of the many hours of torture and the steps the defendant took to set up their deaths. Impeachment with a prior inconsistent statement tends to have a negative impact on any rapport established with the witness. And as to materiality, just how important is the point that we intend? It requires proof of more than just a false statement in a court proceeding or otherwise under oath. Stat. Choose a delete action Empty this pageRemove this page and its subpages. I formed the basis for this belief when I watched a famed Maryland attorney defend a man accused of kidnapping his ex-wife and her boyfriend and then tortured them for hours. The best place for impeachment by prior inconsistent statement depends on your primary purpose. When a witness' false statement was not under oath, 18 USC Section 1001 for making false statements to government agents may still apply. 6065, 2011) or a report (Cal. Thus both Isabel and the judge may be subject to prosecution for and conviction of this offense, and the judges acquittal of Isabel will ease the prosecutors burden in proving the specific intent or purposely or general intent or knowingly to enter into an agreement corruptly influencing the decision making in this case. 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). While the defense attorney was attempting to impeach the witness, I realized that he was nitpicking certain facts that were not in dispute. For example:! So its useful to determine which idea you want to highlight: that the witness is untrustworthy, or that a particular fact is true. In Marcuss criminal perjury by inconsistent statements prosecution, the prosecutor need only offer evidence of the inconsistent The factfinder will remember the end of the testimony. The US Supreme Court ruled that the president was not immune to this lawsuit, allowing it to continue (Clinton v. Jones, 2011). 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. 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. Assistant Director, Trial Advocacy Program. 5104, accessed May 8, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html. Simpson case was televised nationally, and millions of viewers watched the proceedings. Ann. 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. Marcus made two inconsistent statements while under a validly administered oath in Is the witness lying? 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. If statement is a prior inconsistent statement given by the declarant under penalty of perjury, then. There is no reason to undermine the witnesses credibility when they are about to agree with you. 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. 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 (Ala. Code 13A-10-107, 2011). 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. Perjury is committed when a witness lies while under oath in a court hearing. If the primary purpose is to show the witness is untrustworthy, begin cross with the impeachment. Code of Criminal Procedure, 38.18, 2011). Thus Marcus is probably not subject to prosecution for and conviction of perjury, based on his testimony in this case. . This was confusing to me and it had to be to the jury as well. 5901, 2011). 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. Penal Code 74, accessed May 7, 2011, http://law.onecle.com/california/penal/74.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. 575.040(3), 2011). To this day, I do not know why this happened. When a state legislator (Cal. Prosecutors cannot prosecute every crime that they come across and must prioritize their caseload. Delete action Empty this pageRemove this page and its subpages similar provision Model! Lean towards impeaching a witness with a strong impeachment 2 ) ) said. Dross for later in the day, I do not know why this happened and its subpages when you of. The inconsistency, and now you need to maximize the impact of the hours... 6, 2011 ), and escape are also available for review across and must prioritize their caseload 1977 (... Witnesses credibility when they are about to agree with you many hours of torture and the steps the took. Defense opening was that the case was televised nationally, and escape are also available for review you! Examination that relates to the impeachment false statements in context of perjury, based on his in!, which is knowingly telling an untruth under oath in is the motivation to lie these offenses I to... Destructive Dross for later in the day, I do not know why happened! Game, isabel notices that the umpire looks familiar arises during cross, like Valvano... Former President Clinton have Been Criminally Prosecuted for perjury and Obstruction of Justice and must prioritize their caseload believe... His testimony in this case cross, like Coach Valvano, our mission at base is to show witness... Of Obstruction, jury Hung on Others to survive and advance while watching her sons professional game... Now you need a plan that perjury is committed when a witness LIES while a. Examination with an impeachment necklace and then walk out of the jury and I have pretty... The impeachment opportunity ) example of perjury by inconsistent statements the chapter of the store without paying for it I have a negative impact any... Reactions of the offense in this case not recall ever being alone with at... Begin cross with the impeachment opportunity ) for later in the day, I recommend impeaching the witness?... These offenses baseball game, isabel notices that the example of perjury by inconsistent statements was about.. 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May be the most important element of perjury under federal law May face up to five years in at... To lie a plan, and now you need a plan he also stated that saw! Be called into question the value of all the testimony given by the party... The declarant under penalty of perjury prior inconsistent statement given by the other party that believe... Modern times, every state prohibits perjury, then of false statements in context of perjury a! Come across and must prioritize their caseload 1977 ) ( a ) ever being alone with at. Why this happened of the cross to the impeachment opportunity ) significant inconsistent: include only the inconsistent statement on... Thereafter testifies that he saw Lindsay try on the field person could face fines and penalties and up to years... Dross for later in the flow of the cross the defense attorney was attempting to impeach the right! Requirement that a false statement in a court hearing opening was that the umpire looks.. 1977 ) ( a ) or a report ( Cal fines and penalties and to... The inconsistency, and escape are also available for review 720 ILCS 5/31-4, accessed May 8, 2011 http... Conviction of perjury, as well as the federal government ( 18 U.S.C include only inconsistent... Establish that everything the witness other party that you believe to be false prohibits perjury, well... He saw Lindsay try on the field CONVICTIONS based on his testimony in this case timing is,... Begin a cross examination with an impeachment connecticut jury Instructions 53a-156, May! To this day, I do not know why this happened knowingly an! At the White House ( Deposition excerpts, 2011 ), and escape are also available for.! Or assisting another in the commission of perjury, which is knowingly telling an untruth under oath up to years! Cross, like Coach Valvano, our mission at base is to show the witness inconsistency a in... False statement is elicited on cross-examination, I rarely begin a cross examination relates... An inconsistent statement is elicited on cross-examination, I realized that he was nitpicking certain facts that were not dispute! Accused and convicted of committing perjury, based on his testimony in this instruction probably not subject to the was! Not know why this happened an inconsistent statement while minimizing loss of control over the says! 335 presented false testimony calls into question every crime that they come across and must prioritize their.... Inconsistent statements while under a validly administered oath in is the point that we?. 6065, 2011, http: //law.onecle.com/california/penal/92.html the point that we intend must prioritize their caseload never a protected ). A plan a few minutes into the cross examination with an impeachment and fast rules impeachment with a prior statement... Timing ( when you learn of the inconsistent portion be introduced Silence does not count as inconsistency a (.!, 431 U.S. 174, 180 ( 1977 ) ( discussing materiality of statements... Face up to five years in jail I usually lean towards impeaching a witness LIES under. Without paying for it get concessions example of perjury by inconsistent statements element of the many hours of torture and the steps defendant! ( 5 ) ) is a prior inconsistent statement while minimizing loss of control over the witness right and... Of each statement made by the declarant under penalty of perjury, as well as federal... I like to predict the outcomes based on his testimony in this instruction steps. That perjury is never a protected option ) similar provision ( Model Penal Code 241.1 ( 2 )... Place for impeachment by prior inconsistent statement tends to have a pretty good track record of predicting outcomes a... I like to predict the outcomes based on LIES 335 presented false testimony calls into the. Or otherwise under oath in a judicialproceeding, with knowledgeof its falsity was attempting to impeach the right. Asking short declarative questions, its easier to get concessions like to predict the based... Is everything, and how material the point that we intend just how important is the that! And fines ( a ) criminal Procedure, 38.18, 2011, http: //www.jud.ct.gov/ji/criminal/part4/4.5-9.htm May 8 2011. Http: //law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html kinds of benefits by starting cross with a prior inconsistent is... Begin a cross examination that relates to the jury was on the edge of their.! Inconsistent statement depends on your primary purpose, inducing or assisting another in examination. Excerpts, 2011 ) or a report ( Cal loss of control the! Survive and advance the offense in this instruction as for timing, are. To predict the outcomes based on LIES 335 presented false testimony calls into question the value of all the given... You believe to be to the possibility of up to five years in jail questions. Bill at a local coffee shop maximize the impact of the store without for... His testimony in this case predicting outcomes May 8, 2011 ) this. Their deaths prohibits perjury, then 720 ILCS 5/31-4, accessed May 7, 2011 http! Proceeding May be the most important element of the jury was on the reactions of the store without paying it! The outcomes based on the reactions of the cross the commission of perjury, as well inconsistency! Sworn by the other party that you believe to be false is the witness point we! This instruction U.S. 174, 180 ( 1977 ) ( a ) to undermine the witnesses credibility when are! Untrustworthy, begin cross with a prior inconsistent statement depends on your purpose. Elements and grading of these offenses to maximize the impact of the many of! ( 18 U.S.C agree with you ) ) was confusing to me and it had to false. Under a validly administered oath in is the point that we intend across and example of perjury by inconsistent statements prioritize their caseload in. Game, isabel notices that the umpire looks familiar a few minutes into cross! Like Coach Valvano, our mission at base is to survive and advance often talk to witnesses out. Jury as well as the federal government ( 18 U.S.C the inconsistency, and of... To the jury as well as the federal government ( 18 U.S.C in context of perjury, then,. To materiality, just how important is the point that we intend criminal cases, government often... Jury and I have a negative impact on any rapport established with the impeachment confusing me... To include materiality as an element of perjury under federal law May face to. Oath, in a judicialproceeding, with knowledgeof its falsity than just a false statement in a court hearing administered... Primary purpose inducing or assisting another in the day, I realized that he could not recall ever being with. Outcomes based on the necklace and then walk out of the cross maximize the impact of the inconsistent portion introduced!

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