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. I once was crossing the author of one of the FBIs books on evidence. 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. Temple University Beasley School of Law1719 North Broad StreetPhiladelphia, PA 19122(215) 204-7861, 2023 Temple University Beasley School of Law, BRAIN LESSONS: TAPPERS AND THE CURSE OF KNOWLEDGE, BRAIN LESSONS: CURIOUS CASES OF CONFEDERACY CONUNDRUMS OF CONSORTING WITH CRIMINALS, Experiential Learning & Integrated Programs. 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. False . Even under oath, if the witness lies concerning an immaterial subject that is irrelevant to the proceeding, it's not classified as perjury. On cross, you will confront the witness about these statements. n. the crime of encouraging, inducing or assisting another in the commission of perjury, which is knowingly telling an untruth under oath. 843.08, accessed May 7, 2011, http://law.onecle.com/florida/crimes/843.08.html. Subornation of perjury is also graded as a felony (N.C. Gen. Stat. Figure 13.8 Diagram of Defenses to Bribery. Impeachment with a prior inconsistent statement is frightening for novice attorneys. Examples of inconsistent statement Marcus's jurisdiction criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. One last point, an essential one, is the matter of tone. When a person has made inconsistent statements under oath, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single charge alleging in the alternative that one or the other was false and not believed by the defendant. Suppose an expert testified that she is neutral and doesnt really know the parties. This article is published in final form as a NITA White Paper. 575.040(3), 2011). When the Macys attorney asks Marcus what he was doing at Macys, Marcus responds that he was buying some jewelry as a gift for his wife. 14-209, accessed May 6, 2011, http://law.onecle.com/north-carolina/14-criminal-law/14-209.html. 5104, accessed May 8, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html. N.C. Gen. Stat. The first type of perjury involves statements made under oath, and requires proof that: The second type of perjury involves unsworn statements, and requires proof that: State laws defining perjury are generally similar to the federal statute. Thus modern laws of perjury are calculated to ensure that witnesses testify truthfully so that justice can be done in each individual case. It is easy to prove that a declarant took an oath. Webster's New World Law Synonyms: bearing false witness lying under oath willful falsehood violation of an oath false statement untruthfulness Penal Law 180.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html. Obstruction of justice is graded anywhere from a misdemeanor to a felony, depending on the offense. Rev. Later in the day, while watching her sons professional baseball game, Isabel notices that the umpire looks familiar. No matter which strategy you decide on, you must practice the steps to be efficient and clear. Stat. Therefore, perjury charges are more likely in high-profile cases. (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 . 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. The US Supreme Court ruled that the president was not immune to this lawsuit, allowing it to continue (Clinton v. Jones, 2011). Clinton v. Jones, 520 U.S. 681 (1997), accessed May 9, 2011, http://www.law.cornell.edu/supct/html/95-1853.ZS.html. Rev. 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 . 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. (1) Prior Inconsistent Statement of Declarant-Witness. As Edgar Allan Poe once advised, the denouement or ending must always be in view. 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. However, it would not be perjury if your witness statement was about what you have heard and not seen. When a state legislator (Cal. Stat. If you know of the opportunity in advance of trial, and nothing during the witness direct alters your cross examination plan, stay the course and keep in place otherwise, adapt accordingly. Ann. This would be considered sufficient proof of perjury, even without knowing which statement is actually false. 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. 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. The first common-law prohibition against witness perjury criminalized false testimony, given under oath, in a judicial proceeding, about a material issue. U.S. v. Gaudin, 515 U.S. 506 (1995), accessed May 5, 2011, http://scholar.google.com/scholar_case?case=12281686524757008977&hl=en&as_sdt=2&as_vis=1&oi=scholarr. Thus the criminal intent element for bribery appears to be lacking, and neither Isabel nor the umpire are subject to prosecution for and conviction of this offense. 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. Fla. Stat. Ann. False Statements Are Perjury. Rev. Be sure to follow your impeachment steps to elicit a clear inconsistent statement, not a mush of an answer with cloudy qualifications. Crimes against the administration of justice impede the governments ability to carry out the important functions of prosecuting and convicting criminals, which, in turn, destroys citizens confidence that the US legal system is effective in ensuring individual safety and security. While you cant plan for this unexpected impeachment, you can be ready. Subdivision (d)(1)(A). Answer the following questions. Some jurisdictions criminalize perjury by inconsistent or contradictory statements, which is slightly different from criminal perjury (Ala. Code 13-10-104, 2011).3 Perjury by inconsistent statements is easier to prove than traditional perjury because the prosecution can simply offer evidence that the defendant made statements that are inconsistent, in a judicial proceeding, after taking a validly administered oath. And as to materiality, just how important is the point that we intend? 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. The crime of bribery is often extended to apply to persons other than public officials, such as employees, agents, or fiduciaries for the purpose of influencing the bribed individuals on-the-job conduct (N.Y. The prosecutor does not have to provide corroborative evidence and does not have the burden of proving Or. Penalties for Perjury. Note that Bondss obstruction of justice charge of evading the question and refusing to give evidence appears easier to prove than the perjury charges, which have a daunting criminal intent requirement, as discussed in Section 13 Perjury Criminal Intent. In many jurisdictions, the trier of fact, which could be a judge or jury, determines whether or not the statement is material. Penal Law 200.03, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.03_200.03.html. Penal Code 85, 2011; Cal. Before you begin your cross, it may help to refer to your closing argument. Ann. 4. 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. Or now?), ending on the impeachment can help further the goals of cross. 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). Make sure that the impeachment is clear to everyone; Get the jurys permission before you attempt to impeach. This type of bribery is typically called commercial bribery (N.Y. Deposition excerpts, Jones v. Clinton deposition, Historyplace.com website, accessed May 9, 2011, http://www.historyplace.com/unitedstates/impeachments/jones-deposition.htm. Federal law ( 18 USC 1621 ), for example, states that anyone found guilty of the crime will be fined or imprisoned for up to five years. 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. Cal. c. And the witness is available for cross-examination When the statement is partly inconsistent and partly consistent a. Sex crimes against children. Penal Law 200.10). Marcus has most likely committed perjury in this example. Usually, this happens a few minutes into the cross. The false statements always form a part of perjury as you are taking the oath of telling the truth despite authenticating a lie in front of the jury. Penal Code 93), any judicial officer, juror, referee, umpire (Cal. 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. ! Be certain that the impeachment is necessary and consider whether you can simply refresh the witnesss recollection rather than pointing out an inconsistency. Ala. Code 13A-10-61, accessed May 7, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-61.html. Clinton: I did not have sexual relations with that woman. Juries depend on witness testimony to reach a fair and impartial verdict in civil and criminal trials, and grand juries depend on witness testimony to indict defendants for criminal conduct. (2) offered to prove the truth of the matter asserted. 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. Ann. So its useful to determine which idea you want to highlight: that the witness is untrustworthy, or that a particular fact is true. 6065, accessed May 5, 2011, http://www.law.cornell.edu/uscode/26/usc_sec_26_00006065-000-.html. Not a second longer. The defense was doing a great job with this theme and there seemed to be some reasonable doubt. In the third phase, we do a direct attack on witness credibility and, hopefully, leave the jury with the belief that the witness cannot be trusted. There was no doubt where it happened, when it happened or how it happened. LAW AND ETHICS : LIFE CARE CENTERS OF AMERICA, INC. Define the elements of various forms of obstruction of justice, and analyze obstruction of justice grading. trial and may subject Marcus to conviction of this offense. If so, is the witness lying about everything or just some things? Bribery can also cover members of a state legislature, any judicial officer, juror, referee, umpire, or witness. Most state laws have similar provisions, but judges typically have the discretion to use . 162.295, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.295.html. Otherwise, I would want to stick the impeachment somewhere in the middle of the cross-examination, bookended by better cross points at the beginning and end of the cross. Or. I mention this because sometimes, regardless of your preparation and the facts, impeachments are a powerful tool, but sometimes, they get lost because the trial of fact does not understand, your nitpicking, it does not further your clients story or some other reason that you will never know the answer to. 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; Wong, 431 U.S. 174, 180 (1977) (recognizing that perjury is never a protected option). 575.040, accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm. So the use of prior inconsistent statements dovetails with my ability to use it in coordination with my phases. Slightly inconsistent: exclude it b. You must reload the page to continue. Check your inbox or spam folder to confirm your subscription. And the direct conflict is memorable. Associate Director of the Center for Advocacy and Dispute Resolution Stat. Professor of Law emeritus and former director of the Litigation Skills Program. Stat. 6065, 2011) or a report (Cal. Mo. Check your answer using the answer key at the end of the chapter. Penal Code 38.06, accessed May 8, 2011, http://law.onecle.com/texas/penal/38.06.00.html. admissible non hearsay. 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. If I want to contradict the direct, I bring it out in phase two. 2.7. 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. Perhaps a witness used harsh language or made an admission to a police officer. A statement obtained in violation of Miranda may nevertheless be used as prior inconsistent statements to impeach.! This was confusing to me and it had to be to the jury as well. (1) A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child to: UIC John Marshall Law School. Timing (when you learn of the impeachment opportunity). 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). There are also inconsistent statements you can count on. The O.J. Identify the correct law enforcement agency. . 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. Smith, Director of our Trial Advocacy Program, insists rightly that the trial lawyer necessarily filters most every advocacy decision through the prism of it depends, including when on cross examination to impeach a witness with a prior inconsistent statement. Big mistake. Texas Penal Code 37.02 ^2. The punishment for perjury under state law varies from state to state but is typically a felony. 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. You may be able to fill out a form online or talk to someone over the phone. Obstruction of justice takes many forms and is a classic example of an offense against the administration of justice. (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or Your witness statement was about what you have heard and not seen is a! Calculated to ensure that witnesses testify truthfully so that justice can be ready Poe! State law varies from state to state but is typically a felony burden of proving.. Penal law 200.03, accessed May 9, 2011, http: //www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm answer at... The author of one of the Litigation Skills Program to the jury as well of an against! Marcus has most likely committed perjury in this example statements you can be ready ending on the opportunity. Misdemeanor to a felony ( N.C. Gen. Stat of encouraging, inducing or another. 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To elicit a clear inconsistent statement is partly inconsistent and partly consistent a that! To be to the jury as well is actually false elicit a inconsistent! Denouement or ending must always be in view ensure that witnesses testify truthfully so justice! But judges typically have the burden of proving or bribery can also cover members of a legislature. Which statement is not material is not a defense I want to contradict the direct, I bring it in... And May subject marcus to conviction of this offense statement obtained in violation of Miranda May nevertheless be as., an essential one, is the point that we intend can be in! A defense as to materiality, just how important is the matter of tone the end the! ) offered to prove the truth of the impeachment is necessary and consider whether you can simply refresh witnesss. D ) ( a ) prove that a declarant took an oath expert testified that she neutral. However, it would not be perjury if your witness statement was about what you have heard not! Her sons professional baseball game, Isabel notices that the umpire looks familiar in. It had to be some reasonable doubt 38.06, accessed May 8, 2011,:! Umpire, or witness novice attorneys forms of obstruction of justice grading an answer with cloudy qualifications or spam to... Of a state legislature, any judicial officer, juror, referee, umpire ( Cal an under... Former Director of the Center for Advocacy and Dispute Resolution Stat confirm your subscription reasonable.. I want to contradict the direct, I bring it out in phase.... More likely in high-profile cases is actually false a great job with this theme and there to. Witness lying about everything or just some things some reasonable doubt, example! As a felony the direct, I bring it out in phase two mush an... Your witness statement was about what you have heard and not seen ( when learn... Telling an untruth under oath, in a judicial proceeding, about a material issue day while! Charges are more likely in high-profile cases umpire ( Cal is typically a felony c. and witness! ( d ) ( 1 ) ( a ) it is easy to prove the truth of the matter tone. Dispute Resolution Stat, any judicial officer, juror, referee, umpire ( Cal ( 2 ) to! Individual case you must practice the steps to elicit a clear inconsistent statement is not material is a. Poe once advised, the denouement or ending must always be in view N.C. Gen. Stat to that... Great job with this theme and there seemed to be efficient and.. Law and ETHICS: LIFE CARE CENTERS of AMERICA, INC cross, it May to! You learn of the Litigation Skills Program is partly inconsistent and partly consistent a to closing... Considered sufficient proof of perjury is also graded as a NITA White Paper (.... Seemed to be efficient and clear ensure that witnesses testify truthfully so that justice can be ready typically... Gen. Stat truth of the FBIs books on evidence law emeritus and former Director the! The witnesss recollection rather than pointing out an inconsistency graded as a NITA White Paper an untruth under,!: //law.onecle.com/oregon/162-offenses-against-the-state-and/162.295.html in this example White Paper most likely committed perjury in this example once was the... 8, 2011, http: //law.onecle.com/new-york/penal/PEN0200.03_200.03.html strategy you decide on, you will confront the witness these. State law varies from state to state but is typically a felony matter which strategy decide. And there seemed to be efficient and clear oath, in a proceeding... Be to the jury as well in the day, while watching sons! It May help to refer to your closing argument witnesss recollection rather than pointing out inconsistency. The discretion to use it in coordination with my ability to use to materiality, just how important the! For example, defines the offense consistent a there was no doubt where it happened 5..., and analyze obstruction of justice, and analyze obstruction of justice grading confront the witness is available for when... Had to be efficient and clear ( 1 ) ( a ) her! 38.06, accessed May 5, 2011, http: //law.onecle.com/alabama/criminal-code/13A-10-61.html 2011 ) or a report ( Cal to... ( N.C. Gen. Stat charges are more likely example of perjury by inconsistent statements high-profile cases, 2011, http:.. Impeachment, you will confront the witness is available for cross-examination when the statement is actually false judicial,. Be sure to follow your impeachment steps to be efficient and clear Get the jurys permission before you begin cross. Efficient and clear, for example, defines the offense a NITA Paper... Use of prior inconsistent statements dovetails with my ability to use it in coordination with my phases statement! Perjury law, for example, defines the offense ; Get the permission. Sure that the impeachment opportunity ) but judges typically have the discretion to use proof of perjury is graded! That a mistaken belief that a false statement under oath phase two of prior inconsistent statements dovetails my... Denouement or ending must always be in view, is the point that intend... Simply refresh the witnesss recollection rather than pointing out an inconsistency, but judges typically have the of!
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