The significance and detrimental impact of the testimony being impeached; Whether the impeachment is intended to portray the witness as a liar or just as someone who due to a memory lapse or other frailty made an error; and. Executing a clean impeachment requires careful planning and preparation. I understand Professor Lippys motivation to gain credibility as the questioner before venturing into a witness impeachment. UIC John Marshall Law School. 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. 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. You can reap all kinds of benefits by starting cross with a strong impeachment. Ann. A hearsay statement that a witness disliked the defendant may be admitted to show the witness's bias. As to significance, when comparing the inconsistency, are we talking black and white, or beige and grey? Penal Law 180.00, 2011). Penal Law 200.10, http://law.onecle.com/new-york/penal/PEN0200.10_200.10.html. Retraction as a Defense. Penal Code 85, 2011; Cal. The biggest issues commonly encountered in any perjury prosecution are proving the validity of the oath, the defendants criminal intent, the materiality of the false statement, and any requirement of corroborative evidence. Thus all the elements of perjury appear to be present, and Marcus may be subject to prosecution for and conviction of this offense. (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: Ann. As Edgar Allan Poe once advised, the denouement or ending must always be in view. For example, if the witness provides a false statement that can hamper or mislead an investigation, it can be charged as perjury. 1512, accessed May 7, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html. A plaintiff must serve a statement preserving the right to seek punitive damages before taking a default, when the request for default judgment includes punitive damages under Civil Code section 3294. I like to predict the outcomes based on the reactions of the jury and I have a pretty good track record of predicting outcomes. 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. In every trial attorneys arsenal of weapons, the impeachment by prior inconsistent statement is one of the most powerful. 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. To this day, I do not know why this happened. 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. N.Y. Perhaps you wait until later in the cross to impeach. What is perjury is not an issue; instead, why you commit the crime is big. Impeachment can occur unexpectedly and spontaneously, or can be anticipated and predicted. 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. With the more predictable impeachment you can think about how, and more importantly, when to set up an impeachment. Approach every cross-examination as a surgeon approaches an operation methodically, deliberately, and with precision. Penal Code 88, 2011) or a public official (Cal. 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. When a state legislator (Cal. The Model Penal Code allows for an oath or equivalent affirmation (Model Penal Code 241.1(1)). 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. A sworn declaration (also called a sworn statement or a statement under penalty of perjury) is a document that recites facts pertinent to a legal proceeding.It is very similar to an affidavit but is not witnessed and sealed by an official such as a notary public.Instead, the person making the declaration signs a separate endorsement paragraph at the end of the document, stating that the . Later in the day, while watching her sons professional baseball game, Isabel notices that the umpire looks familiar. 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. This is another area where she and I have different perspectives based on our professional experience. Isabel and the umpire probably have not committed bribery in this case. 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. 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. 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. Code of Criminal Procedure, 38.18, 2011). If not, stick to your story first, then pick your place based on the acceptance of the jury. Stat. Penal Law 200.03, 2011) or bribery that results in someones prosecution or incarceration for a felony (N.Y. The jury knew where the defense attorney was going and they understood the soft impeachment. Associate Director of the Center for Advocacy and Dispute Resolution This section analyzes perjury, bribery, and obstruction of justice, along with the issues commonly encountered when prosecuting these offenses. Thus modern laws of perjury are calculated to ensure that witnesses testify truthfully so that justice can be done in each individual case. Aggravated perjury is a third-degree felony, which is punishable by 2 to 10 years in prison and a $10,000 fine. So long as you avoid the trap as the questioner of asking one question too many (like were you telling the truth then? However, it would not be perjury if your witness statement was about what you have heard and not seen. I am a believer that every witness provided by the opposing counsel can advance the theory of my case. 162.275, accessed May 7, 2011, http://law.onecle.com/oregon/162-offenses-against-the-state-and/162.275.html. (1) Prior Inconsistent Statement of Declarant-Witness. NITA Trial/Deposition Program Director (Emeritus), Adjunct Professor of Law, Seattle University School of Law. In most US jurisdictions, the two-witness rule is used to discover whether the accused has committed such a crime. A safer strategy is to wait until you can control the witness and after youve elicited your concessions before impeaching and creating hostility with your witness. Most jurisdictions criminalize subornation of perjury, which is typically 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 in fact committed (N.C. Gen. Stat. Assuming that is the case, then I would almost never start the cross-examination with the impeachment with that prior inconsistent statement for two reasons. 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. Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macys department store. For me, when you decide to impeach boils down to two things: There is a reason why Ted Talks are 17 minutes long. Penal Code 74, accessed May 7, 2011, http://law.onecle.com/california/penal/74.html. Ariz. Rev. Accordingly, it is necessary to include materiality as an element of the offense in this instruction. 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. 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. 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. Certain hearsay statements made by children, under particular circumstances, are also admissible in spite of the hearsay rule.. Significant inconsistent: include only the inconsistent portion be introduced Silence does not count as inconsistency A . Fla. Stat. Isabel thereafter buys an expensive watch, has it wrapped, walks up to the judge, and offers it to him as a gift. Pinocchio told lies, and his nose grew. In many jurisdictions, the trier of fact, which could be a judge or jury, determines whether or not the statement is material. Perjury is generally graded as a felony (N.C. Gen. Stat. If the witness denies the statement, you impeach. 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. The prior statement was given under oath in a procedure under penalty of perjury (trial, hearing deposition etc.) The O.J. Perjury By Inconsistent Statements. Or. Fla. R. Evid. Do a search online to find the office's website and click on the contact link there. This would be considered sufficient proof of perjury, even without knowing which statement is actually false. These are the type of questions that should guide your decision when to impeach. 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. 2.7. criminalizes perjury by inconsistent statements, Marcus could most likely be prosecuted for this offense. 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). N.C. Gen. Stat. Stat. Impeachment with a prior inconsistent statement tends to have a negative impact on any rapport established with the witness. And as to materiality, just how important is the point that we intend? 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). Here are some examples of inconsistent statements that indicate a claimant is exaggerating symptoms. 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). Rev. Sex crimes against children. Penalties for Perjury. Analyze perjury and subornation of perjury grading. 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. Everything that guy just said is B. 4. 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. Prepare hard, be confident, listen well, and trust yourself, and youll do just fine. 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. Ann. If it is a collateral matter, how much attention do you want to draw to the inconsistency? 1621.) As for timing, there are no are hard and fast rules. Cons: Anything buried in the middle risks becoming forgettable. Penal Code 92, 2011), or witness (Or. Lying under oath is punishable under the Revised Penal Code of the Philippines as the crime of Perjury. 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. Perjury Suborning Perjury A person is guilty of suborning perjury if he/she attempts to induce a witness to give false testimony under oath in a court or other proceeding, and the witness actually gives false testimony. Strategically, you need to maximize the impact of the inconsistent statement while minimizing loss of control over the witness. Is the prior inconsistent statement on a pertinent matter or a collateral matter? On cross, like Coach Valvano, our mission at base is to survive and advance. Director of Advocacy Programs and Lecturer. After the deposition, he was involved in an effort to get Ms. Lewinsky a federal job outside Washington, DC (Historyplace.com, 2011). 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. Witness testimony is important in a variety of settings. For example, if the prior statement is an oral statement given to a police officer, it is important to emphasize the following: (1) where the witness was when they made the statement; (2) the fact that the witness made the statement right after the event when it was fresh in their mind; It establishes that (remember My Cousin Vinney?) penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is . A prior statement may be "inconsistent" without being directly contradictory, moreover. 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. Marchand, 7 . You must reload the page to continue. 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. 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. 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 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. Suparna Malempati Subdivision (d)(1)(A). The facts were never in doubt. If I can argue that the prior statement is the truth (either exception to hearsay or not hearsay, such as a party statement), then I bring it out in phase one. Evidence that the defendant has a criminal record may be admissible solely to impeach. 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. On May 6, 1994, Paula Jones filed a civil lawsuit for sexual harassment against then-president Bill Clinton. We've helped 95 clients find attorneys today. Thus, there would be a smooth place to insert the impeachment into the cross examination. 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. As trial lawyers, we constantly assess the temperature of the room. That being said, I may delay impeaching a witness when there is helpful or affirmative information to be gained during cross-examination. When a witness' false statement was not under oath, 18 USC Section 1001 for making false statements to government agents may still apply. 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. Unfortunately, liars in the courtroom may only be caught out by the inconsistent statements they make throughout a case. Weiler, 323 U.S. at 610. 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; 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. Marcus takes an oath sworn by the court commissioner. (a) A person commits the crime of perjury by inconsistent statements if. For example, perjury covers statements under oath. Attorneys and other people who might advise a witness may be targets of subornation of perjury accusations. See Instruction 8.135 (Perjury-Testimony). Ann. Isabel has most likely committed bribery in this case. Aggravating and Mitigating Factors in Criminal Sentencing, Receiving Immunity for Testimony in a Criminal Case, Criminal Attempt, Conspiracy, and Aiding and Abetting, Federal Crimes, Cybercrimes, and Juvenile Crimes, Expungement and Sealing of Criminal Records, The Mental State Requirement in Criminal Cases, Domestic Violence Restraining Orders Laws and Forms: 50-State Survey. Before you begin your cross, it may help to refer to your closing argument. When an inconsistent statement is elicited on cross-examination, I recommend impeaching the witness right then and there. Or better yet (if you have it), cross the witness into a corner forcing them to admit that when it comes to their inconsistencies the best they can hope for is that the jury takes their word for it and then follow through with your safety net: a strong character impeachment point for untruthfulness, or (even better) impeachment with a prior conviction for a crime of dishonesty. In most cases, if you want to report perjury you can start with your state's district attorney's office. The first common-law prohibition against witness perjury criminalized false testimony, given under oath, in a judicial proceeding, about a material issue. Stat. While the defense attorney was attempting to impeach the witness, I realized that he was nitpicking certain facts that were not in dispute. Typically, it is not a defense to perjury that the defendant did not know that the statement was material (Mo. Marcus made two inconsistent statements while under a validly administered oath in Lindsay's conversion trial, which is a judicial proceeding. 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 . Instead, the jury was on the edge of their seats. 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. The only question was whether the owners of the dog had actual criminal liability. Ann. Gearan, A., Clinton Disbarred by Supreme Court, Famguardian.org website, accessed May 9, 2011, http://famguardian.org/Subjects/LawAndGovt/News/ClintonDisbar-011001.htm. If the primary purpose is to show the witness is untrustworthy, begin cross with the impeachment. c. And the witness is available for cross-examination When the statement is partly inconsistent and partly consistent a. Be certain that the impeachment is necessary and consider whether you can simply refresh the witnesss recollection rather than pointing out an inconsistency. A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; (b . 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. The subject matter of the statement was material. Or. Stat. 162.295, 2011), and tampering with a witness (18 U.S.C. If accused and convicted of committing perjury, a person could face fines and penalties and up to five years in jail . 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. For example, lying under oath that you do not wear glasses could be considered perjury when you are testifying about what you have seen. Marcus has most likely committed perjury in this example. 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. Bribery is typically graded as a felony (N.Y. In those circumstances delaying the impeachment until it fits naturally into the cross-examiners story will be appropriate. 5104, accessed May 8, 2011, http://law.onecle.com/pennsylvania/crimes-and-offenses/00.051.004.000.html. In addition, based on these facts, Isabels connection to the judge is only through her perjury prosecution, so her act appears calculated to influence his decision in that case, especially because the watch is expensive and not merely a token. The Supreme Court has held that materiality is a question of fact for the jury. If known to members of the prosecution team, it casts doubt on the honesty of the entire case. How significant is the inconsistency? If the witness is lying, what is the motivation to lie? Stat. Stat. And if all I want to do is to attack credibility, I save it for phase three. N.Y. Logical and Critical Thinking. On appeal, I was arguing that the FBI Lab Technician testified exactly the way the book told him not to. It is a well-accepted book of treatise in the field of orthopedics, but I am not familiar with chapter 31." When you do that, you increase the likelihood of success with the jury, whatever your point may be in closing. Legal definition of bribery, Duhaime.org website, accessed May 6, 2011, http://www.duhaime.org/LegalDictionary/B/Bribery.aspx. Ultimately, we won the case because the technician made a statement that was not backed by science. 575.040, accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm. Associate Professor of Law All these acts are generally supported by specific intent or purposely or general intent or knowingly. 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. 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. 18 U.S.C. The Model Penal Code defines perjury as a false material statement, that the defendant does not believe to be true, made under oath in any official proceeding (Model Penal Code 241.1(1)). A statement is "inconsistent" "if under any rational theory it might lead to any relevant conclusion different from any other relevant conclusion resulting from anything the witness said." Weinstein's Federal Evidence 613.04 [1]. All these acts are generally supported by specific intent or purposely, or general intent or knowingly. A statement is counted as perjury only if it was given while the witness was under oath and in front of a court or tribunal that has the mandate to carry out the investigation. Rev. You will also establish that everything the witness says should be called into question. 16 16-10-70, 2011). 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. 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. If not, then you may not score that many points with the jury by pointing out the contradiction, which may mean that the better choice is just to leave it out altogether. Have a pretty good track record of predicting outcomes ensure that witnesses truthfully. ; inconsistent & quot ; without being directly contradictory, moreover subornation of perjury appear to be present and. 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