Penal Code 129, accessed May 5, 2011, http://law.onecle.com/california/penal/129.html. He also stated that he could not recall ever being alone with Lewinsky at the White House (Deposition excerpts, 2011). The jury became upset and turned away. Ultimately, we won the case because the technician made a statement that was not backed by science. This section analyzes perjury, bribery, and obstruction of justice, along with the issues commonly encountered when prosecuting these offenses. N.C. Gen. Stat. Most state laws have similar provisions, but judges typically have the discretion to use . A prior statement may be "inconsistent" without being directly contradictory, moreover. These facts were not in dispute, everyone saw the tape, there was no need to get into the small details. 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. The only question was whether the owners of the dog had actual criminal liability. Mo. Jrank.org website, PerjuryPerjury at Common Law, accessed May 5, 2011, http://law.jrank.org/pages/1632/Perjury-Perjury-at-common-law.html. It also forces a predictable move by your opponent. Stat. (2) offered to prove the truth of the matter asserted. 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. Finally, Ann. Fla. R. Evid. At the end of cross examination (unlike the very beginning), I would have also gained credibility as the questioner. In those circumstances delaying the impeachment until it fits naturally into the cross-examiners story will be appropriate. To establish a case of subornation of perjury, a prosecutor must demonstrate that perjury was committed; that the defendant procured the perjury corruptly, knowing, believing or having reason to believe it to be false testimony; and that the defendant knew, believed or had reason to believe that the perjurer had knowledge of the falsity of his or Identify the correct law enforcement agency. It also might make sense to tie the statement to where it fell chronologically within the case. Texas Penal Code 37.02 ^2. If known to members of the prosecution team, it casts doubt on the honesty of the entire case. This definition was also incorporated into early American common law (Jrank.org, 2011). 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. Isabel and the judge may still be prosecuted for and convicted of bribery in many jurisdictions and under the Model Penal Code because lack of authority is typically not a defense to bribery under modern statutes criminalizing this offense. 162.265, accessed May 6, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.265.html. ! The Model Penal Code also criminalizes as bribery the act of conferring, offering, agreeing to confer, soliciting, accepting, or agreeing to accept any benefit in exchange for a judicial or administrative officers decision, vote, recommendation, or other exercise of official discretion (Model Penal Code 240.1(2)). Jurors, like all of us, are best at understanding ideas if they only need to understand one idea at a time. With the more predictable impeachment you can think about how, and more importantly, when to set up an impeachment. I understand Professor Lippys motivation to gain credibility as the questioner before venturing into a witness impeachment. The factfinder will remember the end of the testimony. If the witness is lying, what is the motivation to lie? that the first statement was false, which will simplify and expedite the They stopped listening. 1512, 2011) or juror (Ariz. Rev. Rarely is a cross-examination limited to an attack on credibility there are often multiple goals which may include eliciting positive/supportive facts and ultimately telling or reinforcing the story the witness examiner is presenting. Penal Law 295.10, 2011), giving false evidence (720 ILCS 5/31-4, 2011), hiding or concealing oneself and refusing to give evidence (720 ILCS 5/31-4, 2011), tampering with evidence (Or. 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. Marcus made a falsestatement, under a validly administered oath, in a judicialproceeding, with knowledgeof its falsity. Marcus has probably not committed perjury in this case. Macys department store is suing Lindsay for the alleged theft of a diamond necklace. criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. Penal Code 88, accessed May 7, 2011, http://law.onecle.com/california/penal/88.html. In that trial is competitive storyshowing in context, H.T. Aggravated perjury is a third-degree felony, which is punishable by 2 to 10 years in prison and a $10,000 fine. This article is published in final form as a NITA White Paper. 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. 18 U.S.C. 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. 162.275, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.275.html. Figure 13.7 Comparison of Perjury by Inconsistent Statements and Subornation of Perjury. Ariz. Rev. Hence, my preference is to open an examination with the impeachment as a sort of I told you so to the jury when that opportunity presents itself and thereby my credibility as the advocate is reinforced. Thus, there would be a smooth place to insert the impeachment into the cross examination. In a sense, a person must make a false statement with an intent to defraud. But, of course, there is no one size fits all solution. The best place for impeachment by prior inconsistent statement depends on your primary purpose. Charged with multiple felonies including two counts of attempted murder, the attorney did not object to a single prosecution witness. You must have organized documents that you can find quickly and must also consider how and when to prove up the impeachment. Identify the statements you believe to be perjury. Legal definition of bribery, Duhaime.org website, accessed May 6, 2011, http://www.duhaime.org/LegalDictionary/B/Bribery.aspx. 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. Penal Law 180.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html. 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. 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. 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. There, it usually is best to structure your cross so that the impeachment comes toward the end of the cross. 42 Pa. Cons. Ann. ], Director of A. Barry Cappello Program in Trial Advocacy, The best place for impeachment by prior inconsistent statement depends on your primary purpose. 162.295, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.295.html. 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). Tex. 613(b) differs from F.R.E. Youve minimized risk by locking in your must-have questions. The requirement that a false statement is material to the proceeding may be the most important element of perjury. Or now?), ending on the impeachment can help further the goals of cross. Ann. 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. Figure 13.8 Diagram of Defenses to Bribery. Is the witness lying? UIC John Marshall Law School. Gearan, A., Clinton Disbarred by Supreme Court, Famguardian.org website, accessed May 9, 2011, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm. 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. Ortiz, J. L., Verdict in: Bonds Found Guilty, but Case Not Closed Yet, USA TODAY website, accessed May 8, 2011, http://www.usatoday.com/sports/baseball/2011-04-13-verdict-barry-bonds-guilty_N.htm. Later in the day, while watching her sons professional baseball game, Isabel notices that the umpire looks familiar. Suppose an expert testified that she is neutral and doesn't really know the parties. Related to DECLARATION UNDER PENALTY OF PERJURY. Most jurisdictions criminalize subornation of perjury, which is typically 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 in fact committed (N.C. Gen. Stat. 1. N.Y. 4. 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 . Primacy is your friend and the factfinder will remember the first few minutes of the cross. N.Y. N.Y. Assuming that is the case, then I would almost never start the cross-examination with the impeachment with that prior inconsistent statement for two reasons. Check your inbox or spam folder to confirm your subscription. I teach that cross examination should be separated into three sections. 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. Perhaps, for example, a person made a false statement to law enforcement while not subject to an oath or penalty. Marcus has most likely committed perjury in this example. This type of bribery is typically called commercial bribery (N.Y. 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. A safer strategy is to wait until you can control the witness and after youve elicited your concessions before impeaching and creating hostility with your witness. Stat. All these acts are generally supported by specific intent or purposely, or general intent or knowingly. If you have nothing to present as a potential reason for the lie, then you may not want to frame the witness as a liar. Penal Code 85, accessed May 6, 2011, http://law.onecle.com/california/penal/85.html. A solid win for the defense based on the facts. The Model Penal Code allows for an oath or equivalent affirmation (Model Penal Code 241.1(1)). Thus, the jury would most likely have an easier time understanding what I am doing when I point out the inconsistencies. If the witness denies the statement, you impeach. Not a second longer. The lesson here is that sticking to telling your clients story first must be the first thing on your mind whenever you decide to cross and consider an impeachment. Clinton: I did not have sexual relations with that woman. It is punishable by imprisonment of up to 2 years and four months. c. And the witness is available for cross-examination When the statement is partly inconsistent and partly consistent a. Attorneys and other people who might advise a witness may be targets of subornation of perjury accusations. 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. Ohios perjury statute defines material as something that could affect the course or outcome of the proceeding. The U.S. Supreme Court defined it, in Kungys v. United States, as a statement that has a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed.(internal quotation marks omitted). It requires proof of more than just a false statement in a court proceeding or otherwise under oath. Obstruction of justice is graded anywhere from a misdemeanor to a felony, depending on the offense. In every trial attorneys arsenal of weapons, the impeachment by prior inconsistent statement is one of the most powerful. Janelle flatly refuses. [house hearing, 105 congress] [from the u.s. government printing office] the consequences of perjury and related crimes ===== hearing before the committee on the judiciary house of representatives one hundred fifth congress second session on the consequences of perjury and related crimes _____ december 1, 1998 _____ serial no. N.Y. 13-2807, accessed May 7, 2011, http://law.onecle.com/arizona/criminal-code/13-2807.html. Impeaching up front works well for a very clear impeaching statement, particularly one that has not been fronted during the direct. Deposition excerpts, Jones v. Clinton deposition, Historyplace.com website, accessed May 9, 2011, http://www.historyplace.com/unitedstates/impeachments/jones-deposition.htm. Usually, this happens a few minutes into the cross. If I had evidence that the witness actually had a personal relationship with my opposing party, I would start the cross there. My short answer is that there is no hard and fast rule. And as to materiality, just how important is the point that we intend? The defense was doing a great job with this theme and there seemed to be some reasonable doubt. 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. Penal Law 200.00, 2011) with enhancements for bribery that is carried out with a larger sum of money (N.Y. That being said, I may delay impeaching a witness when there is helpful or affirmative information to be gained during cross-examination. 1621, 2011). Penal Code 92, accessed May 6, 2011, http://law.onecle.com/california/penal/92.html. Is it best to, Or is the answer that classic law professor response of it depends? 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