Necessity of a Valid Oath

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. § 6065, 2011) or a report (Cal. Penal Code § 129, 2011). The Model Penal Code also considers a false written statement perjury, as long as the document containing the statement is made upon oath or affirmation (Model Penal Code § 241.1(3)). In spite of the attendant circumstance requirement that the statement be made under oath, many jurisdictions disallow a defense to a prosecution for perjury based on the assertion that the oath or affirmation was administered or taken in an irregular manner (Ala. Code § 13A-10-108, 2011). The Model Penal Code has a similar provision (Model Penal Code § 241.1(3)). 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. Stat. Ann. § 5901, 2011). The Model Penal Code allows for an “oath or equivalent affirmation” (Model Penal Code § 241.1(1)).

Perjury Criminal Intent

As stated previously, in many jurisdictions, the defendant must know that a statement is false or must make the statement with the specific intent or purposely to deceive. When the intent requirement is general intent or knowledge that the statement is false, proof that the statement is false could give rise to an inference of intent (State v. Kimber, 2011).

Materiality Requirement

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. Ann. Stat. § 575.040, 2011). 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). 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)). Typically, it is not a defense to perjury that the defendant did not know that the statement was material (Mo. Ann. Stat. § 575.040(3), 2011). The Model Penal Code has a similar provision (Model Penal Code § 241.1(2)).

Corroborative Evidence Requirement

Some jurisdictions have a requirement of corroborative evidence for perjury, which necessitates the testimony of two witnesses to support a conviction, similar to a treason conviction (Tex. Code of Criminal Procedure, § 38.18, 2011). The Model Penal Code also has this corroborative evidence requirement (Model Penal Code § 241.1(6)).

Defense of Retraction

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). The Model Penal Code has a similar provision (Model Penal Code § 241.1(4)).

Example of a Case Lacking an Element of Perjury

Marcus is a witness in a civil suit for damages against Lindsay. Macy’s department store is suing Lindsay for the alleged theft of a diamond necklace. Marcus takes an oath sworn by the court commissioner. He thereafter testifies that he saw Lindsay try on the necklace and then walk out of the store without paying for it. When the Macy’s attorney asks Marcus what he was doing at Macy’s, Marcus responds that he was buying some jewelry as a gift for his wife. In actuality, Marcus was shopping for jewelry as a gift for his girlfriend. Marcus has probably not committed perjury in this case. Marcus is testifying as a witness in a civil rather than criminal trial, but this satisfies the perjury requirement that the testimony be offered during a judicial or official proceeding. Before testifying, Marcus took an oath that was administered by a court commissioner, also satisfying the perjury requirement that the defendant take an oath administered by someone with the legal authority or authorization to take evidence under oath. Marcus’s statement is false, and he made the statement with knowledge of its falsity, which satisfies the perjury criminal intent requirement. However, Marcus’s statement does not appear to be material to this judicial proceeding because the reason for Marcus’s presence at Macy’s will not affect the outcome of Lindsay’s civil theft trial (usually called the tort of conversion). Thus Marcus is probably not subject to prosecution for and conviction of perjury, based on his testimony in this case.

Example of Perjury

Review the example in Section 13 “Example of a Case Lacking an Element of Perjury” with Marcus. Change this example so that Marcus testifies that he did not see Lindsay walk out of the Macy’s department store without paying for the necklace because he does not want to admit that he was shopping for jewelry to buy his girlfriend. Anthony, the Macy’s civil trial attorney, cross-examines Marcus, and forces him to admit that he saw Lindsay steal the necklace, and that he was lying previously. Marcus has most likely committed perjury in this example. Marcus made a false statement, under a validly administered oath, in a judicial proceeding, with knowledge of its falsity. Marcus’s statement was material because, if believed, it would have helped exonerate Lindsay in her civil case. In many jurisdictions, the trier of fact, which could be a judge or jury, determines whether or not the statement is material. Marcus’s admission that he was lying is not a retraction that could serve as a defense because it was not made until the lie was about to be exposed. Thus all the elements of perjury appear to be present, and Marcus may be subject to prosecution for and conviction of this offense.

Figure 13.6 Diagram of Defenses to Perjury

Perjury by Inconsistent Statements

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. Corroborative evidence is not required, and the prosecution does not have the burden of proving that one of the statements is false, just that one or the other was false and not believed by the defendant to be true (Ala. Code § 13A-10-104, 2011). The Model Penal Code has a similar provision (Model Penal Code § 241.1(5)).

Subornation of Perjury

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. § 14-210, 2011).

Example of a Case Lacking an Element of Subornation of Perjury

Review the example given with Marcus in Section 13 “Example of Perjury”. Add to this example and assume that Marcus begs Janelle, another witness in Lindsay’s conversion trial, to say that she did not see him at Macy’s the day Lindsay stole the necklace. Janelle flatly refuses. Marcus has not committed subornation of perjury in this case. Although Marcus tried to procure Janelle to commit perjury, with specific intent or purposely, Janelle did not cooperate and did not commit the perjury. 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.

Figure 13.7 Comparison of Perjury by Inconsistent Statements and Subornation of Perjury

Perjury Grading

Perjury is generally graded as a felony (N.C. Gen. Stat. § 14-209, 2011), with a potential sentencing enhancement for committing perjury that causes another to be sentenced to prison or the death penalty (Ga. Code tit. 16, § 16-10-70, 2011). The Model Penal Code grades perjury as a felony of the third degree (Model Penal Code § 241.1(1)). Subornation of perjury is also graded as a felony (N.C. Gen. Stat. § 14-210, 2011). However, because of the procedural difficulties in successfully convicting a defendant of perjury and subornation of perjury, these crimes are not often prosecuted. 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.

Prosecutorial Burden in Bribery Prosecutions

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. The most difficult bribery element to prove beyond a reasonable doubt is the criminal intent element of specific intent or purposely or general intent or knowingly to enter into an agreement that influences the bribed individual’s decision.

Example of Bribery

Isabel, a defendant on trial for perjury, notices the judge presiding in her case shopping at Macy’s department store. Isabel thereafter buys an expensive watch, has it wrapped, walks up to the judge, and offers it to him as a gift. Isabel has most likely committed bribery in this case. Although the judge did not accept Isabel’s “gift,” most states criminalize as bribery the offer of any benefit, so the act of bribery is complete when Isabel proffers the watch. In addition, based on these facts, Isabel’s 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. Note that a prosecutor is required to prove beyond a reasonable doubt Isabel’s 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.

Another Example of Bribery

Review the example with Isabel in Section 13 “Example of Bribery”. Add to this example and assume that the judge graciously accepts Isabel’s gift and thereafter rules in her favor, acquitting her of perjury. In this example, both the judge and Isabel have likely committed bribery because most states criminalize the conferring, offering, and accepting and receiving a bribe as the criminal act elements. Thus both Isabel and the judge may be subject to prosecution for and conviction of this offense, and the judge’s acquittal of Isabel will ease the prosecutor’s burden in proving the specific intent or purposely or general intent or knowingly to enter into an agreement corruptly influencing the decision making in this case.

Example of a Case Lacking an Element of Bribery

Isabel notices a gentleman struggling to pay his bill at a local coffee shop. Isabel steps up and charitably offers to pay the gentleman’s bill. Later in the day, while watching her son’s professional baseball game, Isabel notices that the umpire looks familiar. 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. Isabel and the umpire probably have not committed bribery in this case. Although Isabel gave the umpire money, and he was the decision maker in her son’s 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 umpire’s decisions. 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.

Bribery When No Authority to Act Is Present

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).

Example of Bribery When No Authority to Act Is Present

Review the example with Isabel and the judge in Section 13 “Another Example of Bribery”. 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. Isabel and the “judge” may still be prosecuted for and convicted of bribery in many jurisdictions and under the Model Penal Code because lack of authority is typically not a defense to bribery under modern statutes criminalizing this offense.

Figure 13.8 Diagram of Defenses to Bribery

Bribery Grading

Bribery is typically graded as a felony (N.Y. Penal Law § 200.00, 2011) with enhancements for bribery that is carried out with a larger sum of money (N.Y. Penal Law § 200.03, 2011) or bribery that results in someone’s prosecution or incarceration for a felony (N.Y. Penal Law § 200.04, 2011). When a state legislator (Cal. Penal Code § 88, 2011) or a public official (Cal. 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.

Example of Obstruction of Justice

Barry Bonds, a baseball player and record-breaking home run hitter for the San Francisco Giants, was found guilty by a federal jury for obstruction of justice, based on his refusal to answer a question during a grand jury investigation of his steroid use (Macur, J., 2011). Bonds was also charged with three counts of perjury, but the jury could not agree to convict, resulting in a mistrial on all three counts (Ortiz, J. L., 2011). The perjury charges stemmed from Bonds’s 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. The obstruction of justice conviction resulted from Bonds’s evasive answer to the question of whether his personal trainer had ever injected him with steroids (Macur, J., 2011). Instead of answering yes or no to this question, Bonds began reminiscing about his friendship with the trainer, who went to prison four times in five years for also refusing to testify in the investigation (Macur, J., 2011). The perjury charges support the obstruction of justice charge, so the defense asked for a court dismissal of the obstruction of justice conviction in order to clear the way for an appeal (Ortiz, J. L., 2011). Note that Bonds’s obstruction of justice charge of evading the question and refusing to give evidence appears easier to prove than the perjury charges, which have a daunting criminal intent requirement, as discussed in Section 13 “Perjury Criminal Intent”.