Rev. Answer the following questions. 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. In this video, President Clinton denies that he had sexual relations with Monica Lewinsky: President Clinton Apologizes to the Nation. An act of committing such a crime. The defense opening was that the case was about love. Marcuss statement was material because, if believed, it would have helped exonerate Lindsay in her civil case. 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. 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. that the first statement was false, which will simplify and expedite the 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. Define the elements of various forms of obstruction of justice, and analyze obstruction of justice grading. This would be considered sufficient proof of perjury, even without knowing which statement is actually false. The only question was whether the owners of the dog had actual criminal liability. Thus, as a practitioner, one needs to make the right choice based on the circumstances of the case. Figure 13.9 Diagram of Perjury, Bribery, and Obstruction of Justice. N.C. Gen. Stat. Stat. Attorneys and other people who might advise a witness may be targets of subornation of perjury accusations. After the deposition, he was involved in an effort to get Ms. Lewinsky a federal job outside Washington, DC (Historyplace.com, 2011). A hearsay statement that a witness disliked the defendant may be admitted to show the witness's bias. This definition was also incorporated into early American common law (Jrank.org, 2011). Cal. In that trial is competitive storyshowing in context, H.T. If Marcuss jurisdiction criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. The best place for impeachment by prior inconsistent statement depends on your primary purpose. For instance, former LAPD detective Mark Fuhrman pleaded no contest to perjury charges stemming from the murder trial of O.J. 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. ], Director of A. Barry Cappello Program in Trial Advocacy, The best place for impeachment by prior inconsistent statement depends on your primary purpose. Out-of-court statements in cases involving sex crimes against childrensuch as Penal Code 261 PC rape of a child, Penal Code 285 PC incest against a child, and Penal Code 288 PC lewd acts with a childare . subornation of perjury. Prepare hard, be confident, listen well, and trust yourself, and youll do just fine. In the second phase, the lawyer attacks the witness direct testimony, usually through leading questions showing the lack of accuracy. There, it usually is best to structure your cross so that the impeachment comes toward the end of the cross. 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. Penal Code 93, http://law.onecle.com/california/penal/93.html. I have a few rules about impeachment that I treat as the first step in determining when or if I should impeach: I enjoy going to court and watching juries. Although the judge did not accept Isabels gift, most states criminalize as bribery the offer of any benefit, so the act of bribery is complete when Isabel proffers the watch. Penal Code 38.06, accessed May 8, 2011, http://law.onecle.com/texas/penal/38.06.00.html. 16, 16-10-70, 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. 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. 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. Weiler, 323 U.S. at 610. 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. If so, you may not want to start with the impeachment because it will color everything else the witness says. In most cases, if you want to report perjury you can start with your state's district attorney's office. 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. Define perjury by inconsistent statements and subornation of perjury. 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. Director of Advocacy Programs and Lecturer. The attention span of individuals is very short. 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. We had an evidentiary hearing with the author of the book on the stand. LAW AND ETHICS : LIFE CARE CENTERS OF AMERICA, INC. As part. 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. Chapter 837 PERJURY 837.021 Perjury by contradictory statements. 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)). At the trial the prosecution need not prove which statement is false." ^3. And if the opportunity arises during cross, again, do your math: how significant was the inconsistency, and how material? . Subdivision (d)(1)(A). 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). This article is published in final form as a NITA White Paper. Or. Gearan, A., Clinton Disbarred by Supreme Court, Famguardian.org website, accessed May 9, 2011, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm. 13-2807, 2011). And who doesnt love the twist ending? The exception here may be if two conditions are met the testimony will be branded a mistake rather than a lie and there are so many positive points to elicit from this witness that an initial attack will sound discordant. When an inconsistent statement is elicited on cross-examination, I recommend impeaching the witness right then and there. There is no reason to undermine the witnesses credibility when they are about to agree with you. Jrank.org website, PerjuryPerjury at Common Law, accessed May 5, 2011, http://law.jrank.org/pages/1632/Perjury-Perjury-at-common-law.html. I was in the middle of my cross and I was clearly leading up to the impeachment when the judge stopped the questioning and would not allow me to continue. The Model Penal Code also has this corroborative evidence requirement (Model Penal Code 241.1(6)). At the end of cross examination (unlike the very beginning), I would have also gained credibility as the questioner. 1512, 2011) or juror (Ariz. Rev. Identify the statements you believe to be perjury. 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. Stat. Penal Law 200.03, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.03_200.03.html. The factfinder will remember the end of the testimony. Statements consistent with the statement the witness is making in court, 2. Cal. The first common-law prohibition against witness perjury criminalized false testimony, given under oath, in a judicial proceeding, about a material issue. And the direct conflict is memorable. You must consider strategic and psychological factors in making your decision. 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. Review the statutes in the endnotes for common elements and grading of these offenses. The first step is always to decide what you will argue in closing about the witness. Proc., 425.115.) 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. The defense was doing a great job with this theme and there seemed to be some reasonable doubt. 2011] CONVICTIONS BASED ON LIES 335 presented false testimony calls into question the value of all the testimony given by the lying witness. Macur, J., Bonds Guilty of Obstruction, but Not of Perjury, New York Times website, accessed May 8, 2011, http://www.nytimes.com/2011/04/14/sports/baseball/14bonds.html?pagewanted=1&_r=1. If known to members of the prosecution team, it casts doubt on the honesty of the entire case. The prosecutor called a neighbor to the stand who was also elderly and did not have all of the facts exactly right. Check your answers using the answer key at the end of the chapter. The jury became upset and turned away. Connecticut Jury Instructions 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. However, it is necessary to lay a proper predicate in order to introduce that testimony. If you need the jury to hear a few points from the witness that are helpful to your case first, then save the impeachment for later in the cross-examination. 1621, 2011). Example: lawyer Frank Foghorn is interviewing a witness in an accident case who tells Foghorn that Foghorn's client was jaywalking outside the crosswalk when struck by the defendant's . Figure 13.6 Diagram of Defenses to Perjury. Ann. That being said, I rarely begin a cross examination with an impeachment. The O.J. 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). Stat. criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. In closing about the witness Bribery, and youll do just fine,... Could most likely be prosecuted for this offense no contest to perjury charges stemming from the trial! 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