So when you posted this, you were knowingly posting falsehood.
Color me shocked.
Regards,
Shodan
What was untruthful about that post? I said they impeached him over a blow job. Politically that’s an accurate statement. Don’t be such a fucking sophist.
I think it a marvelous bit of irony that, in the same post where you’re defending the former First Sophist, you’re whining about sophistry from your political opponents. Care to define “is” for us?
At any rate, I’ll pick up your reply to me a bit later, when I can blow the dust off the research I did on this question back as a young law student. IIRC, “materiality” for purposes of perjury is established at the time of the questioning, and not as events later unfurl.
They “get” it just fine – that’s why they don’t like it…
I am pretty sure that there is no process for deciding materiality during discovery, is there?
If so, perhaps you can provide a cite for a finding by Judge Wright during the deposition that the Lewinsky questions were material?
No, it would be determined during the perjury prosecution trial, either as an evidentiary matter (do we allow in evidence that the matter turned out to be immaterial?) or as a jury instruction (jury instructed as to when materiality is to be determined). At any rate, there is case law developing this point, IIRC, although I can’t check until tonight.
Not as a replacement for what Dewey promises, which should be very interesting reading IMO, but as a personal-experience observation: we were sued a couple of years ago relative to an auto accident. The set of questions propounded by plaintiff’s attorneys during discovery were incredibly invasive. I discussed this with the attorney the insurance company retained in my behalf, he pointed out the possible relevance of four of the seven I felt unduly invasive of my privacy and not relevant (e.g., level of education attained), and advised me to decline to answer the other three, responding with a formula requesting that plaintiff show relevance to the case at hand. We didn’t hear another word from them. That’s just a layman’s FWIW.
I’d love to find out. Airman clearly was blowing smoke up our butts with his claims about what woulda happened to him if he’d done the same thing as Clinton, but just because he was lying doesn’t mean he was incorrect: it’s perfectly possible, for all I know, that people HAVE been thrown in prison for lying about an irrelevant fact during a civil deposition. I’d really like to know.
Daniel
OK, quick bit of background: in the fall of 1998, I was in my third year of law school. One of the requirements for graduation was taking a seminar course and writing a paper associated with the seminar. Given the events of the day, UT offered a seminar on the Independent Counsel statute, taught by a recently elected state appellate judge. I took the course, and, given the headlines, elected to write about the perjury angle in the Clinton matter. My paper was written after the Starr Report (well, it came out early in the semester, anyway), but before the House voted out articles of impeachment (the Judiciary Committee was holding hearings as finals came and went).
Anyway, I’d rather not try to edit the perjury section of the paper into a message-board friendly format, so here’s the abbreviated summary of some of the key perjury cases I cited in the paper:
United States v. Gaudin, 515 U.S. 506 (1995) – establishes conclusively that materiality is a jury issue in perjury prosecutions.
Barnes v. United States, 378 F.2d 646 (5th Cir. 1967) – perjured testimony need not affect the ultimate issue of a trial in order to be prosecuted.
United States v. Slutzky, 79 F.2d 504 at 506 (3rd Cir. 1935) – ditto.
Blackmon v. United States, 108 F.2d 572 at 574 (5th Cir. 1940) – mere relevance sufficient; anything asked on cross examination may be considered material.
United States v. Allen, 131 F. Supp. 323 at 326 (E.D. Mich. 1955) – actual effect of perjured testimony does not impact prosecution.
United States v. Masters, 484 F.2d 1251 at 1254 (10th Cir. 1973) – ditto.
United States v. Larocca, 245 F.2d 196 at 197-98 (3rd Cir. 1957) – subsequent disposition of case does not impact perjury prosecution.
United States v. Stone, 429 F. 2d 138 at 140 (2nd Cir. 1970) – Materiality “must only be established as of the time the witness’ answers were given.”
NOTE: these cases were good law as of fall 1998, but I haven’t Shepardized them since, so reader beware. It’s also been seven years or so since I wrote it, so don’t expect me to have the details of the cases at my fingertips.
If anyone wants to read the paper to see all my glorious footnotes, give me your email and I’ll send you a copy. I’d have written it a bit differently now that I’m a mite older and wiser, but I still think the conclusions are valid. So did my prof; I got an A.
Ok, so whether a “lie” is material is for the jury to decide?
Understood. Also, not applicable in the Clinton case, since there never was a trial.
This sounds like it pertains to trials, not discovery. Clinton was not asked the sex question on cross, nor was there any establishment of “relevance” that I’m aware of.
No argument here.
I should hope not.
Now I’m confused. I thought materiality was a question for the jury. What does it mean if there was no establishment of materiality during discovery?
I appreciate the research but I wouldn’t mine hearing some elucidation on how this pertains to the Clinton deposition.
The principle stated is equally applicable to pretrial discovery situations.
You miss the point, which is that materiality must be looked at from the time the question was asked. A jury in a perjury trial will be instructed, when considering whether a piece of perjured testimony is material, to consider whether it was material at the time it was asked, without regard for subsequent events.
I’ve sent the full paper to your board-listed email; it gives more detail on some of the cases. Obviously I’m not going to go reinvent a bunch of years-old research over this – if you want to open up a Lexis or Westlaw account, feel free; I’m not going to run up charges over a message board discussion.
Ok, thank you. I understand it now. I wasn’t trying to be a wise ass with that question, I was genuinely confused. You’ve cleared that up, so thanks.
I appreciate you sending me the paper but all I was really asking for was an off the cuff opinion on whether a jury would have been likely to find BC guilty of perjury (or whether Joe Citizen would have been likely to go to prison under the same circumstancs). It was not my intention to ask you to do any more research or make a comprehensive argument. I respect your opinion at face value.
Thanks again for the paper.
I also note the following footnote from Judge Wright’s contempt order against President Clinton:
- In so ruling, and contrary to numerous assertions, this Court did not rule that evidence of the Lewinsky matter was irrelevant or immaterial to the issues in plaintiff’s case. Indeed, the Court specifically acknowledged that such evidence might have been relevant to plaintiff’s case and, as she argued, “might possibly have helped her establish, among other things, intent, absence of mistake, motive and habit on the part of the President.” 993 F.Supp. at 1222 (citing Fed.R.Evid. 404(b), 406). At the time, however, the court anticipated that the President and Ms. Lewinsky would both deny a sexual relationship and that plaintiff would attempt to rebut their denials with extrisnic evidence that could be inadmissable under Red.R.Evid. 608(b). To stay discovery so that plaintiff could explore such evidence would ahve required extensive additional delay. In that regard, this Court made the decision to disallow discovery as to Ms. Lweinksy and to excluded evidence concerning her from trial, not because the Court considered such evidence to be irrelevant or imaterial, but because is admission would frustrate the timely resolution of this case and cause undue expense and delay, the substantial interests of the Presidency militated against any undue that would be occasioned by allowing plaintiff to pursue the Lewinksy matter, and the government’s criminal proceedings (to which this Court generally must yield in civil matters) could be impaired and prejudiced were the Court to permit inquiry into the Lewinksy matter by the parties in this civil case. Id at 1219-20. The Court noted that evidence of the Lewinksy matter, even assuming it to be very favorable to plaintiff, was “not essential to the core issues in this case of whether plaintiff herself was the vicitim of quid pro quo harrassment, hostile work harrassment, or intentional inflicetion of emotional distress.” Id. at 1222 (emphasis in original).
Bolding mine, all else as in original.
I have a scanned copy of the order if anyone wants to see it. Dio, I assume you do and am emailing it to you.
Well, goodness, that’s a complex question. Do I think a reasonable jury could have found him guilty? Yes. Are they likely to do so? Probably not, and not because he wasn’t actually guilty, but because juries are funny beasts. I thought they had a pretty good case against OJ, after all.
Thank you again but if the question of materiality is one to be decided by a jury then the fact that a judge did not make an a priori finding of immateriality during discovery does not bind the jury to find that it was material, does it?
Fine (even though don’t agree that he was guilty) but if the defendant were not the President of the United States (which would obviously be so atypical and anomolous that normal predictions and expectations would go out the window) but say, a bank manager, is it actually likely that he would even be prosecuted, much less do time?
To cut to the chase, Airman Doors said that if he had done the same thing as Clinton, he would have gone to jail. In your experience, Dewey, is AD’s statement a fair reflection of reality?
No, but I think the hightlighted language lends credence to the notion that a finding of materiality is eminently plausible.
Depends entirely on the prosecutor and the composition of the jury pool. I certainly think it’s possible, and that the arguments in favor of conviction have merit.
And not a bit of that discussion is actually relevant to Clinton’s impeachment, except to illustrate the extent to which its supporters have to reach for cover.
Amazing how no prosecutor has thought the alleged criminal matter worth pursuing since the failure of the political effort, ain’t it?
Well, said political effort can be properly understood as the impeachment. which played out in 1998. Clinton did not resolve the charges with the independent prosecutor until January of 2001, at which time he paid a fine and surrendered his law license in exchange for criminal proceedings being dropped.
So your assertion that no prosecutor found the matter worth pursuing after the political effort failed is frankly mistaken.
Actually, it’s absolutely relevant. Airman’s claim is that if he’d done the same thing, he’d be in prison–presumably because he lacks Clinton’s connections. It’s no rebuttal to this claim to point out that Clinton isn’t in prison.
Thanks for the information, Dewey. It’s probably my ignorance talking here, but I’m still unsure if you’ve given an example of a case in which someone lied about a tangential detail in a civil deposition and faced prison time for doing so, however.
Daniel
MM, where did you get the idea that Starr’s campaign was not part of the political effort?