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Old 04-01-2003, 03:16 AM
mcbiggins mcbiggins is offline
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Perjury for the guilty?

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?
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Old 04-01-2003, 05:57 AM
Bricker Bricker is offline
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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
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Old 04-01-2003, 05:59 AM
Boyo Jim Boyo Jim is offline
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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.
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Old 04-01-2003, 06:27 AM
Desmostylus Desmostylus is offline
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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".
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Old 04-01-2003, 07:29 AM
Bricker Bricker is offline
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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
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Old 04-01-2003, 09:37 AM
brianmelendez brianmelendez is offline
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Quote:
Originally posted by Desmostylus
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.
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.
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Old 04-01-2003, 09:49 AM
Desmostylus Desmostylus is offline
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Different jurisdictions, Bricker. Sentencing theory is not a simple topic.
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Old 04-01-2003, 09:56 AM
Desmostylus Desmostylus is offline
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Please note, Bricker and brianmelendez, that I'm Australian, and the OP is Canadian?
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Old 04-01-2003, 10:08 AM
Desmostylus Desmostylus is offline
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Quote:
Originally posted by brianmelendez
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.
Well, duh.
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Old 04-01-2003, 10:33 AM
Bricker Bricker is offline
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Quote:
Originally posted by Desmostylus
Please note, Bricker and brianmelendez, that I'm Australian, and the OP is Canadian?
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?
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Old 04-01-2003, 10:56 AM
Fear Itself Fear Itself is offline
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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.
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Old 04-01-2003, 11:03 AM
pravnik pravnik is offline
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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.
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Old 04-01-2003, 11:05 AM
brianmelendez brianmelendez is offline
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Quote:
Originally posted by Fear Itself
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.
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.
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Old 04-01-2003, 11:07 AM
brianmelendez brianmelendez is offline
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Quote:
Originally posted by Desmostylus
Please note, Bricker and brianmelendez, that I'm Australian, and the OP is Canadian?
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?
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Old 04-01-2003, 11:22 AM
katie1341 katie1341 is offline
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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.
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Old 04-01-2003, 11:44 AM
Bricker Bricker is offline
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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.


Quote:
Originally posted by Desmostylus
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".
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?
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Old 04-01-2003, 12:43 PM
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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.
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Old 04-01-2003, 01:07 PM
brianmelendez brianmelendez is offline
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Quote:
Originally posted by Lemur866
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.
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."
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Old 04-01-2003, 02:24 PM
Otto Otto is offline
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Quote:
Originally posted by katie1341
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.
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?
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Old 04-01-2003, 02:32 PM
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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
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Old 04-01-2003, 03:04 PM
chula chula is offline
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I'm not trained in Canadian or Australian law, but I studied law with a fair number of Canadian and Australian lawyers, and the differences between the legal systems were so insignificant that they rarely came up. They're so similar that Canadian and Australian lawyers can generally practice in the United States without any additional legal education.
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Old 04-01-2003, 03:36 PM
DrDeth DrDeth is online now
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In the USA, in general, a simple "I didn't do it" specifically is NOT perjury. It's protected under the 4th. Now, if your story started to spread to include all sorts of details, and false accusations, then Perjury could be considered. Thus, "I didn't do it, and that scum Bill did do it, as he told me he did." could be Perjury. Read a good law dictionary.
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Old 04-01-2003, 04:06 PM
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That's not exactly correct, DrDeth. Pleading "not guilty" when you did, in fact, do it, is not perjurious, but getting on the stand and saying "I didn't do it" -- even if you say nothing else -- is perjury. The distinction is based on two reasons both previously mentioned; a plea, unlike testimony, in not under oath, and a plea of not guilty is not necessarily a statement of innocence -- it could merely be saying "Prove it.", which the prosecution does have to do in every criminal case.

--Cliffy
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Old 04-01-2003, 04:20 PM
Otto Otto is offline
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Quote:
Originally posted by Bricker
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
Man, not to get all GD here, but this annoys me to an amazing degree. I have no problem with the idea that judges have discretion. Judges should have discretion, and I totally oppose all the "three strikes" laws and "truth in sentencing" laws and mandatory minimums as violations of judicial discretion. But the idea that a judge can sit on the bench and tell a defendant "I am sentencing you to a longer term because you committed perjury" when perjury was neither charged nor convicted makes me sick. Sometimes the one-armed man really did do the crime.
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Old 04-01-2003, 04:32 PM
DrDeth DrDeth is online now
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Cliffy, sorry, but that's what I read in the Law dictionary.
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Old 04-01-2003, 04:41 PM
pravnik pravnik is offline
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Quote:
Originally posted by DrDeth
Cliffy, sorry, but that's what I read in the Law dictionary.
I think y'all are arguing a point that varies from jurisdiction to jurisdiction. Here in Texas there's currently nothing to prevent such a statement from being perjury (except a near universal reticence to prosecute for a mere statement of innocence), but a bill is currently in the legislature to make exactly that exception.
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Old 04-01-2003, 04:43 PM
Bricker Bricker is offline
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Which law dictionary was this, DrDeth? Because I assure you that Cliffy is right on the money. A statement under oath about a material fact that's false and known by the declarant to be false is perjury, even if it's a simple denial.


There is no Fourth Amendment application here at all. Perhaps you were thinking of the FIFTH Amendment.

It doesn't help you either. While it does prevent the accused from being forced to testify against himself, once the accused chooses to testify, he has no Fifth Amendment right to lie.

I'd go back and read that "law dictionary" again, if I were you.

- Rick
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Old 04-01-2003, 04:48 PM
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pravnik - I make room for the possibility of a jurisdiction carving out a statutory exception ... but it's not, as DrDeth suggested, a right "...protected under the 4th."

Nor is a legal dictionary entry likely to describe a right to lie under oath as grounded in the Fourth Amendment!
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Old 04-01-2003, 04:49 PM
pravnik pravnik is offline
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Yeah, you're right.
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Old 04-01-2003, 04:50 PM
DrDeth DrDeth is online now
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Ok, OK, I meant 5th. Sheesh. And it was a Dictionary used by Federal Counsel.
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Old 04-01-2003, 05:20 PM
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I guess that "dictionary" used by "Federal Counsel" was printed before US v. Grayson, 438 U.S. 41 (1978).

Quote:
The right guaranteed by law to a defendant is narrowly the right to testify truthfully in accordance with the oath - unless we are to say that the oath is mere ritual without meaning. This view of the right involved is confirmed by the unquestioned constitutionality of perjury statutes, which punish those who willfully give false testimony. See, e. g., 18 U.S.C. 1621 (1976 ed.); cf. United States v. Wong, 431 U.S. 174 (1977).
Quote:
There is no protected right to commit perjury. (438 U.S. 41, 55)
I happened to be reading Grayson because it's also the case that addresses Otto's gripe.

Quote:
A sentencing judge, in fixing the sentence of a defendant within statutory limits, may consider the defendant's false testimony observed by the judge during the trial.
- Rick
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Old 04-01-2003, 06:18 PM
DrDeth DrDeth is online now
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Yes, but you have to read the entire case opinion. Note that the point here is not so much that the Defendant said "I didn't do it", it is that he made up a long & convoluted story about threats, etc.

Read the dissenting Opinions & the Dec of the Appelate Court that SCOTUS over ruled, and Poteet vs Fauver. Not so black & white, now is it?

It is like I said- simply saying "I didn't do it" is protected- just like a plea of "not guilty" is- even if you're guilty as hell. (I think the wording was a "simple statement of lack of guilt") Making up a whopper is another thing altogether. Mr Grayson made up a "whopper".
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Old 04-01-2003, 08:44 PM
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Where, precisely, do you find language that supports this interpretation?

(Hint: the language of the dissent is not law. The language of an overruled opinion is not law.)

I did read Poteet v. Fauver, 517 F.2d 393 (1975).

Guess what? IT WAS OVERRULED BY GRAYSON!

Do you have any caselaw to support your position that hasn't been overruled, by chance?
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Old 04-01-2003, 09:24 PM
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By the way, I recommend putting aside your "law dictionary" and picking up a copy of Shepard's United States Reports, the S.Ct. and the L.Ed., L.Ed.2d citators.
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Old 04-02-2003, 02:26 AM
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To go back to the OP question, another reason not to take a person back for perjury is that you would risk a not guilty verdict, thus throwing doubt on the original trial. Why take a risk?
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Old 04-02-2003, 08:20 AM
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Quote:
Originally posted by DrDeth
Yes, but you have to read the entire case opinion. Note that the point here is not so much that the Defendant said "I didn't do it", it is that he made up a long & convoluted story about threats, etc.

Read the dissenting Opinions & the Dec of the Appelate Court that SCOTUS over ruled, and Poteet vs Fauver. Not so black & white, now is it?

It is like I said- simply saying "I didn't do it" is protected- just like a plea of "not guilty" is- even if you're guilty as hell. (I think the wording was a "simple statement of lack of guilt") Making up a whopper is another thing altogether. Mr Grayson made up a "whopper".
Re-reading this in a calmer and more reflective state of mind, I have this to add:

Merely saying "I'm not guilty," under oath may well be insufficient to support a perjury conviction. This is not because there is a Fifth Amendment right to make that claim, but because the claim itself is insufficently specific. It amounts to a legal conclusion, not a statement of fact. Perhaps the declarant means that the prosecution hasn't enough enough evidence to convict beyond a reasonable doubt.

Saying under oath, "I didn't kill Mrs. Jones," and nothing else, however, IS sufficient to support a perjury conviction, if it can be shown that the declarant killed Mrs. Jones and is on trial for that offense.

I stand by my derision towards DrDeth for quoting overruled case law and trying to pass it off as good law.

- Rick
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Old 04-02-2003, 08:57 AM
Desmostylus Desmostylus is offline
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Quote:
Originally posted by Bricker
I stand by my derision towards DrDeth...
- Rick
This is just unacceptable rhetoric in GQ.

Same with the crap that you directed toward me. I prefaced my comments with "IANACL". And I used the words "to some extent, there's an implicit perjury penalty"

This is not GD, this is GQ.

State your facts or polite opinions, please.
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Old 04-02-2003, 09:11 AM
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Sorry. But posting inaccurate information in GQ earns derision. What can I say? The rhetorical effect of my response - I hope - derived from the accurate correction of inaccurate info.

I certainly don't think rhetoric is inappropriate in GQ, especially when there are conflicting answers to a question that may be resolved factually. If the reader is to choose between conflicting answers, then some rhetoric is called for.

Posting speculation or outright inaccurate answers is uncalled for in GQ, in my view. My rhetoric is not misplaced.

- Rick
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Old 04-02-2003, 09:12 AM
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You're wrong, Desmostylus. In the last few months (although less in the last several weeks), GQ has been plagued by a gaggle of people without legal training answering legal questions incorrectly. This is the one thing for which derision is perfectly appropriate in GQ -- if this really is going to be the greatest and most catholic source of factual information on the web, then when people talk out their ass they need to be scolded for it.

--Cliffy
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Old 04-02-2003, 09:36 AM
Desmostylus Desmostylus is offline
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Okay, Bricker and Cliffy, that's fair enough.

It's been more than twenty years since I've studied sentencing, and as I've already said, I've never used it.
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Old 04-02-2003, 09:49 AM
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No problem - and resolved, thankfully, without recourse to a Pit thread in which we accuse each other of engaging in sexual congress with various birds, rodents, and draught animals!
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Old 04-02-2003, 10:05 AM
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Quote:
Originally posted by Otto
But the idea that a judge can sit on the bench and tell a defendant "I am sentencing you to a longer term because you committed perjury" when perjury was neither charged nor convicted makes me sick. Sometimes the one-armed man really did do the crime.
It not only makes me not-sick, but also makes me very happy. Believe it or not, at sentencing, the judge can consider all kinds of evidence about the defendant that were uncharged or unconvicted. Currently pending cases, prior bad acts, and uncharged crimes can all be used in sentencing by the judge, if they are proved up (note: the standard of proof at sentencing and the rules of evidence are a lesser standard than beyond a reasonable doubt.) To tell a judge that he cannot consider anything about the defendant that hasn't been proven beyond a reasonable doubt is counterintuitive to the role of sentencing. Especially if that thing is the fact the defendant lied through his teeth while under oath. Not allowing a judge to use that in aggravation is just silly.
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Old 04-02-2003, 10:47 AM
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By the way, I'm running for Sexual Congress on the Pajama Party ticket.
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Old 04-02-2003, 11:10 AM
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No, Bricker, Poteet vs Fauver wasn't overruled in Grayson- the only thing that was overruled in Grayson is the lower Appelate court's decision- which did quote Potteet, true, but there is nothing in SCOTUS's ruling that says "we also overrule Poteet"- as the facts & circumstances in each were different. Sure, the cases are similar, and Grayson was from the highest Court, so Grayson is a better cite. But if the facts & circumstances were closer to Poteet than Grayson, then Poteet would still be good case law. If I was a sentancing Judge, and the defendant pulled a whopper in my Court, I'd feel secure in making the sentance stiffer.

You found a case that was EXACTLY like I said- "making up a long story or whopper in an attempt to prove ones innocence CAN be grounds" (well, it still wasn't PERJURY in Grayson, but SCOTUS did allow extra sentencing for "lying", so it's close). All you did was prove my point.

Now if you will go back & read the other cases & dissenting opinions in Grayson, you'll see that the Judges are talking about certain rights the defendant has to testify on his own behalf- which could include a certain amount of untruth.

Now, then- find me a PERJURY case where the defendant was found guilty for a SIMPLE declaration of lack of guilt- which also would include "I didn't kill Mrs. Jones". That was my statement. When you find such a case (which wasn't overturned on appeal, mind you!), then I'll retract my statement. Until then, all your Cite has done was prove my statement correct.
  #45  
Old 04-02-2003, 11:34 AM
Bricker Bricker is offline
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In U.S. v. Dunnigan, 507 U.S. 87 (1993):

Quote:
At respondent's federal trial for conspiracy to distribute cocaine, the Government's case in chief consisted of five witnesses who took part in, or observed, her cocaine trafficking. As the sole witness in her own defense, respondent denied the witnesses' inculpatory statements and claimed she had never possessed or distributed cocaine.
Now, it's true that her testimony was more than a simple "I didn't do it." But not by much: she denied all criminal acts attributed to her; she admitted going to Cleveland with another convicted dealer once, but claimed it was for an innocent purpose, not to buy or sell cocaine. She denied knowing that cocaine was brought into or sold from her apartment.

It's hard to imagine a more on-point set of facts than these. After all, it defies imagination to picture a defendant merely taking the stand and saying, "I didn't do it," without at least some exposition. If nothing else, the mere taking of the stand exposes the accused to cross, and it was on cross that some of the additional story was brought out.

In any event, Dunnigan was found guilty, and the judge found for sentencing purposes that she had commited perjury, and the Supreme Court upheld that determination. They noted:

Quote:
Respondent cannot contend that increasing her sentence because of her perjury interferes with her right to testify, for we have held on a number of occasions that a defendant's right to testify does not include a right to commit perjury. Id., at 173; United States v. Havens, 446 U.S. 620, 626 (1980); Grayson, 438 U.S., at 54 . Nor can respondent contend 3C1.1 is unconstitutional on the simple basis that it distorts her decision whether to testify or remain silent. Our authorities do not impose a categorical ban on every governmental action affecting the strategic decisions of an accused, including decisions whether or not to exercise constitutional rights. See Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978); McGautha v. California, 402 U.S. 183, 216 -217 (1971); United States v. Knox, 396 U.S. 77, 82 -83 (1969).
They point out that this potential "chilling effect" applies ONLY to perjurious testimony:

Quote:
Of course, not every accused who testifies at trial and is convicted will incur an enhanced sentence under 3C1.1 for committing perjury. As we have just observed, an accused may give inaccurate testimony due to confusion, mistake, or faulty memory. In other instances, an accused may testify to matters such as lack of capacity, insanity, duress, or self-defense. Her testimony may be truthful, but the jury may nonetheless find the testimony insufficient to excuse criminal liability or prove lack of intent.
In such cases, the court says, punishment for testifying would be completely inappropriate. But when the accused testifies and lies, even when the lie is essentially a simple denial of wrongdoing, a finding of perjury is appropriate.

- Rick
  #46  
Old 04-02-2003, 12:27 PM
Hamlet Hamlet is offline
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I think the doctrine in question is the "Exculpatory no" doctrine which, at one time, allowed a person to not be prosecuted for false statements if it was a simple denial of the crime. The exculpatory no doctrine was accepted (albeit in different forms) in many different federal circuits. SCOTUS, in an opinion by Justice Scalia, completely rejected its use in federal prosecutions in U.S. v. Brogan, 118 S.Ct. 805 (1998). In a strongly worded smack against certain circuits, Scalia said:
Quote:
In sum, we find nothing to support the "exculpatory no" doctrine except the many Court of Appeals decisions that have embraced it. While communis error facit jus may be a sadly accurate description of reality, it is not the normative basis of this Court's jurisprudence. Courts may not create their own limitations on legislation, no matter how alluring the policy arguments for doing so, and no matter how widely the blame may be spread. Because the plain language of 1001 admits of no exception for an "exculpatory no," we affirm the judgment of the Court of Appeals.
Although Brogan dealt only with Section 1001 of the Federal Code, which made it a crime to make false statements to federal agents, I could find no persuasive authority that would allow the "exculpatory no" doctrine to now be used in perjury cases.
  #47  
Old 04-02-2003, 12:30 PM
Random Random is offline
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Quote:
Originally posted by Cliffy
You're wrong, Desmostylus. In the last few months (although less in the last several weeks), GQ has been plagued by a gaggle of people without legal training answering legal questions incorrectly. This is the one thing for which derision is perfectly appropriate in GQ -- if this really is going to be the greatest and most catholic source of factual information on the web, then when people talk out their ass they need to be scolded for it.

--Cliffy
Agree, and hope you are right about the flow of misinformation diminishing in recent weeks. If so, I think the constant bluntly-stated challenges by you, me and others to such behavior may have something to do with that.
  #48  
Old 04-02-2003, 12:37 PM
DrDeth DrDeth is online now
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Good Cite! However, again, the Defendant told far more lies that a simple "I didn't do it"- quote:"...contradicted respondent on SO MANY FACTS..." (emphasis mine) is a telling line. Not just one "fact"- "so many" facts. Also note their general statements that Perjury should be "part of some greater design to interfer with the Judicial Procedure", and that a "court enhancing sentances as a matter of course whenever the accused takes the stand and is found guilty" is a no-no. Which is exactly what the OP asked, I think- no, Perjury cannot simply be charged as a "matter of course" if the "Defendant takes the stand and is found guilty". Dunnigan tried by her testimony to mislead the jury, "interfer with the Judicial Procedure", and in general lied in "so many facts" that indeed, it WAS perjury. But note also- the fact that such cases GET TO SCOTUS in the first place is solid evidence that the point is not "open & shut"- SCOTUS doesn't even hear those kids of cases.

So the case is a good one, and bolsters your argument- but hardly to the point of "even when the lie is essentially a simple denial of wrongdoing".

However, this is also a 1993 case, and my research was several years ago. It is clear the SCOTUS has been getting more & more strict on the "perjury by defendant" idea (and that the lower Courts are MUCH more liberal on this), and it is not impossible that a future case could indeed make a simple denial into perjury. SCOTUS does seem headed in that direction, I'll grant you. Of course, I hope that simply *pleading* "not guilty" will ever become grounds for Perjury. But with THIS Court, you never know.

So- I agree that SCOTUS is getting CLOSER to: "a simple denial of guilt" being perjury. I don't think that they have gotten there yet, but I'll also admit they don't appear far from it.
  #49  
Old 04-02-2003, 12:49 PM
DrDeth DrDeth is online now
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Quote:
Originally posted by Hamlet
I think the doctrine in question is the "Exculpatory no" doctrine which, at one time, allowed a person to not be prosecuted for false statements if it was a simple denial of the crime. The exculpatory no doctrine was accepted (albeit in different forms) in many different federal circuits. SCOTUS, in an opinion by Justice Scalia, completely rejected its use in federal prosecutions in U.S. v. Brogan, 118 S.Ct. 805 (1998). In a strongly worded smack against certain circuits, Scalia said: Although Brogan dealt only with Section 1001 of the Federal Code, which made it a crime to make false statements to federal agents, I could find no persuasive authority that would allow the "exculpatory no" doctrine to now be used in perjury cases.

Indeed, that was the expression used "exculpatory no", now that you mention it. And it is telling that it is several years old, and was used in "Federal Prosecutions". This would seem to be the source of my info. Scalia made his ruling in 1998.

However, it appears it is now out of date- but still was commonly held/used at that time. Thus, it seems I relied upon old case law & and an old procedure guide. These appear to have been overruled by a strict SCOTUS. Still, the ruling in Dunnigan isn't quite as "black & white" as Bricker makes it out to be.
  #50  
Old 04-02-2003, 12:54 PM
Bricker Bricker is offline
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Quote:
Originally posted by DrDeth
So the case is a good one, and bolsters your argument- but hardly to the point of "even when the lie is essentially a simple denial of wrongdoing".

However, this is also a 1993 case, and my research was several years ago. It is clear the SCOTUS has been getting more & more strict on the "perjury by defendant" idea (and that the lower Courts are MUCH more liberal on this), and it is not impossible that a future case could indeed make a simple denial into perjury. SCOTUS does seem headed in that direction, I'll grant you. Of course, I hope that simply *pleading* "not guilty" will ever become grounds for Perjury. But with THIS Court, you never know.

So- I agree that SCOTUS is getting CLOSER to: "a simple denial of guilt" being perjury. I don't think that they have gotten there yet, but I'll also admit they don't appear far from it.
Even with my case authority, and Hamlet's excellent commentary on the exclupatory no, this is as far as you're willing to bend?

Well, as I suggested before, I cannot conceive of a case with the precise set of facts you seem to require for concession ever existing.

What you're asking for is a defendant that takes the stand, is asked, "Did you kill Mrs. Smith?" on direct examination, answers "No," and offers no expository testimony at all apart from that, on direct or cross.

This is a scenario that is, charitably, highly unlikely. There is little value in taking the stand as an accused, unless you have some exculpatory testimony. And once the defense was made the strategic choice of testifying, the prosecution is unlikely to let the chance of forcing the witness to explain the strongest parts of the prosecution case. In other words, even in the unlikely event that an accused chose to take the stand and say only, "I didn't kill Mrs. Smith," without offering any additional story, how likely is it that the prosecution will not respond with questions designed to expose even that basic lie?

Dunnigan comes as close as any real case is likely to. Her "story" was essentially a repeated denial of the criminal accusations. She didn't invent a false alibi, accuse another of the crime, or create elaborate explanations. She merely denied each and every act of wrongdoing, with certain qualifications. ("Yes, I traveled to Cleveland, but no, I didn't buy or sell drugs there.")

I suppose we can leave it at that; you may remain convinced there's a sliver of hope for your view that a simple denial under oath is immune from a perjury finding, and it's unlikely that a fact-specific enough case will make it to appeal and change your mind.

But for the Gentle Reader who is contemplating a simple denial under oath of a crime of which he is guilty... I urge that Gentle Reader to listen to me, and not DrDeth, on this issue.

- Rick

(Actually, of course, I urge that Gentle Reader to listen to hia own attorney, licensed to practice in his particular jurisdiction, and NOT to me, since this post is not intended as legal advice or the practice of law. You are not my client, and I am not your attorney.)
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