This is another area where she and I have different perspectives based on our professional experience. Of course, the answer is the classic law professor response that it depends. When isnt that the answer? 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. Penal Code 38.06, 2011). The prosecutor called a neighbor to the stand who was also elderly and did not have all of the facts exactly right. Should the jury believe parts of the witnesss testimony? When a state legislator (Cal. If the witness denies the statement, you impeach. The challenge is for the jury and prosecution to find out the truth, the whole . Once you decide that, its easier to find the right sequence for the impeachment. Putting time between the impeaching statement and the redirect explanation reduces the impact of the witnesss explanation on redirect. Subornation of perjury is 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 actually committed. Testimony full of perjuries. Despite early emphasis on cross-examination as being needed to expose mendacity, Dean Wigmore viewed cross-examination as the essence of the trial and truth-seeking process in the United States. U.S. v. Adcock, 558 F.2d 397 (1977), accessed May 6, 2011, http://scholar.google.com/scholar_case?case=189694239263939940&hl=en&as_sdt=2&as_vis=1&oi=scholarr. 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. 162.275, 2011) when a bribe is conferred or offered, asked for, received, or agreed to be received to influence their vote or decision. 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. Rev. Clinton v. Jones, 520 U.S. 681 (1997), accessed May 9, 2011, http://www.law.cornell.edu/supct/html/95-1853.ZS.html. Not a second longer. The two are very similar, but false declarations tend to be easier to prove. The only question was whether the owners of the dog had actual criminal liability. Impeachment can occur unexpectedly and spontaneously, or can be anticipated and predicted. Ann. 5901, accessed May 5, 2011, http://law.onecle.com/pennsylvania/judiciary-and-judicial-procedure/00.059.001.000.html. 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. Is the witness lying? Ala. Code 13A-10-107, accessed May 6, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-107.html. Approach every cross-examination as a surgeon approaches an operation methodically, deliberately, and with precision. Penal Law 200.04, 2011). . After a trial in the Senate, he was acquitted of both counts and thereafter served out his term as president (Historyplace.com, 2011). In order to make the decision, keep in mind an important guideline for effective storytelling. The prosecutor does not have to provide corroborative evidence and does not have the burden of proving that the first statement was false, which will simplify and expedite the trial and may subject Marcus to conviction of this offense. statements to the trier of fact. N.C. Gen. Stat. Its often said that timing is everything, and now you need a plan. 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. They stopped listening. Isabel and the umpire probably have not committed bribery in this case. N.Y. It also forces a predictable move by your opponent. This strategy is not without risk. First, to the extent the witness will testify to any facts or opinions that are helpful to my case, I would want to elicit that testimony before doing anything that might damage the credibility of the witness. In criminal cases, government investigators often talk to witnesses while out on the field. The definition of perjury is therefore much more complicated than many people realize. Suparna Malempati 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. While impeaching is fun for the attorney, it routinely gets lost on the jury. Penal Law 200.00, 2011) with enhancements for bribery that is carried out with a larger sum of money (N.Y. The prior statement was given under oath in a procedure under penalty of perjury (trial, hearing deposition etc.) Cross examination is a controlled conversation, and you are the witness, confirming your story about their story. Later in the day, while watching her sons professional baseball game, Isabel notices that the umpire looks familiar. Assistant Director, Trial Advocacy Program. N.C. Gen. Stat. 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. Stat. 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. Should Former President Clinton Have Been Criminally Prosecuted for Perjury and Obstruction of Justice? Cons: Anything buried in the middle risks becoming forgettable. 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. An investigation pursuant to the Jones lawsuit revealed that the president was currently having an affair with a White House intern, Monica Lewinsky (Historyplace.com website, 2011). The subject matter of the statement was material to the proceeding in which it was made. Or. 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. Marcus has probably not committed perjury in this case. 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]. Thus, there would be a smooth place to insert the impeachment into the cross examination. 575.040(3) (1), accessed May 5, 2011, http://www1.law.umkc.edu/suni/CrimLaw/calendar/Class_4_Mo_perjury.htm. All these acts are generally supported by specific intent or purposely or general intent or knowingly. The decision regarding when to use this potent tool depends on the goal. 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. In the book, the author wrote that under no circumstances should an agent or technician testify a certain way because it was not backed by science. 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. And if all I want to do is to attack credibility, I save it for phase three. Thus modern laws of perjury are calculated to ensure that witnesses testify truthfully so that justice can be done in each individual case. He also stated that he could not recall ever being alone with Lewinsky at the White House (Deposition excerpts, 2011). 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 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. Evidence that the defendant has a criminal record may be admissible solely to impeach. For example, the witness said something different to the police officer than she did at a preliminary hearing or the witness said something different on direct exam than in a prior statement. 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. 575.040(3), 2011). 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; Perjury Charges in High-Profile Cases 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. Stat. 1512, accessed May 7, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html. trial and may subject Marcus to conviction of this offense. Figure 13.9 Diagram of Perjury, Bribery, and Obstruction of Justice. Penal Law 195.10, accessed May 7, 2011, http://law.onecle.com/new-york/penal/PEN0195.10_195.10.html. Most state laws have similar provisions, but judges typically have the discretion to use . 575.040, 2011). For example:! Marcus has most likely committed perjury in this example. Logical and Critical Thinking. 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 will also establish that everything the witness says should be called into question. Hence, my preference is to open an examination with the impeachment as a sort of I told you so to the jury when that opportunity presents itself and thereby my credibility as the advocate is reinforced. An act of committing such a crime. Cal. 613(b) differs from F.R.E. Unfortunately, liars in the courtroom may only be caught out by the inconsistent statements they make throughout a case. False Statements Are Perjury. questions about prior statement). Stat. There, it usually is best to structure your cross so that the impeachment comes toward the end of the cross. 18 U.S.C. This type of bribery is typically called commercial bribery (N.Y. 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. Ortiz, J. L., Verdict in: Bonds Found Guilty, but Case Not Closed Yet, USA TODAY website, accessed May 8, 2011, http://www.usatoday.com/sports/baseball/2011-04-13-verdict-barry-bonds-guilty_N.htm. Penal Code 88, accessed May 7, 2011, http://law.onecle.com/california/penal/88.html. The O.J. The specific act that constitutes the crime of perjury is not the false statement itself, but rather the oath or affirmation that the statement is true. 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. Their facial and body movements showed their displeasure and questions of the attorney wasting their time. 6065, accessed May 5, 2011, http://www.law.cornell.edu/uscode/26/usc_sec_26_00006065-000-.html. 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)). 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. Related to DECLARATION UNDER PENALTY OF PERJURY. The reason I do that is if it is important and material enough to impeach about, then it should already have its own chapter or section in my cross examination. When this occurs, the prosecutor can attempt to prove that the two statements are inconsistent, and both cannot be true. 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The Model Penal Code has a similar provision (Model Penal Code 241.1(2)). Choose a delete action Empty this pageRemove this page and its subpages. These are the type of questions that should guide your decision when to impeach. If done properly, impeachment with a prior inconsistent statement can be very successful to help call the credibility of the witness into question. 67 N.C. Gen. Stat. And then, decide whether to impeach right then and there, while the iron is hot; whether to flag the inconsistency aloud, raise the level of suspense, but hold back, for just a while, until you decide its the right time to return to that impeachment; or whether the better course is to not say a word at all at the time to save it, put it in your pocket and unleash the impeachment at the moment you calculate (feel) it serves your case and client best. (2) offered to prove the truth of the matter asserted. While on the stand, under oath, Bob lies about whether or not he saw the defendant at the restaurant which the defendant stated as his alibi. 13-2807, 2011). If accused and convicted of committing perjury, a person could face fines and penalties and up to five years in jail . Texas Penal Code 37.02 ^2. 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. The falsity of the perjurious statement may be established either by the testimony of two independent witnesses or by one witness and independent corroborating evidence that is inconsistent with the innocence of the accused. Fla. Stat. The first step is always to decide what you will argue in closing about the witness. 720 ILCS 5/31-4, accessed May 7, 2011, http://law.onecle.com/illinois/720ilcs5/31-4.html. You may want it to be the last thing (or almost the last thing) your fact finder hears from the witness. 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Criminally Prosecuted for perjury and Obstruction of Justice you impeach ( N.Y it also forces predictable... Similar provision ( Model penal Code 88, accessed May 7, 2011 ) with enhancements bribery... 2011, http: //law.onecle.com/alabama/criminal-code/13A-10-107.html also forces a predictable move by your opponent potent tool on. This example had actual criminal liability cons: Anything buried in the courtroom May only caught! Classic law professor response that it depends our professional experience the credibility of statement... 195.10, accessed May 7, 2011 ) with enhancements for bribery that is carried out with larger! ( or almost the last thing ( or almost the last thing ) your finder! The discretion to use becoming forgettable you decide that, its easier to prove the truth of the wasting! Convicted of committing perjury, bribery, and you are the witness says should called! 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