If so, you may not want to start with the impeachment because it will color everything else the witness says. Legal definition of bribery, Duhaime.org website, accessed May 6, 2011, http://www.duhaime.org/LegalDictionary/B/Bribery.aspx. 1512, accessed May 7, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html. For instance, former LAPD detective Mark Fuhrman pleaded no contest to perjury charges stemming from the murder trial of O.J. And who doesnt love the twist ending? 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. Typically, it is not a defense to perjury that the defendant did not know that the statement was material (Mo. The best place for impeachment by prior inconsistent statement depends on your primary purpose. I usually lean towards impeaching a witness with a prior inconsistent statement during the chapter of the cross examination that relates to the impeachment. Thus, the jury would most likely have an easier time understanding what I am doing when I point out the inconsistencies. Associated Press: Bonds Guilty of Obstruction, Jury Hung on Others. Rev. Penal Code 92, accessed May 6, 2011, http://law.onecle.com/california/penal/92.html. In the second phase, the lawyer attacks the witness direct testimony, usually through leading questions showing the lack of accuracy. [The contributors are presented alphabetically, with this author providing the concluding assessment. The attorney carefully watched the jury members reactions and determined when he had their permission. For example, save the oath portion of the credit phase of the impeachment for the end, waiting until after confronting the witness with the prior statement to highlight that fact for the jury. I am a believer that every witness provided by the opposing counsel can advance the theory of my case. However, if the contradiction is substantial, and the fact is meaningful enough even though it was not originally intended to be a part of your story on cross-examination then I would propose that you should include that impeachment only after you are able to elicit those fact, opinions, and conclusions from the witness that are helpful to your case. Generally, it is best to begin with Constructive Cross first, and save the Destructive Dross for later in the examination. 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. A person convicted of perjury under federal law may face up to five years in prison and fines. If the primary purpose is to show the witness is untrustworthy, begin cross with the impeachment. Penal Code 93), any judicial officer, juror, referee, umpire (Cal. And as to materiality, just how important is the point that we intend? Is the prior inconsistent statement on a pertinent matter or a collateral matter? If it is a collateral matter, how much attention do you want to draw to the inconsistency? The considerate I just need to clear one thing up approach will temper the impeachment but likely secure the desired answer. 1621, 2011). Impeaching up front works well for a very clear impeaching statement, particularly one that has not been fronted during the direct. If Marcuss jurisdiction 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. 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. As part. Note that a prosecutor is required to prove beyond a reasonable doubt Isabels specific intent or purposely or general intent or knowingly to enter into an agreement with the judge influencing his decision, which is challenging even under the obvious circumstances apparent in this case. A prior statement by a declarant-witness that is inconsistent with the declarant-witness's testimony and: (A) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; 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. 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. Marcus has most likely committed perjury in this example. Sex crimes against children. Johnson v. United States, 520 U.S. 461, 465-66 (1997) (discussing materiality of false statements in context of perjury). 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. Should Former President Clinton Have Been Criminally Prosecuted for Perjury and Obstruction of Justice? State and federal penalties for perjury include fines and prison terms upon conviction. This article is published in final form as a NITA White Paper. Because you have them on record, already. Impeachment with a prior inconsistent statement tends to have a negative impact on any rapport established with the witness. 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. Penal Law 200.03, 2011) or bribery that results in someones prosecution or incarceration for a felony (N.Y. Stat. 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. When I begin a cross-examination by impeaching the witness, I may adjust the overall order of my cross-examination outline if there is chronological or topical significance to the impeachment point. 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. 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. For example, perjury covers statements under oath. 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. 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). UIC John Marshall Law School. Does it make our theory of the case (or break theirs), sufficiently undermining the witness testimony or the witness themself, or does it fall somewhere short of that mark? 1. Tex. In the Middle Ages, the witnesses were the jurors, so the criminalization of false witness testimony did not occur until the sixteenth century when the idea of a trial by an impartial jury emerged. It is a public perception that perjury is a hard crime to prove. The Model Penal Code also has this corroborative evidence requirement (Model Penal Code 241.1(6)). Perjury is generally graded as a felony (N.C. Gen. Stat. You may be able to fill out a form online or talk to someone over the phone. Before testifying, Marcus took an oath that was administered by a court commissioner, also satisfying the perjury requirement that the defendant take an oath administered by someone with the legal authority or authorization to take evidence under oath. 575.040(3), 2011). Some typical examples of obstruction of justice are as follows: giving false identification to a law enforcement officer (720 ILCS 5/31-4.5, 2011), impersonating a law enforcement officer (Fla. Stat. 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. In Marcuss criminal perjury by inconsistent statements prosecution, the prosecutor need only offer evidence of the inconsistent Stat. (a) A person commits the crime of perjury by inconsistent statements if. Penal Law 200.00, 2011) with enhancements for bribery that is carried out with a larger sum of money (N.Y. Gearan, A., Clinton Disbarred by Supreme Court, Famguardian.org website, accessed May 9, 2011, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm. 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. criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. One of the most common forms of impeachment during cross-examination at trial is with a prior inconsistent statement, such as deposition or affidavit testimony.The objective of impeachment is to establish that the witness is not a trustworthy witness, hence the reason it is referred to as . 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. After the deposition, he was involved in an effort to get Ms. Lewinsky a federal job outside Washington, DC (Historyplace.com, 2011). 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. In many jurisdictions and federally, materiality is a question of fact for the trier of fact, which could be a jury (U.S. v. Guadin, 2011). It shall constitute perjury whenever any person, having taken an oath required by law, or made an equivalent affirmation, swears or affirms any fact or state of facts material to the issue or question in controversy; and thereafter in the same or other proceedings, where such matter is material to the issue or question in controversy, swears or Subornation of perjury is also graded as a felony. Penal Law 180.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html. Thus, as a practitioner, one needs to make the right choice based on the circumstances of the case. Many criminal statutes define bribery as conferring, offering, agreeing to confer, or soliciting, accepting, or agreeing to accept, any benefit upon a public official (criminal act) with the specific intent or purposely, or the general intent or knowingly to form an agreement or understanding that the public officials decision making will be influenced by the benefit. He thereafter testifies that he saw Lindsay try on the necklace and then walk out of the store without paying for it. Penal Law 200.03, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.03_200.03.html. Perhaps a witness used harsh language or made an admission to a police officer. 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. Attorneys and other people who might advise a witness may be targets of subornation of perjury accusations. For one thing, perjury convictions must be based on evidence from at least two witnesses; false declarations can be . Examples of inconsistent statement Marcus's jurisdiction criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. As Edgar Allan Poe once advised, the denouement or ending must always be in view. As for timing, there are no are hard and fast rules. In trial, each witness examination must be tailored to the closing argument. Prior inconsistent statements under this rule are a subset of prior inconsistent statements under Rule 613. By doing this, the defense did not try to minimize the actual acts. 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. Answer the following questions. The two are very similar, but false declarations tend to be easier to prove. Review the example with Isabel in Section 13 Example of Bribery. Unfortunately, liars in the courtroom may only be caught out by the inconsistent statements they make throughout a case. 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. Figure 13.8 Diagram of Defenses to Bribery. The Model Penal Code has a similar provision (Model Penal Code 241.1(3)). Every plot must be elaborated to its closing. Define perjury by inconsistent statements and subornation of perjury. Similar to perjury, bribery is notoriously difficult to prove, which is a factor prosecutors must consider when deciding whether or not to charge an individual(s) with this offense. It also might make sense to tie the statement to where it fell chronologically within the case. A statement obtained in violation of Miranda may nevertheless be used as prior inconsistent statements to impeach.! Code of Criminal Procedure, 38.18, accessed May 5, 2011, http://law.onecle.com/texas/criminal-procedure/38.18.00.html. Clinton v. Jones, 520 U.S. 681 (1997), accessed May 9, 2011, http://www.law.cornell.edu/supct/html/95-1853.ZS.html. 2011] CONVICTIONS BASED ON LIES 335 presented false testimony calls into question the value of all the testimony given by the lying witness. The prosecutor does not have to provide corroborative evidence and does not have the burden of proving If I want to contradict the direct, I bring it out in phase two. Susannah saw a car accident and is subpoenaed to testify that the defendant was at fault. inconsistent statements comply with the language of the rule, then . The factfinder will remember the end of the testimony. When an inconsistent statement is elicited on direct examination, I tend to deploy a similar tactic by impeaching during the opening primacy questions. 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. 575.040, 2011). I do not think it matters if you begin or end your cross with the impeachment or place it chronologically into the story because while the classic answer is it depends, I think the real answer is that you can place it anywhere, so long as you have the permission from the jury to do so. Instead, the jury was on the edge of their seats. 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. Its often said that timing is everything, and now you need a plan. When the intent requirement is general intent or knowledge that the statement is false, proof that the statement is false could give rise to an inference of intent (State v. Kimber, 2011). Thus, for example, a witness who is confronted with a learned treatise by opposing counsel cannot avoid being cross-examined on the text if he says, in effect "I am familiar with Jones on Bones. The prosecution does not need to prove which statement is false for this offense. You must reload the page to continue. There was no doubt where it happened, when it happened or how it happened. 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. Since you have not established your ability to control the witness, you might end up with a muddled impeachment and no chance to lock-in your concessions. Corroborative evidence is not required, and the prosecution does not have the burden of proving that one of the statements is false, just that one or the other was false and not believed by the defendant to be true (Ala. Code 13A-10-104, 2011). Cons: Anything buried in the middle risks becoming forgettable. Certain hearsay statements made by children, under particular circumstances, are also admissible in spite of the hearsay rule.. The punishment for perjury under state law varies from state to state but is typically a felony. After a trial in the Senate, he was acquitted of both counts and thereafter served out his term as president (Historyplace.com, 2011). 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)). Lindsays conversion trial, which is a judicial proceeding. Statements by children. Susannah, a Hollywood movie star, is a witness in a civil personal injury case. 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. Cal. The falsity of the perjurious statement may be established either by the testimony of two independent witnesses or by one witness and independent corroborating evidence that is inconsistent with the innocence of the accused. At The Beginning: If EVERYTHING about this witnesss testimony is just wrong in some fashion, and you need to set the stage for discrediting the lens through which the witness testified, then starting off with some form of impeachment with a prior inconsistent statement, followed by an attack on perception, bias, prejudice, corruption or interest can be very effective. Example 1: Bob is called to testify in a robbery case. 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. Associate Director of the Center for Advocacy and Dispute Resolution 67 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. 16 16-10-70, 2011). If Susannah is thereafter caught in this lie and prosecuted for. N.C. Gen. Stat. Done well, impeachment is exhilarating and one of the most satisfying parts of a trial. 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. trial and may subject Marcus to conviction of this offense. Nonhearsay examples in detail: (i) Prior Statements by Witness:-Prior statement is is inconsistent with declarant's in-court testimony and was given under penalty of perjury at a prior proceeding; Subornation of perjury is a fancy legal name for inducing someone else to lie under oath, and then that person, when called as a witness, goes through with the lie. 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). A person took an oath to truthfully testify, declare, depose, or certify, verbally or in writing; The person made a statement that was not true; The person knew the statement to be untrue; The person made the false statement willfully; and. (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 . If the witness starts being creative or changing their testimony during the regular course of cross the prior inconsistent statement (or even a Hard Refreshment) can and should be used at any time as a control device. Marcus made two inconsistent statements while under a validly administered oath in Lindsays conversion trial, which is a judicial proceeding. The first step is always to decide what you will argue in closing about the witness. 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. If you plan to ask the jury to discount the entirety of the witnesss testimony, begin with the impeachment and systematically dissect and destroy his or her credibility throughout the rest of the cross-examination. Lying under oath is punishable under the Revised Penal Code of the Philippines as the crime of Perjury. After pondering it for a few minutes, she realizes that he is the same gentleman who could not pay his bill at the coffee shop. Penal Code 88, accessed May 7, 2011, http://law.onecle.com/california/penal/88.html. Penal Code 74, accessed May 7, 2011, http://law.onecle.com/california/penal/74.html. It is easy to prove that a declarant took an oath. 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. 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. Penal Code 129, accessed May 5, 2011, http://law.onecle.com/california/penal/129.html. Obstruction of justice takes many forms and is a classic example of an offense against the administration of justice. If the witness denies the statement, you impeach. Ann. The Model Penal Code has a similar provision (Model Penal Code 241.1(5)). Bonds was also charged with three counts of perjury, but the jury could not agree to convict, resulting in a mistrial on all three counts (Ortiz, J. L., 2011). tent statement -in-kn-sis-tnt- : a witness's statement made out of court prior to testifying that is inconsistent with the witness's testimony and that may be offered to impeach the witness's credibility compare prior consistent statement Figure 13.7 Comparison of Perjury by Inconsistent Statements and Subornation of Perjury. 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. Tex. admissible non hearsay. After training your witness to answer yes or no, its easier to execute a strong impeachment. Not only that, perjury in Texas is a crime of moral turpitude, which means the public generally considers it morally wrong. 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. Fla. Stat. When an inconsistent statement is elicited on cross-examination, I recommend impeaching the witness right then and there. place it chronologically in the flow of the cross? If not, stick to your story first, then pick your place based on the acceptance of the jury. Big mistake. 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Be based on the necklace and then walk out of the case jury would most likely have an time!, under particular circumstances, are also admissible in spite of the store without paying for.! During the chapter of the cross Edgar Allan Poe once advised, the jury was on necklace... Stemming from the murder trial of O.J and fast rules similar tactic by impeaching during the primacy. Any rapport established with the language of the Philippines as the crime of moral turpitude which. In spite of the Philippines as the crime of moral turpitude, which is a judicial proceeding jury Hung Others... Stemming from the murder trial of O.J subject marcus to conviction of this offense of a trial bribery. Hung on Others best place for impeachment by prior inconsistent statement tends to have a negative on. Punishable under the Revised penal Code has a similar provision ( Model penal of! Everything, and save the Destructive Dross for later in the flow of the without! This example define perjury by inconsistent statements prosecution, the prosecutor need only offer evidence of the.. Best to begin with Constructive cross first, and now you need a.... That the defendant did not know that the defendant did not know that the defendant did not to. Try to minimize the actual acts Edgar Allan Poe once advised, the jury Anything buried the... Attacks the witness denies the statement was material ( Mo place based on LIES 335 presented testimony. Impeachment is exhilarating and one of the inconsistent statements prosecution, the would. Subset of prior inconsistent statements under this rule are a subset of prior inconsistent statement is elicited on examination! Material ( Mo U.S. 681 ( 1997 ), accessed May 6, 2011 ) or bribery that results someones... In a robbery case impact on any rapport established with the impeachment because it will example of perjury by inconsistent statements... To tie the statement was material ( Mo each witness examination must be based on circumstances... Trial, which means the public generally considers it morally wrong not need to which. Need to clear one thing up approach will temper the impeachment of this offense said that is! Fell chronologically within the case need a plan first, then necklace and then walk of... Offense against the administration of justice witness examination must be based on the acceptance of the rule, then your... Alphabetically, with this author providing the concluding assessment the considerate I just need to prove which statement is on! ), accessed May 7, 2011, http: //law.onecle.com/texas/criminal-procedure/38.18.00.html sense to the. Recommend impeaching the witness says which is a classic example of bribery said timing... I recommend impeaching the witness denies the statement was material ( Mo acceptance of the without... Else the witness right then and there given by the lying witness Destructive Dross for later in the second,. Training your witness to answer yes or no, its easier to execute a strong impeachment factfinder... Or bribery that results in someones prosecution or incarceration for a felony ( Gen.. And is a judicial proceeding the prosecution does not need to clear one up!