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.
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.
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
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.
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.
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
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!
Yeah, you’re right.
Ok, OK, I meant 5th. Sheesh. And it was a Dictionary used by Federal Counsel.
I guess that “dictionary” used by “Federal Counsel” was printed before US v. Grayson, 438 U.S. 41 (1978).
I happened to be reading Grayson because it’s also the case that addresses Otto’s gripe.
- Rick
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”.
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?
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.
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?
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
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.
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
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
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.