Law question re: perjury (from Law & Order)

[dasgupta]

IANAL but I play one on TV. Or not.

I’ve got a legal question prompted by an old Law & Order I saw last night. It’s a long situation, so stay tuned for the question.

A man was convicted of murder, but his wife was going to testify in his behalf and give him an alibi. Under examination by the cocky defense attorney, she said he was home all night. Once Jack McCoy started grilling her, she apparently broke and, after hurling insults at her cheating husband, admitted he wasn’t there that night. In chambers, the judge denied defense a mistrial, but granted a re-examination.

Under this re-examination, he got the wife to admit that she hated her husband for all the cheating and would do anything to get back at him. She said she was lying to McCoy, and with much sobbing, admitted her husband was with her all night – thus going back to her original testimony. McCoy immediately called for chambers.

So there we are in chambers, husband, wife and attorney all looking smug. The wife wasn’t upset a bit. It turns out that they knew the jury would think she was lying to protect her husband, but they’d believe her new testimony if they thought she lying only to get back at him. Seems defense bastard wasn’t as stupid as we thought!

So, McCoy and his cute ADA (I forget which one) say they’ll press her with perjury. Wife basically says “Prove it.”

So, if you’re still here… onto the questions!

We didn’t see the judge in this last scene. If a judge was present, could he charge her with perjury? She was obviously lying, either way you look at it. If not perjury, then why not charge contempt of court for screwing up the trial?

If no judge was present, why can’t McCoy and ADA charge her with perjury and testify? Can another DA prosecute and use the two ADAs as witnesses? Or can McCoy prosecute and have the other present ADA as a witness? Or does counsel-client privilege take effect, even though McCoy & co. are opposing counsel.

I’m so confused! Thanks

[jgroub]

@dasgupta

We didn’t see the judge in this last scene. If a judge was present, could he charge her with perjury? She was obviously lying, either way you look at it. If not perjury, then why not charge contempt of court for screwing up the trial?

If no judge was present, why can’t McCoy and ADA charge her with perjury and testify? Can another DA prosecute and use the two ADAs as witnesses? Or can McCoy prosecute and have the other present ADA as a witness? Or does counsel-client privilege take effect, even though McCoy & co. are opposing counsel.

I’m so confused! Thanks

OK, IAAL, but IANACL (criminal lawyer), so here goes:

1. The judge couldn’t charge anyone with perjury - only an ADA can do that. (I don’t think you meant that, but your “he” was ambiguous, and needed clearing up.)

2. Yes, they can charge her with perjury, and another DA can prosecute, and McCoy and Ms. CutiePieFace-of-the-year can both testify.

3. McCoy can prosecute with Ms. CPF as his sole witness, but why do that, when you can do # 2 instead, and have a greater chance of conviction with two witnesses than with one.

More to the point with two and three, at the perjury trial, they could just read in her testimony during the first trial where she admits “I lied.”

4. No privilege is in effect. If a communication between counsel and client occurs in front of any third-party, it is not privileged.

Before anyone jumps on me, communication between an attorney, the client, and the client’s spouse still is privileged. The spouse is not a third-party. However, I once counseled a lesbian couple (where only one of the couple was a client) that the non-client partner could be subpoenaed to testify as to the conversation held, because her presence broke the privilege. Of course, she could always testify that she didn’t remember what occurred during the conversation.

Notably, perjury trials like this, although theoretically possible in most any trial where the defendant takes the stand, says “I didn’t do it,” and then is convicted, just don’t happen. Although with someone admitting under oath that they lied, it could. However, don’t forget the strong juror nullification possibilities that could happen here due to the sympathetic position of the defendant. OTOH, McCoy and Ms. CPF could both testify as to the demeanor of the defendant in chambers after “admitting” the lie.

Better than a contempt charge would be something along the lines of interfering with the administration of justice, or something of that sort. Contempt is more like saying “FU judge.”

I suspect that someone else much more well-versed in criminal law will be along to discuss the perjury issues in greater detail. (Get it? Suspect? Groan.) :wally

[C_K_Dexter_Haven]

This was, of course, the gimmick for an Agatha Christie classic Witness for the Prosecution, both short story, play and wonderful movie with Charles Laughton and Marlene Dietrich

[pravnik]

The prosecution would have a difficult time proving perjury because the witness arguably recanted her testimony before getting off the stand, which is generally an affirmative defense to perjury. Here’s the Texas Penal Code provision on the matter:

§ 37.05. RETRACTION. It is a defense to prosecution
under Section 37.03 (Aggravated Perjury) that the actor retracted
his false statement:
(1) before completion of the testimony at the official
proceeding; and
(2) before it became manifest that the falsity of the
statement would be exposed.

And Colorado, just for good measure (Law and Order takes place in Colorado, right?):

18-8-508 - Perjury - retraction.

No person shall be convicted of perjury in the first degree if he retracted his false statement in the course of the same proceeding in which it was made. Statements made in separate hearings at separate stages of the same trial or administrative proceeding shall be deemed to have been made in the course of the same proceeding. Retraction is an affirmative defense.

Okay, here’s New York:

In any prosecution for perjury, it is an affirmative defense that the
defendant retracted his false statement in the course of the
proceeding in which it was made before such false statement
substantially affected the proceeding and before it became manifest
that its falsity was or would be exposed.

And an article on the history of the recantation defense in New York.

Usually making inconsistent statements is proof of perjury, but here she identified one of the inconsistent statements as false and one as true, so she may have a defense.

[jgroub]

@pravnik

Okay, here’s New York:

In any prosecution for perjury, it is an affirmative defense that the
defendant retracted his false statement in the course of the
proceeding in which it was made before such false statement
substantially affected the proceeding and before it became manifest
that its falsity was or would be exposed.

And an article on the history of the recantation defense in New York.

Usually making inconsistent statements is proof of perjury, but here she identified one of the inconsistent statements as false and one as true, so she may have a defense.

Oooh, that’s good. I would still prosecute her anyway, because her false statement did “substantially affect the proceeding.” The law review article cited says that there is little case law on this point as to what it means.

It seems to me that she’d be screwed to the wall on this one. After all, apparently she was the sole alibi witness for the defendant (was she?), so that her lie got him off. I don’t think the defense would apply. (And it is NY, not CO law that applies here.)

[Cliffy]

Of course, the defense pravnik suggests is irrelevant to McCoy’s supposed testimony that her final position on the stand was false. However, it’s a he-said/she-said situation, making it a difficult proposition without some corroborative evidence.

One other possible relevant point is that discussions in settlement conferences are not admissable in evidence. I didn’t watch the show, so I wouldn’t know to what extent this would apply, and I am not a criminal lawyer, so I don’t even know if the protection exists (or exists to the same degree) in that context. But given those caveats, it’s possible McCoy is barred from testifying due to a legal privilege other than the Attorney-Client Privilege.

–Cliffy

[Otto]

Would that be a settlement conference though? I didn’t see the ep but from the description it doesn’t sound like a settlement conference.

[Cliffy]

I’m not sure it’d count as a settlement conference, either, Otto, but I also didn’t see the show. Maybe it was.

–Cliffy

[C_K_Dexter_Haven]

Can an initial verdict be overturned, or does double-jeopardy apply?

Note that even if she gets a short prison term for perjury, that’s possibly a sacrifice she’d be willing to make.

It also raises the question of massive bribery. I bribe a bunch of witnesses to lie, they give me an alibi and get me off. The bribery is later discovered, can the initial trial be undone?

[Otto]

Well, in L&O land, there was at least one ep in which someone acquited of murder was re-tried despite double jeopardy. He had bribed IIRC a juror and the judge ruled that since he was never in any initial jeopardy of conviction DJ did not apply. Don’t know if that has a basis in actual law.

A judge has the power to set aside a jury verdict of guilty; s/he doesn’t have the power to set aside a not guilty verdict and convict the defendant.

[jgroub]

@Otto

Well, in L&O land, there was at least one ep in which someone acquited of murder was re-tried despite double jeopardy. He had bribed IIRC a juror and the judge ruled that since he was never in any initial jeopardy of conviction DJ did not apply. Don’t know if that has a basis in actual law.

A judge has the power to set aside a jury verdict of guilty; s/he doesn’t have the power to set aside a not guilty verdict and convict the defendant.

To reply to both Otto and C K (BTW what is the origin of your name - it’s pretty cool ), I think they were pulling one out of their ass on that L&O Otto mentioned. I don’t care what they did - once the trial starts, double jeopardy is in play.

(BTW, speaking of double jeopardy, too bad about KenJen tonight!)

No, C K, as soon as the trial starts, double jeopardy attaches. They have to expose the bribery etc., during the trial and request a mistrial. Once that verdict comes in, it’s too late!

[Otto]

@jgroub

I don’t care what they did - once the trial starts, double jeopardy is in play.

I think this is too blanket of a statement. IANAL but my understanding is that it is not unusual, following a successful appeal, for a convicted defendant to be re-tried for the same offense. Without getting into the minutae of specific cases, if DJ attached in those cases it would be impossible for the same unit of government to try the same defendant for the same conduct. Clearly that’s not the case. I was under the impression (not sure from whence derived) that there was some point in the trial at which jeopardy attached; if there were a mistrial prior to that the defendant could be retried but following that point the defendant was safe from further prosecution by that unit of government.

[Cliffy]

Double jeopardy applies only to acquittals, and an appeal is not an acquittal. When someone successfully appeals, that simply means that the previous guity verdict was flawed – it doesn’t substitute a “not guilty” verdict in its place. Double jeopardy just isn’t relevant. Same thing with mistrials.

Sometimes (often, even), when there’s a mistrial or the gov’t loses on appeal the gov’t will just hang it up (for instance if the critical evidence has been ruled inadmissable by a higher court) and let the defendant walk, but that’s a tactical decision based on the D.A.'s judgment that his limited resources would be better served elsewhere than in taking yet another crack at a defendant who has managed to be very slippery so far. Double jeopardy doesn’t prevent the government from losing a half-dozen appeals and then trying again; DJ only bars prosecution of a person who has been acquitted.

–Cliffy

P.S. IIRC, DJ attaches when the jury is empaneled.

[dasgupta]

@jgroub

It seems to me that she’d be screwed to the wall on this one. After all, apparently she was the sole alibi witness for the defendant (was she?), so that her lie got him off. I don’t think the defense would apply. (And it is NY, not CO law that applies here.)

She was the only alibi witness we saw.

@Otto

Would that be a settlement conference though? I didn’t see the ep but from the description it doesn’t sound like a settlement conference.

No settlement was offered, it was more of a “What the hell was that?” conference. Are those protected?

I don’t want to ruin the episode for anyone…

Apparently the jury believed that the wife was lying to get back at the husband and thus believed her last (falsified) testimony that he was with her on the night in question. He was aquitted on two accounts.

Thanks for all the answers I was a bit confused as to why McCoy didn’t run back to the office to file a suit against her.

[TheFifthYear]

@Cliffy

Double jeopardy applies only to acquittals, and an appeal is not an acquittal. When someone successfully appeals, that simply means that the previous guity verdict was flawed – it doesn’t substitute a “not guilty” verdict in its place. Double jeopardy just isn’t relevant. Same thing with mistrials.

I’m going to take small issue with that last part. Double jeopardy is relevant to a mistrial if the prosecution causes the mistrial. This is to prevent the prosecution from intentionally causing a mistrial to get a second bite at the apple when things aren’t going well.

I’ll never forget when I was in law school I was doing a mock trial. We were the prosecution, and my partner caused a mistrial in the first 2 minutes of his opening statement. Case dismissed, jeopardy attached, defendant free to go. Nice to learn that the cheap and easy way, not in the real world.

[Cliffy]

I stand corrected. Thanks, FifthYear.

–Cliffy

[pravnik]

@Cliffy

Double jeopardy applies only to acquittals, and an appeal is not an acquittal. When someone successfully appeals, that simply means that the previous guity verdict was flawed – it doesn’t substitute a “not guilty” verdict in its place. Double jeopardy just isn’t relevant. Same thing with mistrials.

Sometimes (often, even), when there’s a mistrial or the gov’t loses on appeal the gov’t will just hang it up (for instance if the critical evidence has been ruled inadmissable by a higher court) and let the defendant walk, but that’s a tactical decision based on the D.A.'s judgment that his limited resources would be better served elsewhere than in taking yet another crack at a defendant who has managed to be very slippery so far. Double jeopardy doesn’t prevent the government from losing a half-dozen appeals and then trying again; DJ only bars prosecution of a person who has been acquitted.

–Cliffy

P.S. IIRC, DJ attaches when the jury is empaneled.

There are a few limited circumstances where double jeopardy applies to a mistrial in Texas, and at least one constitutionally guaranteed jeopardy bar in mistrials that I’m aware of that applies to all federal and state proceedings . In Texas, if the mistrial was requested by the defendant, double jeopardy generally doesn’t apply and the state can usually refile. If the court declares a mistrial sua sponte (all by itself, for the non-lawyers) for a reason that is not “manifest necessity,” a subsequent retrial will be jeopardy barred. For example, in one particulary horrible murder trial a juror had a nervous breakdown and couldn’t go on, and the court decided to declare a mistrial instead of continuing with eleven jurors. Bad mistake, apparently–it looks like a subsequent trial may be jeopardy barred and this guy who had overwhelming evidence against him of committing a gruesome murder may walk. This is pretty rare, though; courts almost always find manifest necessity in declaring a mistrial, and the Texas Court of Criminal Appeals may ultimately do so in this case as well.

The constitutional guarantee that a mistrial will bar retrial due to double jeopardy comes from Oregon v. Kennedy, 456 U.S. 667 (1982), and deals with prosecutorial misconduct. It held that if a prosecutor intentionally provokes the defndant into moving for a mistrial (for example, if a trial is going badly and he wants another crack at it), a retrial will be barred by double jeopardy. This is so rare I’m not sure that any trial has been declared jeopardy barred by the decision since it was handed down. The Texas Court of Criminal Appeals, on the other hand, declared in Bauder v. State, 921 S.W.2d 696 (Tex.Crim.App. 1995) that the Texas Constitution provided more protection than the U.S. Constitution requires under Oregon. Under Texas law, a successive prosecution is jeopardy barred after declaration of a mistrial at the defendant’s request not only when the prosecutor intended to provoke a mistrial, but also when the prosecutor intentionally or recklessly failed to hand over exculpatory material under Brady v. Maryland and caused the defendant to ask for a mistrial. I have a murder case on appeal right now where the trial court granted a mistrial on the defendan’t request and ruled a retrial was jeopardy barred due to prosecutorial misconduct.