Chapter 95

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VOLUME 7 - CHAPTER 95
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95.3 Perjury: Defenses And Defense Theories

    95.3.1 Perjury: Requirement Of Juror Unanimity As To At Least One False Statement
    95.3.2 Perjury/False Swearing: Defense Of Recantation Or Retraction
    95.3.3 Perjury: Collateral Estoppel Precludes Charge Of Perjury Based On Alibi Testimony
    95.3.4 Perjury: Advice Of Counsel As Defense
    95.3.5 Perjury: Additional Defenses And Defense Theories
    95.3.6 Perjury:"Perjury Trap" As Defense Theory

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95.3.1 Perjury: Requirement Of Juror Unanimity As To At Least One False Statement

RATIONALE: If a single count of perjury is based on more than one allegation of falsehood, a unanimity instruction may be necessary.

POINTS AND AUTHORITIES: Where a single count of perjury is based on allegations that a defendant testified to more than one falsehood the jury should be instructed that it must unanimously agree on at least one of the false statements. (U.S. v. Holley (5th Cir. 1991) 942 F2d 916, 928-29 [instruction wrongly permitted conviction absent juror agreement as to any particular statement]; People v. McRae (CA 1967) 256 CA2d 95, 120-21 [63 CR 854]; see CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 7.25 [All Charges Of Perjury Need Not Be Proved] (West, 6th Ed. 1996); see also U.S. v. Fawley (7th Cir.1998) 137 F3d 458, 472.)

However, it is not clear whether this same requirement is applicable where a document is alleged to be perjured as a result of more than one material omission. (See People v. Smith (CA 1984) 155 CA3d 1103, 1186-87 [203 CR 196] [suggesting that unanimity may not be required].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 12.2].

STRATEGY NOTE: In cases involving multiple statements, counsel should weigh the relative merits of conditioning conviction on juror unanimity as to any one statement against any defense argument that the defendant’s actions or intent should be considered as a whole. For example, other evidence may support an argument that the defendant’s overall intent was not to deceive or perjure, even if specific statements contradicted facts which the defendant appears to have known. In some instances, focusing juror attention on individual statements may undermine the persuasiveness of arguments as to overall intent or conduct.

RESEARCH NOTES:

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See also generally, FORECITE National™ 305.16.4 [Perjury].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 95.1.2 [Perjury: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 1:

You must not find the defendant guilty of perjury unless all members of the jury agree unanimously, that at least one particular [answer / statement / etc.] was false.

[Source: U.S. v. Fawley (7th Cir.1998) 137 F3d 458, 464.]

SAMPLE INSTRUCTION # 2:

    The defendant is charged in [Count _______ of] the indictment with perjury in violation of Section 1621 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

    First, the defendant testified under oath before [e.g., the grand jury] that _______;

    Second, the testimony was false;

    Third, the false testimony was material to the matters before [e.g., the grand jury]; and

    Fourth, the defendant knew at the time the testimony was false.

    [All of you must agree as to which statement was false.]

[Source: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 8.110 [Perjury-Testimony] (2000).]

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95.3.2 Perjury/False Swearing: Defense Of Recantation Or Retraction

PRACTICE NOTE: Many jurisdictions provide an exemption or defense for perjury or false swearing where a retraction of the false statement is made. (See Robinson, Criminal Law Defenses (West, 1984) § 112(e) p. 573.) Typically, the retraction must take place during the proceedings and before the proceedings are affected. (Ibid.) "Ordinarily, a witness who has testified falsely may retract his false statement, thereby purging the prior perjury, if he does so in the course of the same proceeding in which it was made, before the false statement has substantially affected the proceeding, and before it became manifest that its falsity was or would be exposed." [Footnote omitted.] (Wharton’s Criminal Law (West, 15th ed. 1996) § 599, p. 328; see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 50.10 [The Recantation Defense] (West, 5th ed. 1999 Supp.).)

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.4 [Perjury].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 95.1.2 [Perjury: Federal Circuit Model Instructions And Notes].

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95.3.3 Perjury: Collateral Estoppel Precludes Charge Of Perjury Based On Alibi Testimony

PRACTICE NOTE: State v. Olson (MN 1991) 478 NW2d 218, 220-21 held that collateral estoppel precludes a charge of perjury based on the defendant’s alibi testimony given in his own defense and which the trial judge relied upon as the basis for acquittal.

RESEARCH NOTES:

See generally, FORECITE National™ 305.5.6 [Equitable Estoppel].

See also generally, FORECITE National™ 305.16.4 [Perjury].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 95.1.2 [Perjury: Federal Circuit Model Instructions And Notes].

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95.3.4 Perjury: Advice Of Counsel As Defense

PRACTICE NOTE: It may be a defense to a perjury charge that the defendant acted upon the advice of counsel. (Wharton’s Criminal Law (West, 15th ed. 1996) § 598, p. 328.)

However, advice of counsel is not a defense when the defendant has not communicated all material facts to counsel, or when the advice of counsel is sought merely as cover for wrongdoing. (Ibid.)

See also FORECITE National™ 252.10.2.2 [Defenses: Good Faith Reliance Upon Attorney Or Other Professional Advice].

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.4 [Perjury].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 95.1.2 [Perjury: Federal Circuit Model Instructions And Notes].

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95.3.5 Perjury: Additional Defenses And Defense Theories

PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

RESEARCH NOTES:

See generally, FORECITE National™ 305.16.4 [Perjury].

RELATED FEDERAL MODEL INSTRUCTIONS:

See FORECITE National™ 95.1.2 [Perjury: Federal Circuit Model Instructions And Notes].

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95.3.6 Perjury:"Perjury Trap" As Defense Theory

PRACTICE NOTE: Some jurisdictions have held that the government violates due process when it "calls a witness before the grand jury with the primary purpose of obtaining testimony from him in order to prosecute him later for perjury." (See United States v. Chen (9th Cir. 1991) 933 F2d 793, 796 [perjury trap doctrine applied where the government used "its investigatory powers to secure a perjury indictment on matters which are neither material nor germane to a legitimate ongoing investigation of the grand jury"]; see also United States v. McKenna (9th Cir. 2003) 327 F3d 830; see also generally 257.8 [Outrageous Government Misconduct].)