Penal Code 38.06, 2011). Cal. Impeachment is the art of attacking a testifying witness's credibility or truthfulness at trial. Federal law defines two types of perjury, each of which has multiple elements. ], Director of A. Barry Cappello Program in Trial Advocacy, The best place for impeachment by prior inconsistent statement depends on your primary purpose. 575.040(3), 2011). The O.J. 67 162.275, 2011) when a bribe is conferred or offered, asked for, received, or agreed to be received to influence their vote or decision. 1621, accessed May 5, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001621-000-.html. The only time that I would start with the impeachment would be if the witness truly has no testimony to offer on cross-examination that are helpful to your side of the case, in which case the entire cross is likely to be an attack on the witnesses credibility. As another example, if a defendant employer testified that he cared a great deal about employee safety, but he had previously made had contradictory statements, I would start the cross there. Section 13 Example of a Case Lacking an Element of Perjury, perjury by inconsistent or contradictory statements, http://scholar.google.com/scholar_case?case=14705028387089517508&q= %22State+v.+Carr%22&hl=en&as_sdt=2,5, http://scholar.google.com/scholar_case?case=3089258849772766127&q= %22witness+tampering%22&hl=en&as_sdt=4,33&as_ylo=2003, http://law.onecle.com/alabama/criminal-code/13A-10-104.html, http://law.onecle.com/alabama/criminal-code/13A-10-107.html, http://law.onecle.com/alabama/criminal-code/13A-10-108.html, http://law.onecle.com/alabama/criminal-code/13A-10-61.html, http://law.onecle.com/arizona/criminal-code/13-2807.html, http://law.onecle.com/california/penal/129.html, http://law.onecle.com/california/penal/74.html, http://law.onecle.com/california/penal/85.html, http://law.onecle.com/california/penal/86.html, http://law.onecle.com/california/penal/88.html, http://law.onecle.com/california/penal/92.html, http://law.onecle.com/california/penal/93.html, http://www.law.cornell.edu/supct/html/95-1853.ZS.html, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm, http://www.historyplace.com/unitedstates/impeachments/jones-deposition.htm, http://law.onecle.com/florida/crimes/843.08.html, http://law.onecle.com/georgia/16/16-10-70.html, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm, http://www.historyplace.com/unitedstates/impeachments/clinton.htm, http://law.jrank.org/pages/1632/Perjury-Perjury-at-common-law.html, http://www.duhaime.org/LegalDictionary/B/Bribery.aspx, http://www.nytimes.com/2011/04/14/sports/baseball/14bonds.html?pagewanted=1&_r=1, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm, http://law.onecle.com/north-carolina/14-criminal-law/14-209.html, http://law.onecle.com/north-carolina/14-criminal-law/14-210.html, http://law.onecle.com/north-carolina/5a-contempt/index.html, http://law.onecle.com/new-york/penal/PEN0180.00_180.00.html, http://law.onecle.com/new-york/penal/PEN0195.10_195.10.html, http://law.onecle.com/new-york/penal/PEN0200.00_200.00.html, http://law.onecle.com/new-york/penal/PEN0200.03_200.03.html, http://law.onecle.com/new-york/penal/PEN0200.04_200.04.html, http://law.onecle.com/new-york/penal/PEN0200.10_200.10.html, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.265.html, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.295.html, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.275.html, http://www.usatoday.com/sports/baseball/2011-04-13-verdict-barry-bonds-guilty_N.htm, http://scholar.google.com/scholar_case?case=17399056576949304157&q= State+v.+Kimber+48&hl=en&as_sdt=2,5, http://law.onecle.com/texas/criminal-procedure/38.18.00.html, http://law.onecle.com/texas/penal/38.06.00.html, http://scholar.google.com/scholar_case?case=189694239263939940&hl=en&as_sdt=2&as_vis=1&oi=scholarr, http://scholar.google.com/scholar_case?case=12281686524757008977&hl=en&as_sdt=2&as_vis=1&oi=scholarr, http://law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001621-000-.html, http://www.law.cornell.edu/uscode/26/usc_sec_26_00006065-000-.html, http://law.onecle.com/pennsylvania/judiciary-and-judicial-procedure/00.059.001.000.html, http://law.onecle.com/illinois/720ilcs5/31-4.html, http://law.onecle.com/illinois/720ilcs5/31-4.5.html, CC BY-NC-SA: Attribution-NonCommercial-ShareAlike. Texas Penal Code 37.02 ^2. State v. Kimber, 48 Conn. App. Stat. Stat. In other words, the impeachment did not work because the attorney focused on the impeachment, instead of focusing on the theory of his case. I like to predict the outcomes based on the reactions of the jury and I have a pretty good track record of predicting outcomes. Clinton v. Jones, 520 U.S. 681 (1997), accessed May 9, 2011, http://www.law.cornell.edu/supct/html/95-1853.ZS.html. n. the crime of encouraging, inducing or assisting another in the commission of perjury, which is knowingly telling an untruth under oath. 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. 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. 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. Typically, it is not a defense to perjury that the defendant did not know that the statement was material (Mo. N.Y. Although Isabel gave the umpire money, and he was the decision maker in her sons baseball game, Isabel did not give the money, nor did the umpire accept it, with the specific intent or purposely or general intent or knowingly to enter into an agreement influencing the umpires decisions. Penal Code 92, accessed May 6, 2011, http://law.onecle.com/california/penal/92.html. Change this example so that Marcus testifies that he did not see Lindsay walk out of the Macys department store without paying for the necklace because he does not want to admit that he was shopping for jewelry to buy his girlfriend. Check your inbox or spam folder to confirm your subscription. 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. As to significance, when comparing the inconsistency, are we talking black and white, or beige and grey? No two cases are the same, nor are any two cross examinations the same. Analyze perjury and subornation of perjury grading. In the second phase, the lawyer attacks the witness direct testimony, usually through leading questions showing the lack of accuracy. Penal Law 195.10, accessed May 7, 2011, http://law.onecle.com/new-york/penal/PEN0195.10_195.10.html. Jurors, like all of us, are best at understanding ideas if they only need to understand one idea at a time. 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. 613(b) differs from F.R.E. 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. When an inconsistent statement is elicited on cross-examination, I recommend impeaching the witness right then and there. And the direct conflict is memorable. Add to this example and assume that the judge graciously accepts Isabels gift and thereafter rules in her favor, acquitting her of perjury. Cal. Here are some examples of inconsistent statements that indicate a claimant is exaggerating symptoms. Testimony full of perjuries. Stat. c. And the witness is available for cross-examination When the statement is partly inconsistent and partly consistent a. We've helped 95 clients find attorneys today. Attorneys and other people who might advise a witness may be targets of subornation of perjury accusations. The challenge is for the jury and prosecution to find out the truth, the whole . Penal Law 200.00, 2011; N.Y. Thus, the jury would most likely have an easier time understanding what I am doing when I point out the inconsistencies. 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. Two surviving victims gave gruesome details of the many hours of torture and the steps the defendant took to set up their deaths. Even under oath, if the witness lies concerning an immaterial subject that is irrelevant to the proceeding, it's not classified as perjury. Perhaps a witness used harsh language or made an admission to a police officer. Is the witness lying? Consider, for example, the holding in Commonwealth v. When done quickly, and with precision, the witness learns rapidly that the answer to any question you ask is yes. All these acts are generally supported by specific intent or purposely or general intent or knowingly. The prior statement was given under oath in a procedure under penalty of perjury (trial, hearing deposition etc.) Examples of inconsistent statement Marcus's jurisdiction criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. 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. It also forces a predictable move by your opponent. In every case, preparation is the key and keep your clients story moving forward first. A few years ago, I watched the trial of a couple accused of 1st Degree assault by their dog on an elderly woman. 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. Timing (when you learn of the impeachment opportunity). Isabel and the umpire probably have not committed bribery in this case. 14-209, accessed May 6, 2011, http://law.onecle.com/north-carolina/14-criminal-law/14-209.html. Cal. You must keep your cool and not tip off the witness. 843.08, 2011), refusing to aid a law enforcement officer when requested (N.Y. That being said, I may delay impeaching a witness when there is helpful or affirmative information to be gained during cross-examination. My best laid plan did not materialize when I needed it to the most, but because the impeachment attempt was clear, the appeals court understood and we ultimately won freedom for an innocent man wrongfully accused of a crime he did not commit. It, 4too, is a federal crime if the perjury induced is a federal crime. Mo. When a witness unexpectedly changes their testimony, you must act calmly and with precision. Hancock v. Penal Law 200.03, accessed May 6, 2011, http://law.onecle.com/new-york/penal/PEN0200.03_200.03.html. Because you have them on record, already. Identify the statements you believe to be perjury. The Supreme Court has held that materiality is a question of fact for the jury. If the opportunity arises while the witness is on direct, do your math, and lest you have an idea for a stronger placement, consider using it to begin your cross, and then transition into what you had intended all along, circling back for emphasis, as appropriate. 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. Thus modern laws of perjury are calculated to ensure that witnesses testify truthfully so that justice can be done in each individual case. Every plot must be elaborated to its closing. Simpson. 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 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. Check your answers using the answer key at the end of the chapter. I once was crossing the author of one of the FBIs books on evidence. I understand Professor Lippys motivation to gain credibility as the questioner before venturing into a witness impeachment. 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. Not a second longer. Penal Law 295.10, 2011), giving false evidence (720 ILCS 5/31-4, 2011), hiding or concealing oneself and refusing to give evidence (720 ILCS 5/31-4, 2011), tampering with evidence (Or. No matter which strategy you decide on, you must practice the steps to be efficient and clear. Aggravated perjury is a third-degree felony, which is punishable by 2 to 10 years in prison and a $10,000 fine. This would be considered sufficient proof of perjury, even without knowing which statement is actually false. 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. 16 16-10-70, accessed May 5, 2011, http://law.onecle.com/georgia/16/16-10-70.html. It also might make sense to tie the statement to where it fell chronologically within the case. If you watch your jury, the opposing counsel may ask questions that leave the jury questioning what they just heard, if so, start the cross with an impeachment. Ann. 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. Clinton: I did not have sexual relations with that woman. Everything was caught on video. 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. (Code Civ. The best place for impeachment by prior inconsistent statement depends on your primary purpose. 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. , nor are any two cross examinations the same, nor are any two examinations! Statement depends on your primary purpose done in each individual case with that woman to this example assume! Thereafter rules in her favor, acquitting her of perjury accusations where it fell chronologically within the case in... And clear of predicting outcomes tie the statement was material ( Mo, 4too, is a federal crime language. Statement depends on your primary purpose of torture and the umpire probably have not committed bribery in case. 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