The background is this. I just finished serving as a juror on a minor criminal case. One of the witnesses for the prosecution was a friend of the defendant. He told a relatively unbelievable story, more in support of the defense. After he testified, an assistant DA was called, who said that during the pre-testimony interview this guy changed his story four times, ending with one different from his testimony in court. The defendant then testified in line with the now discredited testimony of this witness. The prosecutor said that the defendant and this witness spoke together that morning.
This guy was clearly lying, and both the prosecution and defense basically said so in their closing statements.
My question: what penalty was this guy subject to? How often is it used. I suspect the penalty is greater than that for the defendant in this case (we found him guilty.) How often do witnesses lie, and how often is anything done about it?
Well, technically it’s pejury. But, it’s both tough to prove and rarely prosecuted. It’s extremely unlikely that they’d bother going after the guy unless his testimony was relevant and dispositive. That is, if some guy tells a bald-faced lie that helps acquit a guilty defendant (or convict an innocent one), there’s a decent chance he’ll be prosecuted. But if it ends up not affecting the outcome, it’s rare that anything’s done. Also, it has to be super-clear. Anything that can be explained as poor memory, confusion, nuance, etc. is tough to prove.
It’s just as troubling to me that the prosecution put someone on the stand who had already changed his story four times. This guy was, at best, an unreliable witness. Suppose he had stuck with the last story he had told the prosecution in pre-testimony interviews - is that story really the truth? I would hope that the defense would have had access to the interviews so they could impeach the witness in that case.
The defense was told immediately when the guy changed his story. He was an important witness, since he was one of four people on the scene - if he hadn’t testified, we’d have wondered why. The story change happened literally minutes before his testimony, so perhaps they decided to go with whatever he said.
We’re not talking Clarence Darrow level law here - it turns out this was the prosecutor’s first case. I guess they thought it was a slam dunk, which it pretty much was.
My point is not that his story changed on the witness stand, but that it had already changed four times before. Did the defense know about that before the trial began? It sounds to me like the prosecution interviewed the witness until they got the story they wanted out of him, then had to patch things up when the witness changed his story yet again.
Perjury is seldom prosecuted and, as Opus1 wrote, usually only if it’s very, very clear that the defendant has perjured himself, and if it made a real difference in the trial. In Ohio, perjury is a felony of the third degree, punishable by one to five years in prison. I prosecuted a woman once for flagrantly and repeatedly lying to help her husband during his trial (long story), but the judge dismissed the case after saying something to the effect of “Well, of course she’s going to lie to help her husband!” Maybe so, but I’d never seen anyone do it that baldly, and didn’t think I could just let it slide.
The prosecution didn’t know about it before the trial began. The trial was underway when this happened, and the defense was notified immediately.
It appears that the witness and defendant spoke before this. The witness ’ testimony was not the last story he told the prosecution, remember, but an earlier one, do doubt cooked up during the consultation with the defendant. It had some problems, and I think the DA confronted the witness about these, which prompted the change in story. This witness was a few transistors short of a CPU, so I think it is a bit much to expect him to lie convincingly. The defendant and witness ended up telling the same story, which was almost laughingly unconvincing.
Anyhow, I think I got my answer. When the penalty for perjury is much greater than the penalty for the crime, it is pretty much ignored. That makes sense, actually. I don’t know what the penalty for this crime is - we weren’t told, of course, and I doubt the sentencing hearing has been scheduled yet. This is not something that will show up in the paper.
BTW, in California you can talk about the case immediately after you are done, but you can’t accept any money for talking about it for 90 days.
As luck would have it, we’re nearing trial on a case involving perjury.
Background: guy was tried for bail jumping. He skipped town (the state, in fact) with his girlfriend and holed up across the border. She testified during the trial that they couldn’t get back for his court date because of heavy snow. Guy was acquitted, because we had no handy way to rebut the testimony about the weather in another state.
So, we now know thanks to weather records that there was no snow on the ground at the time she testified there was. We have those records, the trial transcripts, and sworn statements from all twelve jurors that they would have voted to convict if they had known that it hadn’t snowed. Armed with this, we had her indicted for Aggravated Perjury (“aggravated” because it occurred during an official proceeding and was material), which in Texas is a third degree felony, carrying a penalty of between 2 and 10 years in the state penitentiary and/or a $10,000 fine. So, there’s your penalty.
Incidentally, since then the guy was put on trial again for an unrelated drug offense, for which he was sentenced to 99 years in the pen.
During the Baby M surrogate mother trial, Sue Hergenhan, while testifying for Mary Beth Whitehead, admitted she lied under oath. She could have faced a $15,000 fine and five years in prison had she not confessed.
In her book “A Mother’s Story,” Mary Beth calls her “well meaning.”
Perjury is a complicated crime. It generally has to be wilful, knowing and material. And, there are circumstances where a simple but flat out lie by the defendant is acceptable= “I didn’t do it!”.
Knowing= you usually have to know you’re lying. If you treally thought it was noon, as your watch was wrong, but it really was 1PM, it wouldn’t be perjury.
Material= if you testified you were eating a tuna sandwich for lunch at Noon during the bank robbery, but it turned out to be a ham sandwich, this likely wouldn’t be perjury either.