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VOLUME 7 - CHAPTER 95
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95.4 Two Witness Rule
95.4.1 Perjury: Defense Theory That At Least Two Witnesses Are Required
95.4.2 Perjury: Two-Witness Rule -- Naming Witnesses As Improper Comment On Evidence
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 7 - CHAPTER 95
95.4.1 Perjury: Defense Theory That At Least Two Witnesses Are Required
RATIONALE: Without a special instruction the jury may not understand that at least two witnesses are needed to convict the defendant of perjury.
POINTS AND AUTHORITIES: A person may not be convicted of perjury when the only proof of falsity of the statement is the testimony of one witness which contradicts the defendant's statement. (See e.g., Weiler v. U.S. (1945) 323 US 606 [65 SCt 548; 89 LEd 495]; People v. Alcocer (CA 1991) 230 CA3d 406, 413 [282 CR 5].)
In Weiler, the United States Supreme Court found reversible error in the failure to give an instruction precluding conviction based solely on the evidence of a single witness. The high court noted the historical precedent for the rule: "The special rule which bars conviction for perjury solely upon the evidence of a single witness is deeply rooted in past centuries." (Id. at 608-09; but see People v. Trotter (CA 1999) 71 CA4th 436, 440-41 [83 CR2d 753] [more-than-one-witness requirement does not apply to falsity in signing under penalty of perjury].) Under the two-witness rule, the falsity of the defendant’s testimony may not be proven by the uncorroborated testimony of a single witness. (See U.S. v. Chaplin (7th Cir. 1994) 25 F3d 1373, 1377.) No matter how persuasive the other circumstantial evidence may be, there must be a second witness to the falsity. (Ibid; see also Hale v. State (MS 1994) 648 So2d 531, 536; NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 228.10 [Perjury] (TRCC, 1999); PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 4.14 ["One Witness Plus" Requirement In Perjury And Related Cases] (Pennsylvania Bar Institute, PBI Press, 06/00).)
Further, whether the two-witness rule has been satisfied is a question which must be decided by the jury. "To resolve this latter question is to determine the credibility of the corroborative testimony, a function which belongs exclusively to the jury." (Id. at 609-10.) Accordingly, the failure to instruct on this requirement was held to be reversible error.
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
CAVEAT: Witnesses should not be named. (See FORECITE National™ 95.4.2 [Perjury: Two-Witness Rule -- Naming Witnesses As Improper Comment On Evidence].
RESEARCH NOTE:
Annotation, Right Of Defendant In Prosecution For Perjury To Have The "Two Witnesses, Or One Witness And Corroborating Circumstances" Rule Included In Charge To Jury -- State Cases, 41 ALR5th 1.
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 may not find that the testimony was false based solely on the testimony of a single witness.
The falsity of the testimony must be established by credible testimony from at least two witnesses.
[Source: FORECITE National™.]
SAMPLE INSTRUCTION # 2:
The testimony of one witness is not enough to support a finding that the testimony of _______ was false. There must be additional evidence -- either the testimony of another person or other evidence -- which tends to support the testimony of falsity. The other evidence, standing alone, need not convince you beyond a reasonable doubt that the testimony was false. But after considering all of the evidence on the subject, you must be convinced beyond a reasonable doubt that the testimony was false.
[Source: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 8.110 [Perjury-Testimony] ¶ 7 (2000).]
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 7 - CHAPTER 95
95.4.2 Perjury: Two-Witness Rule -- Naming Witnesses As Improper Comment On Evidence
PRACTICE NOTE: The instructions may not improperly comment on the evidence. (See FORECITE National™ 6.1.1 [The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence] and FORECITE National™ 16.14.3.3 [Court's Duty To Refrain From Improper Comment On The Evidence].) To name the witnesses when giving an instruction on the "two-witness rule" in a perjury case "would risk commenting on the evidence." (NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 228.10, n. 2, [Perjury] p. 573 (TRCC, 1999); see also State v. Hill (NC 1943) 28 SE2d 100, 103-04.)
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].