Why aren’t people who are found guilty in court also charge with perjury when factual matters of their testimony is found to be false through other witnesses. When someone is accused of a crime, and lies about their actions, whereabouts, etc to the court, they are knowingly and purposely lying to the court. Isn’t that what perjury is? And does the lawyer-client privalege protect lawyers from a perjury charge under similar circumstances, where their client has told them the truth but lies to the court?
The lawyers are not under oath, so they are not committing perjury.
But nonetheless, the ethical rules lawyers must observe generally forbid a lawyer from making flase representations to a tribunal. A lawyer may not, in other words, argue that his client’s testimony should be believed if he knows it was perjured.
Unfortunately, this rule sometimes (although not nearly as frequently as “The Practice” would have you believe) runs into another absolute: a client has an absolute right to testify in his own defense. His lawyer cannot stop him from lying on the stand, nor can he reveal the lie to the court.
In such rare cases, the ethical choice for the attorney is typically to arrange to let the client testify by narrative – he simply gets on the stand and tells his story, without question prompting – and then argue the other aspects of the case, not the testimony.
People could theoretically be charged with perjury if they testify in their defense, they are found guilty, and the finding is such that their testimony must have been materially false for the jury’s verdict to be sustained. It’s seldom done. You would have to have a second trial, the penalties for perjury are not severe, and the damage of a perjury conviction is similar, in terms of future credibility, to the damage of the inital felony conviction.
And at that second trial, the defense would certainly try to make hay of the original issues litigated, even though a principal called “collateral estoppel” would probably prevent much of that.
In short, it has very little utility.
- Rick
IANA lawyer, but I’ve taken some law courses. As officers of the court, lawyers are not allowed to knowingly solicit perjured testimony from their clients.
If they know their clients will lie, they should keep them off the witness stand. If the client IS on the stand, they should not ask questions that will result in a lie. Of course, they may not be able to protect their client from such questions posed during cross examination. But I’m at the limit of my knowledge here – so I don’t know what the lawyer’s ethical obligation is upon hearing such perjured testimony elicited by somebody else.
One tactic lawyers sometime use is willful ignorance of the true facts. They don’t ask their client, “Did you do it?” They don’t want to know, because knowing limits their options.
AFAIK, there is nothing to prevent a convicted person from being charged with perjury should it occur in the course of the trial. A lot of defendents don’t testify, however, so the crime isn’t committed.
There are at least two reason why it doesn’t happen all that office. The first is simply that courts are already over burdened, and a prosecutor who is satisfied with the original conviction just won’t bother to follow up.
The second is evidenciary(sp?). The prosecutor has to assemble a whole new case based around the specifics of the alleged perjury. Say I murder someone, and testify that I was hanging out in a bar at the time of the murder. The jury in the first trial, for whatever reasons, discounts my testimony and convicts me. It is not sufficient on the second trial that the prosecutor merely points to my testimony and says, “Jim must have been lying since the other jury says he was killing the guy at the time.” My specific lie must be proven to be so. Maybe I WAS at the bar, but left earlier than I said, or I “couldn’t remember” exactly when I left, but was sure I didn’t kill anyone. Maybe I was at the bar, but the firsrt trial had the time of death wrong, so it still wasn’t perjury.
Maybe my only perjury would be saying, “I didn’t kill him.” A real lawyer will have to come along to answer whether I could face a separate perjury charge if my only lie is denial of the original crime.
IANACL.
To some extent, there’s an implicit perjury penalty built in to the sentencing.
Simple example:
Plead guilty, 2 years.
Plead not guilty and be found guilty, 5 years.
But this is in no means applied consistently or well understood in all jurisdictions.
It could alternatively be argued (and is used as a justification to the public) that the guilty plea saves judicial time and expense, or that the extra penalty for the “not guilty” plea is there to discourage defendendants from “rolling the dice”.
Nor does your “implicit perjury penalty” accurately ‘punish’ perjury, since the higher sentence is possible after trial even if the accused never testified.
I’m not sure what makes you believe that the plea bargain process is anything other than what’s advertised: a way for the prosecution to manage resources. For the accused, the attraction is obvious: a chance to serve less time, or be convicted of a lesser charge, than the facts might support at trial and sentencing.
In any event, I reject your idea that plea bargaining is an implicit perjury penalty.
- Rick
I agree with Bricker: the plea-bargaining system does not incorporate “an implicit perjury penalty.” For one thing, most plea bargains occur before the trial even begins, so the defendant has not even testified and therefore cannot have committed perjury.
More importantly, even if the defendant does go to trial, he or she need not testify. Pleading “not guilty” is not testimony: it is simply an election by the defendant in favor of exercising his or her constitutional right of putting the state to its burden of proof. Only if the defendant voluntarily takes the stand and lies under oath does perjury become an issue.
Different jurisdictions, Bricker. Sentencing theory is not a simple topic.
Please note, Bricker and brianmelendez, that I’m Australian, and the OP is Canadian?
Well, duh.
Well, I freely admit to being less than an expert in Australian or Canadian law.
But it seems to my unexpert eyes that the objections brianmelendez and I raised still apply. Can you explain why they don’t?
I suspect that it has something to do with the fact that, if defendants judged guilty were prosecuted for perjury, then prosecutors would be liable for the same prosecution when defendants are found innocent. Geese and ganders.
No, that wouldn’t exactly be the same thing. Prosecuting attorneys aren’t stating facts or evidence, they’re getting others to do so, and then commenting on them without making personal statements of belief or knowledge. It sounds like hairsplitting, btu there’s a big difference between eliciting testimony and testifying. Witnesses for the prosecution, on the other hand, can sure as shootin’ be tried for perjury if they lie on the witness stand.
Not at all. For one thing, the prosecutor does not testify, the prosecutor only examines witnesses, and therefore cannot commit perjury–only a witness can. More to the point, a trial does not find a defendant “innocent,” a trial finds the defendant “guilty” or “not guilty.” A finding of “not guilty” means only that the state has not met its burden of proving beyond a reasonable doubt that the defendant committed the crime–nothing more. A finding of “not guilty” does not establish the defendant’s innocence, which is why the defendant may still be held liable for the same alleged act in a later civil proceeding.
Duly noted. But Canada, Australia, and the United States are all common-law jurisdictions, with essentially the same due-process standards. How does the geography affect the analysis?
Bricker, my judges will actually tell defendants at sentencing after a trial where the defendant testified that, since the jury believed that they committed perjury (i.e., the only way they could have been found guilty is for the jury not to have believed them), they were being sentenced more harshly than they would have if they had not testified. I have also had them tell a non-testifying defendant that they were being cut some slack because they didn’t testify.
The DA's office always makes a sentencing recommendation after trial, and everyone alwasy knows that it's more than they recommended in a pre-trial plea bargain.katie:
I think there’s a disconnect between what you’re saying and what Desmostylus wrote.
Desmostylus suggested that it was going to trial that created a “perjury penalty.” Note the plead vs. not-plead distinction, and the “rolling the dice” comment. He clearly meant to apply the phrase “perjury penalty” to a trial, and withhold it for a plea bargain.
But what you’re talking about is going to trial AND HAVING THE ACCUSED TESTIFY. Under those circumstances, and assuming that the accused’s testimony must constitute perjury if the jury’s verdict is guilty, then I understand a “perjury penalty.” But when a harsher sentence is requested at the close of a trial than was offered in plea bargain, it’s inapposite to call it a “perjury penalty” if the accused never testified.
Right?
Also, I beleive prosecutors can be liable if they knowingly make false statements, or ask someone to commit perjury, even if they aren’t under oath themselves. A prosecutor isn’t under any threat of liability if they merely claim that someone commited a crime and the jury aquits. You have to prove misconduct by the prosecutor. I’m sure our resident lawyers will chime in on this.
True. A prosecutor can commit perjury by, for example, swearing out an affidavit (which is under oath)–such as an affidavit regarding the source or authenticity of documents being offered in evidence–that contains factual statements that the prosecutor knows are false. And like any lawyer, a prosecutor who lies to the court can be held in contempt, sanctioned, or disciplined for an ethical violation, although perjury is not involved unless the prosecutor was under oath. And like any citizen, a prosecutor cannot lawfully ask that a witness offer perjurious testimony, although again the crime is not perjury itself but rather “suborning perjury” or “obstruction of justice.”
OK, I realize that the real world and the realm of law are often far distant, but is there some reason why this statement from a judge–that s/he is sentencing a defendant for a crime for which that defendant was not convicted–guarantee a reduced sentence on appeal?
The general rule is that a judge may consider a wide variety of factors in sentencing, and his sentencing decisions are reviewable under an abuse of discretion standard. That’s a wide bar to overcome.
A judge does not need a jury verdict of perjury to find that the accused exhibited a lack of remorse, shown by his false testimony. Once the jury has found the accused guilty, the judge can rely on that verdict in treating the defense testimony as false for the purposes of sentencing.
There’s nothing about that statement from the bench that would be automatically appealable, certainly nothing that would survive an abuse of discretion review.
- Rick