In connection with a prosecution for Aggravated Perjury, Penal Code Section 37.04(c) provides that the materiality of an untruthful statement is a question of law rather than a question of fact. Presumably then, the judge gets to decide if the lie is material.

My question is this: In an indictment for Aggravated Perjury is it necessary to allege how a statement was material; or is it even necessary to allege the statement was material at all? Seems to me that by alleging materiality in the indictment you are placing yourself in a position where you would have to prove to a jury that the statement was material; unless the judge were to instruct the jury that the statement was material as a matter of law. Any thoughts?

Lee,
This is a really tricky area of the law. Even though our statute clearly says that materiality is a question of law, check out US v. Gaudin, 515 US 506, 115 S.Ct. 2310. (1995).

In that case, the Supremes say that materiality is actually a mixed question of law and fact and should be submitted to the jury.

Believe it or not, that opinion came out just a day or two before I was slated to try my first agg. perjury case so I remember all too well frantically changing my voir dire, jury charge, and witness plan in order to address materiality at trial.

What's weird is that in the 12 years since that opinion was issued, I've not found a single case that the issue was ever squarely raised so that a Texas court could say that 37.04(c)is not in accord with Gaudin. So we still have a law on the books that if it is ever used, you'd probably get reversed on.

So I always include materiality in the indictment, voir dire on it, and submit it to the jury.

That section of the indictment just reads something like:

and said false sworn statement was then and there material to such proceeding in that whether or not the defendant [insert the lie]could have affected the course or outcome of the grand jury proceeding;

(In the case we tried when Gaudin first came out, materiality wasn't in the indictment but we asked for a jury charge on it and that was approved. Ward v. State, 938 S.W.2d 525)

We also, out of an abundance of caution, present the issue both to the judge (on the legal materiality) and to the jury (on the factual proof). Generally, it requires us to have a judge (who heard the original statement during courtroom testimony) testify that the statement was material. Kind of cinches it for the jury.

When I was in Dallas, we also submitted the issue to the jury in one of the prosecutions of the fake dope officers.

The perjury statute needs to be amended in light of Guadin.