But Professor Dix makes a good point -- we need to be ready to stick it to a cop if he gets caught. Like, say, the chief of police in Houston who is under indictment this moment for pergury before the grand jury....
....that was my first thought when I read the article...too bad it wasn't the reporter's first thought.
Posts: 55 | Location: College Station, TX, USA | Registered: January 24, 2002
At the risk of looking like I am waffling on prosecution of liars, I think something needs to be said about choosing these cases.
It is dangerous to pursue perjury cases that are, essentially swearing matches. As those of you who have heard me talk about confessions, I hate swearing matches. A jury should have more than our word that one witness' credibility is better than another.
In the two cases we prosecuted for aggravated perjury, we had an objective tie-breaker:
one case had a copy of the written confession, showing the defendant's Miranda warnings and guilty words - those objectively contradicted the defendant's claim of innocence and lack of Miranda warnings;
the other case had a taped phone call in which the defendant repeatedly confessed to the molestation of a boy - objectively contradicting the defendant's claim of innocence and allegation that the tape was altered.
Defense attorneys, of course, immediately look for a worst case scenario - such as indicting a defendant for claiming he is innocent under circumstances where there is no objective evidence of guilt, only a swearing match.
I have a dream! A bill passes that gives a lying defendant immunity from perjury prosecution. It is now part of the law!
"Ladies and gentlemen, the jury in a criminal case judges the credibility of the witnesses. You can consider their demeanor, their motives, their ability to observe and relate. Now ladies and gentlemen, if a defendant in a criminal case testifies, he is the only witness the jury in that case will hear from that can lie with impunity. You can consider that too with respect to defendant's testimony."
I have had the unfortunate duty to prosecute a police officer for Aggravated Perjury. Prosecutors do prosecute police officers when justice requires.
It was not a happy nor successful experience and was a "thin blue line" problem.
One easily overlooked statute that is already out there for sensitive individuals worried about perjury by police officers is buried in Art. 38.22, Tx.C.C.P. - perjury committed in the course of determining the admissibility of a statement? Don't ask for community supervision officer.
I haven't been on the forum regularly or I would have put my 2 cents in earlier.
During voir dire, the jury was asked whether it was ever okay to lie under oath under any circumstances. The panel almost unanimously agreed that it was not. (There's one on every panel) And we discussed whether it was okay for any particular person or category of persons to lie. (Guess whose name came up) And, of course, whether it was okay for a defendant to lie. Unanimously the answer was no.
The defense called us the "belief police" to which I responded that we do not prosecute people in this country for their beliefs, or what they wear, etc.
Anyway, the jury clearly answered that it is never okay for anyone to lie under oath. Let's see how the legislature might address that! Perhaps they might address the "pergury" statute in "slience".
Posts: 172 | Location: Georgetown, Texas, USA | Registered: June 05, 2001
I know our Williamson County friends will remember Carmona v State. In that case, the defendant's attorney gave a polygraph report to the state in an attempt to show the defendant did not sexually assault a child. The report conatined some admissions by the defendant in the post test interview. the defendant testified at trial that he did not do it. The CCA held the polygrapher to be an agent of the defense attorney and therefore covered by the attorney-client privilege. Absent a specific waiver by the defendant, the evidence was inadmissible. There is indeed a right to lie.
Posts: 723 | Location: Fort Worth, TX, USA | Registered: July 30, 2002
Actually,Carmona did not have a right to lie. The Court of Criminal Appeals did say that the polygrapher was an agent of the defendant, but, on remand, the Court of Appeals found that there was sufficient evidence in the record to infer that the defendant agreed to disclosure, even though the defendant didn't expressly waive the attorney-client privilege.
We put on evidence and argued that the attorney was waiving the privilege on behalf of the defendant and the defendant never put on any evidence to contradict that claim. The polygraph results (suggesting innocence) were presented to us before indictment to influence us to no bill the case.
Of course, the next time I get one of those polygraph reports faxed to me, I will ask the defense attorney to include a statement by the defendant that he is personally agreeing to the disclosure.
The result in Carmona was that the jury heard from the polygraph operator (who explained that defendant confessed to sexual assault even though he passed the polygraph), convicted him, and sentenced him to 45 years in prison.