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!
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.
By the way, I’m running for Sexual Congress on the Pajama Party ticket.
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.
In U.S. v. Dunnigan, 507 U.S. 87 (1993):
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:
They point out that this potential “chilling effect” applies ONLY to perjurious testimony:
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
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.
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.
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.
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.
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.)
Assume you actually did take the stand and commit outright perjury about a crime you did. There is STILL a difference between committing a crime and being convicted of it.
In the US:
To be convicted of a crime, you must prove beyond a shadow of a doubt that you did the crime.
You can NOT use the conviction in the first trial to prove the guilt of the perjury - both the judge and the jury are WITNESSES to the crime, so are by definition prejudiced.
To be convicted of perjury for denying a crime, you must then go through an entirely DIFFERENT trial, and then they must prove that what you said in the first trial was a lie beyond a shadow of a doubt. The Shadow of a Doubt is hard to deal with, especially with social crimes such as perjury, blackmail etc. (I was mistaken, It was a gift)
This is expensive, and often not worth the trouble. In addition, it is not a forgone conclusion.
There are a LOT of “Clintonesque” techniques you can use:
You can claim that 1) Yes you were in fact guilty of murder, but your testimony was asking about did you use that knife to kill him, when in fact you used another knife.
You can claim that 2) you were mistaken about the night in question - as gang member you committed so many rapes and murders, you got that one confused with another.
You can claim that 3) you meant something entirely different than what the Jury thought. When you said you never touched him, you meant you were wearing gloves.
etc. etc. etc.
More importantly, it is FAR more likely for a COP or other prosecution witness to lie than a guilty defendent.
Why? Because 1) the guilty Defendent knows what really happens, and will avoid saying something that the prosecuter might have direct evidence against, even if he actually takes the stand, which is rare.
2) the cop and other prosececution witnesses often may not have seen everything they think they saw, or might be stretching the truth a tiny bit to convict someone they know is guilty. They realize they are not on trial and will have almost no risk of perjury trial. They know people will believe them, and have nothing to lose. Because of the nature of the situation, they are FAR more likely to be mistaken about what actually happened then the actual criminal.
Oh, Lord. It never ends.
Tarkin, there are possibly more errors in the post you’ve made than Britney Spears has imitators. Let’s go through some of the more outrageous mistakes you’ve made, shall we?
Well, actually the standard is “Beyond a reasonable doubt.” “Shadow” sounds a bit restrictive to me, and it’s not how juries are instructed.
It’s true that a second trial is required to obtain a conviction for perjury. (As discussed extensively above, it’s not required for the judge to use the perjury as a sentencing aggravator).
But the prosecution would not necessarily be required to relitigate the underlying issues, due to the doctrine of collateral estoppel. In other words, if you testified that you were at home watching “Bonanza” reruns, and the clerk at the store testified that you were the one that robbed him at knifepoint, and the jury found you guilty, the prosecution at your second trial does not need to recall the clerk. The fact that the first jury found you guilty can simply be introduced as evidence, and the second jury can use that, and nothing more, to find you guilty.
It’s not definitive. As you suggest, at your perjury trial, you could take the stand and say you were simply mistaken – the “Bonanza” marathon was actually the previous night, and you had no intent to lie under oath. If the second jury believes you, you’re safe.
But the key element here is that the fact of your original conviction means you are estopped from challenging that finding at the second trial – you can offer excuses galore for the lie, but you can’t deny the guilt of the crime.
Cite? Cite? Cite?
More to the point… no. You’re wrong. Self-serving and perjurious testimony is a hallmark of criminal trial practice. Trust me when I say that I have some experience in this area, and defendants lying on the stand is very common. In your trenchant analysis above, you fail to note a key fact: the accused is highly motivated to avoid conviction, and will often say whatever he thinks will be believed. The cop has a far less strong motive to lie; at the end of the day, he gets his paycheck regardless of the conviction or acquittal of a defendant.
Not to say that cops are incapable of lying - of course it happens. But the vast majority of lies under oath in criminal practice are told by defendants, not by the police.
- Rick
**I fear I have to ask for a Cite on this assertion. It is my understanding that the State would have to relitigate the issue of the defendant’s guilt in the second trial for perjury. I could find no case that allowed the State to use the prior conviction of a jury as the sole proof to establish the defendant’s guilt for perjury. I think collateral estoppel would not apply because the issues in the second trial (did the defendant lie under oath) were not necessarily litigated in the first trial. Although there is certainly an indication the first jury disbelieved the jury, I could find no case where the State only submitted the defendant’s prior testimony and the jury verdict as proof of perjury. I know for a fact that a jury’s prior acquittal is not a bar for the State to pursue perjury charges, and I can’t imagine that it would work the other way for the State.
Hamlet: all Bricker is saying is that collateral estoppel would bar relitigating the question “did the defendant perform a criminal act?” It does not bar litigating the question “was the defendant’s statement a lie?” or “did the defendant intend to mislead when he made the statement?”
In short, it prevents the defendant from saying “I did not rob the liquor store.” It does not prevent the defendant from saying “I did not lie about the robbery” or “my false statement was not intended to decieve.”
Nowhere did I say that the first conviction could be the sole proof for perjury at the second trial. Indeed, what need would there be for a second trial if that were the case?
If the defendant’s testimony in the first trial was such that, in order to convict, the jury must have disbelieved him, then the state is entitled to the irrebutable presumption that the statement was false. They don’t have to re-present their opposing witnesses. That’s the whole point of collateral estoppel - as to a particular issue, with identical parties, a party need to not relitigate an issue when it’s been fully and finally litigated in another action.
The second jury can still consider mistake, duress, lack of intent, whatever defenses the accused wishes to raise in the perjury trial.
If the issue was NOT litigated in the first trial - that is, if the particular facts were such that the testimony could have been true and the jury still convicted - then of course collateral estoppel does not apply.
A jury’s acquittal is not a bar for the State to pursue perjury charges because it doesn’t conclusively demonstrate the defendant told the truth. The jury may well have felt that the defendant lied, but that the state merely failed to meet its burden. An acquittal does not represent a full and final determination that the accused’s testimony was not true.
But a conviction (and subsequent appeals, etc) MAY POSSIBLY represent a full and final determination that the defendant lied. Admittedly, it’s fact-specific; this will be true if and only if there is no way to reconcile a guilty verdict with truthful defendant testimony.
If you’re still unconvicned, then I’ll see what I can dig up in the way of citation. I have hit Westlaw more today than in the past three months combined!
It would be nice if I could edit my own posts and fix places where I sound like an idiot.
When I said:
I meant that no more evidence of your lying under oath is needed; that evidence would make a record on which a reaosnable jury could find guilt on THAT ELEMENT.
I did NOT mean that this created an irrebuttable presumption of perjury; the prosecution would have to prove each element beyond a reaosnable doubt.
Thanks for the re-explanations DCU and Bricker. Although I have a better handle on the issue now. I’m still not sure that the prior conviction, even if the defendant clearly testified in contradiction to the evidence, would be sufficient evidence to prove beyond a reasonable doubt that the defendant lied. I just couldn’t find any case or law review article (outside of a 1927 Harvard article about Res Judicata which seemed to intimate the opposite of what Bricker was saying), which stated one way or the other. I’ll see what else I can find, but I’d appreciate any cites you can throw my way Rick.
Thanks again.
Well, it certainly WOULDN’T be res judicata, because the claims are different - so I can easily see a res judicata-based claim falling flat. But collateral estoppel is an issue-based doctrine, not a claim-based one.
A quick search hasn’t found anything good one way or the other. But it occurs to be that this set of facts is not likely to be common - first because of the relative paucity of perjury charges following a guilty verdict (hearken back to the OP!) and secondly because of the natural desire of the prosecution to present additional evidence if they can. Based on this, I imagine it will be seldom that a perjury prosecution would simply rest on prior testimony and a guilty verdict.
But I’ll delve a bit and see what comes up.
Well, I can’t find any case or law review analysis that addresses collateral estoppel as a bar to a defendant accused of perjury contesting the underlying facts that made up the lie.
I can say that it’s consistent with the principal of collateral estoppel. But I can find no authority either way.
Perhaps I’ll write an article for a law review somewhere!