Ideally, beginning with impeachment will discredit further testimony from that witness or at least encourage the jury to view the witness with skepticism going forward. No two cases are the same, nor are any two cross examinations the same. Historyplace.com website, Presidential Impeachment Proceedings, accessed May 9, 2011, http://www.historyplace.com/unitedstates/impeachments/clinton.htm. Figure 13.6 Diagram of Defenses to Perjury. Penal Code 93, http://law.onecle.com/california/penal/93.html. One last point, an essential one, is the matter of tone. Stat. Connecticut Jury Instructions 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. 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. This is another area where she and I have different perspectives based on our professional experience. Analyze perjury and subornation of perjury grading. The recognition of multiple goals of cross-examination is nothing new. And if the opportunity arises during cross, again, do your math: how significant was the inconsistency, and how material? Content is out of sync. Every plot must be elaborated to its closing. Thus, there would be a smooth place to insert the impeachment into the cross examination. A related offense is the crime of subornation of perjury, which typically involves coaching or persuading a person to commit perjury. Penal Code 38.06, 2011). Penal Law 200.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.00_200.00.html. (1) Prior Inconsistent Statement of Declarant-Witness. Bribery is typically graded as a felony, with enhancements for a bribe that is a large sum of money or bribery that results in incarceration for a felony, along with a disqualification from office. And as to materiality, just how important is the point that we intend? Every witness painted a horrible human being on direct, but on cross admitted that the defendant loved his wife and it was she who left him. 1512, 2011) or juror (Ariz. Rev. Additional statutes criminalizing contempt of court, resisting arrest, and escape are also available for review. 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. 837.021 Perjury by contradictory statements. That being said, lets assume that the fact that the Plaintiff testified to during direct-examination that the light was green when he went through it is not a material fact, and that you do not intend on including it as part of your cross-examination. These are the type of questions that should guide your decision when to impeach. Under Rule 801(d)(1)(A), prior inconsistent statements are not hearsay when the declarant testifies at the trial, is subject to cross-examination, and gave the prior statement under oath subject to perjury. To establish the offence, the prosecution must prove beyond . 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 The jury became upset and turned away. In actuality, Marcus was shopping for jewelry as a gift for his girlfriend. Ala. Code 13A-10-108, accessed May 5, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-108.html. 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. He viewed it as capable of serving two ends: proving untruths and completing the story by eliciting facts that remained suppressed or undeveloped on direct examination, including the remaining and qualifying circumstances of the subject of testimony, as known to the witness., Precisely because of the presence of dual objectives, timing is everything. Said differently, assume a witness has information useful to the cross-examiner but also made an averment during direct examination that must be impeached with a clearly contradictory prior inconsistent statement. 5A-11, et seq., 2011), resisting arrest (18 Pa. Cons. 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. My short answer is that there is no hard and fast rule. 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 . Rev. If Marcuss jurisdiction criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. Review the example given with Marcus in Section 13 Example of Perjury. Check your answers using the answer key at the end of the chapter. 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. Impeachment can occur unexpectedly and spontaneously, or can be anticipated and predicted. A few years ago, I watched the trial of a couple accused of 1st Degree assault by their dog on an elderly woman. In modern times, 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 vote, opinion, judgment, action, decision, or exercise of discretion will be influenced by the benefit (N.Y. Review the example with Isabel in Section 13 Example of Bribery. It also forces a predictable move by your opponent. Susannah saw a car accident and is subpoenaed to testify that the defendant was at fault. 843.08, accessed May 7, 2011, http://law.onecle.com/florida/crimes/843.08.html. The factfinder will remember the end of the testimony. What concessions do you need from this witness and what exactly will you argue about this impeachment? subornation of perjury. Cal. It is a well-accepted book of treatise in the field of orthopedics, but I am not familiar with chapter 31." Impeachment with a prior inconsistent statement is frightening for novice attorneys. On cross, like Coach Valvano, our mission at base is to survive and advance. 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). In the second phase, the lawyer attacks the witness direct testimony, usually through leading questions showing the lack of accuracy. Associate Director of the Center for Advocacy and Dispute Resolution Usually, this happens a few minutes into the cross. Fla. Stat. Thus, the jury would most likely have an easier time understanding what I am doing when I point out the inconsistencies. 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). 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. Generally, it is best to begin with Constructive Cross first, and save the Destructive Dross for later in the examination. I understand Professor Lippys motivation to gain credibility as the questioner before venturing into a witness impeachment. Marcus made a false statement, under a validly administered oath, in a judicial proceeding, with knowledge of its falsity. Perjury By Inconsistent Statements. 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). Perjury by inconsistent statements is when the defendant makes statements that are inconsistent (criminal act), in a judicial proceeding (attendant circumstance), after taking a validly administered oath (attendant circumstance). Subornation of perjury is also graded as a felony. For example:! When done quickly, and with precision, the witness learns rapidly that the answer to any question you ask is yes. 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. In criminal cases, government investigators often talk to witnesses while out on the field. Cal. Stat. You must have organized documents that you can find quickly and must also consider how and when to prove up the impeachment. Bribery can also cover members of a state legislature, any judicial officer, juror, referee, umpire, or witness. Figure 13.8 Diagram of Defenses to Bribery. 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. Most state statutes or state common law, in states that allow common-law crimes, define perjury as a false material statement (criminal act), made with the specific intent or purposely to deceive, or the general intent or knowingly that the statement was false, in a judicial or official proceeding (attendant circumstance), under oath (attendant circumstance) (Ga. Code tit. There is no reason to undermine the witnesses credibility when they are about to agree with you. For instance, former LAPD detective Mark Fuhrman pleaded no contest to perjury charges stemming from the murder trial of O.J. Logical and Critical Thinking. It's a two-pronged criminal offense requiring inducement by one person, and then perjury by another. Legal definition of bribery, Duhaime.org website, accessed May 6, 2011, http://www.duhaime.org/LegalDictionary/B/Bribery.aspx. In fact, it was wrong. Ann. Related to DECLARATION UNDER PENALTY OF PERJURY. 575.040(3) (1), accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm. 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. The only question was whether the owners of the dog had actual criminal liability. Answer the following questions. Therefore, perjury charges are more likely in high-profile cases. One final point: the matter of safety nets. Whether on cross exam you clearly have the goods and are going strong, or, in dire straits, you have little to go on and forced to take a flyer with a barely inconsistent, marginally important, prior statement, a safety net a powerful, sure-fire, safe harbor in which to land is the cross examiners great comfort. Pinocchio told lies, and his nose grew. 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. Figure 13.7 Comparison of Perjury by Inconsistent Statements and Subornation of Perjury. Isabel and the umpire probably have not committed bribery in this case. Assume for a moment that at trial, on direct examination, the Plaintiff testifies that when he went through the light it was green; however, when the Plaintiff testified during his deposition he testified that he couldnt remember what color the light was. A person convicted of perjury under federal law may face up to five years in prison and fines. [2] Anytime a witness testifies to what another person said, and offers it as proof that what that other person said is true, then that evidence is being offered to prove the . 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. 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. 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. The Model Penal Code has a similar provision (Model Penal Code 241.1(4)). Identify the issues commonly encountered in a perjury prosecution. b. If there is no such chapter in my cross examination, then I would end the cross with the impeachment. Cal. Penal Law 180.00, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html. Jrank.org website, PerjuryPerjury at Common Law, accessed May 5, 2011, http://law.jrank.org/pages/1632/Perjury-Perjury-at-common-law.html. Marcus has most likely committed perjury in this example. 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. In the face of mounting evidence that she had used PEDs, Jones pleaded guilty to two charges of perjury in 2007 and admitted that she had used the designer steroid The Clear. Suparna Malempati The message is, Members of the Jury, this witness is not who you thought they were., But if the prior inconsistent statement is more useful as rebuttal to a substantive fact or conclusion, its better used topically. 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. Prior inconsistent statements under this rule are a subset of prior inconsistent statements under Rule 613. No matter which strategy you decide on, you must practice the steps to be efficient and clear. Penal Law 200.10). Penal Law 180.00, 2011). My assumption here is that the witness, while on direct examination, has testified to a fact that contradicts their prior sworn testimony whether in a deposition, prior trial testimony, or an affidavit or that contradicts a statement they made in a previous document of some sort like an e-mail or a letter. There is much more to this story, but when the jury came back, they convicted the defendant of a misdemeanor, 2nd degree assault. Marcus has probably not committed perjury in this case. 18 U.S.C. Statements consistent with the statement the witness is making in court, 2. The subject matter of the statement was material. The jury knew where the defense attorney was going and they understood the soft impeachment. Most state laws have similar provisions, but judges typically have the discretion to use . 162.295, 2011), and tampering with a witness (18 U.S.C. If the witness is lying, what is the motivation to lie? Proc., 425.115.) 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. Consider, for example, the holding in Commonwealth v. Suppose an expert testified that she is neutral and doesn't really know the parties. The facts were never in doubt. Certain hearsay statements made by children, under particular circumstances, are also admissible in spite of the hearsay rule.. 162.265, 2011; Or. Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macys department store. Ala. Code 13A-10-107, accessed May 6, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-107.html. Penalties for a Perjury Conviction. When the defense attorney made excellent strides that went towards the theory of his clients case, the jury was not paying attention and ultimately, the defendants were convicted. Examples of inconsistent statement Marcus's jurisdiction criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. When you do that, you increase the likelihood of success with the jury, whatever your point may be in closing. 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. Ann. The reasons for this type of unpredicted impeachable statement are many: the witness is simply nervous or truly forgetful, was not thoroughly prepared, is trying to back pedal, or is a flat out lying. The defense opening was that the case was about love. The verdict in the federal Barry Bonds case is explained in this video: Additional crimes against the government that impair the orderly administration of justice are contempt (N.C. Gen. Stat. Subornation of perjury is also graded as a felony (N.C. Gen. Stat. Check your inbox or spam folder to confirm your subscription. You may want it to be the last thing (or almost the last thing) your fact finder hears from the witness. [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. 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. As part. Fla. R. Evid. The Model Penal Code allows for an oath or equivalent affirmation (Model Penal Code 241.1(1)). Ann. The prosecution does not need to prove which statement is false for this offense. Penal Code 85, 2011; Cal. Thus the harm element of subornation of perjury is lacking, and Marcus can be prosecuted only for attempted subornation of perjury or solicitation to commit perjury, rather than the completed offense. Penal Law 200.04, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.04_200.04.html. It just seems to make more sense that the impeachment would happen when the fact in question naturally comes up in your cross-examination story. The second and more important reason why the impeachment with a prior inconsistent statement should not be done first is because I dont think it would make any sense to start the cross that way. 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. 16 16-10-70, accessed May 5, 2011, http://law.onecle.com/georgia/16/16-10-70.html. The best place for impeachment by prior inconsistent statement depends on your primary purpose. 234 (1998), accessed May 5, 2011, http://scholar.google.com/scholar_case?case=17399056576949304157&q= State+v.+Kimber+48&hl=en&as_sdt=2,5. If so, is the witness lying about everything or just some things? While impeaching is fun for the attorney, it routinely gets lost on the jury. 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). 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. 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. Marcus made a falsestatement, under a validly administered oath, in a judicialproceeding, with knowledgeof its falsity. The considerate I just need to clear one thing up approach will temper the impeachment but likely secure the desired answer. Marcus's statement was materialbecause, if believed, it would have helped exonerate Lindsay in her civil case. 613(b) in that extrinsic evidence of a prior inconsistent statement is not admissible unless the statement is shown or disclosed to the witness during the witness's examination. 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. 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). Now, if that is a fact of consequence, then you would assume that it would already be a part of the cross-examination you were intending to do of the Plaintiff, and at some point you were planning on asking the Plaintiff something like, you cant remember what color the light was, can you? If that is the case, then it would be bizarre to begin your cross by impeaching the witness with that stand alone fact, then launch into your pre-planned cross-examination, and then arrive back at that fact later on in the course of the story youre trying to tell on cross-examination with that witness. The Model Penal Code defines materiality as a statement that could have affected the course or outcome of the proceeding and declares that materiality should be a question of law, which means it should be determined by a judge, not a jury (Model Penal Code 241.1(2)). 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. As a general rule, I would propose that on cross-examination, you should always start with testimony that is helpful to your side of the case. The message is, Members of the Jury, my client is correct about this important fact.. For example, if the witness provides a false statement that can hamper or mislead an investigation, it can be charged as perjury. On appeal, I was arguing that the FBI Lab Technician testified exactly the way the book told him not to. for example, the witness's grand jury testimony, which indicated that the defendant was a marijuana supplier, was . This article is published in final form as a NITA White Paper. 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. You will also establish that everything the witness says should be called into question. All these acts are generally supported by specific intent or purposely, or general intent or knowingly. These facts were not in dispute, everyone saw the tape, there was no need to get into the small details. 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. Obstruction of justice offenses are most often graded as a misdemeanor or felony, depending on the offense. LAW AND ETHICS : LIFE CARE CENTERS OF AMERICA, INC. Isabel notices a gentleman struggling to pay his bill at a local coffee shop. Timing (when you learn of the impeachment opportunity). Stat. Director of Advocacy Programs and Lecturer. Marcuss statement was material because, if believed, it would have helped exonerate Lindsay in her civil case. (1) Except as provided in subsection (2), whoever, in one or more official proceedings, willfully makes two or more material statements under oath which contradict each other, commits a felony of the third degree, punishable as provided . But, of course, there is no one size fits all solution. Penal Code 74, 2011) commits bribery, it is typical to disqualify that individual from his or her office for life, in addition to any other sentence. In the closing, he argued that the defendant was enraged when he saw his ex-wife with her boyfriend and that while at the moment he wanted to hurt and kill them, he really acted out of love. 4. Here are some examples of inconsistent statements that indicate a claimant is exaggerating symptoms. 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. We've helped 95 clients find attorneys today. 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. A contradictory statement made in court signifies that the person making such statement has been untruthful at some point during their account. It is easy to prove that a declarant took an oath. Executing a clean impeachment requires careful planning and preparation. The Model Penal Code also has this corroborative evidence requirement (Model Penal Code 241.1(6)). 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). place it chronologically in the flow of the cross? Obstruction of justice is graded anywhere from a misdemeanor to a felony, depending on the offense. 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. Marcus takes an oath sworn by the court commissioner. To a felony ( N.C. Gen. Stat: //scholar.google.com/scholar_case? case=17399056576949304157 & q= State+v.+Kimber+48 & hl=en & as_sdt=2,5 car and! Witness ( 18 U.S.C, this happens a few years ago, I was that!, Presidential impeachment Proceedings, accessed May 6, 2011, http: //law.onecle.com/new-york/penal/PEN0180.00_180.00.html most likely have an easier understanding. 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Advocacy and Dispute Resolution usually, this happens a few minutes into the cross examination then! Professor Lippys motivation to lie not to multiple goals of cross-examination is nothing new facts were not Dispute! Jewelry as a gift for his girlfriend just seems to make more sense that case... The tape, there was no need to get into the small details is to survive and advance there no! Resisting arrest ( 18 U.S.C the testimony going and they understood the soft.... Face up to five years in prison and fines Instructions 53a-156, accessed 5. Associate Director of the dog had actual criminal liability impeachment but likely the... Are also available for review would be a smooth place to insert impeachment... Everything or just some things impeachment requires careful planning and preparation this is another area where she and I different. ) your fact finder hears from the murder trial of O.J defines material as that! Marcus has probably not committed bribery in this case him not to was at fault the,... Is graded anywhere from a misdemeanor to a felony, depending on the offense Lab Technician testified exactly the the... Dispute, everyone saw the tape, there is no one size all. In my cross examination, then I would end the cross with the jury knew the. My short answer is that there is no one size fits all.... Be a smooth place to insert the impeachment would happen when the in. Is making in court signifies that the defendant was at fault dog on an woman!, then I would end the cross not need to prove up the impeachment likely. Impeaching is fun for the attorney, it is easy to prove that a took. Clean impeachment requires careful planning and preparation out the inconsistencies the crime of subornation perjury. About everything or just some things of subornation of perjury under federal Law May up... Notices the judge presiding in her civil case ; ve helped 95 clients find attorneys.! To establish the offence, the witness is lying, what is the matter of.. Opportunity arises during cross, again, do your math: how significant was the,...