I have never indicted or prosecuted a perjury case, and have been told they are the hardest cases to prove. So I just wanted to check with the learned brethren here before I jump into this.

Assume a hypothetical bond hearing where the following exchange takes place

Q: Other than that since 1992 and the problems that came out of this case have you had any other types of criminal problems?
A: No, sir.
Q: Traffic tickets?
A: No, sir.

Further assume I have an arrest with prints to prove defendant was arrested in 2007.

Perjury? Material?

Thanks

I think the Q and A is a little sketchy to try to prove a perjury. What was the result of the 2007 event? Arrest, conviction?

Criminal problems is a nebulous term. I mean, he would probably say that criminal problems means it was a problem to him. Maybe getting arrested is not a problem for him.

I would say you needed to directly confront him on cross about the 2007 incident. If he then denied specifically, you'd have something.

I agree with Greg.

The context aand circumstances of the exchange will determine the materiality and you didn't state that.

True. What happened in 2007? Was he hiding a pending charge for nun-raping or was it a DWI? Many folks would not see the DWI as real criminal trouble.

Yes, yes, I know that the law is the law, but I think you need to take it in context. I defer to my esteemed colleague from Bastrop.

Ok. Let me fill in a little more. Defendant was arrested in our county for Sale of a Child in 1992. She made bond and essentially never heard from again until we got a call from another county saying they had picked her up on a UUMV and they ran her and found our 17 year old warrant. The previous exchange took place at a bond hearing that I requested to ask the judge to reconsider the amount on the bond since it had been set in 1992 and she had been a fugitive since that time. The questions came from her attorney in an attempt to show that she had been a law abiding citizen in the interim. She claimed she was so young in 1992 she didn't understand that she was supposed to come back, and if she had known she most certainly would have returned to answer to the charges.\

Through some investigation we found the 2007 arrest and pending charges in Durham County, N.C. She had been arrested for possession of stolen property and the N.C. equivalent of UUMV. She was indicted and at the time of the bond hearing there was an FTA warrant from Durham County for her arrest.

So the snipet of testimony was relating to her trying to portray herself as just a poor confused kid who had grown up to be a model citizen and mother.

Well, certainly enough to argue to court she is not being candid with the court but I wouldn't base a prosecution upon the exchange given above about criminal problems. Again, maybe she thinks it is not a problem to be arrested or charged.

As a matter of policy, we avoid aggravated perjury charges unless the defendant has twice been under oath and the two statements contradict each other. That avoids the type of ambiguity you have described.

We will pursue a perjury case when the defendant flat out lies, but there had better be a pretty good bit of proof of that lie. For example, "I did not have sex with that woman" and DNA from semen on a dress. That would work.

On the other hand, the defendant might argue that it wasn't sex...

We did have a good perjury case recently. Before a probation revocation hearing, we reviewed jail phone calls. Caught defendant talking to his dad about the hearing. Dad flat out says in the recording that, if asked a certain question, he would lie. We asked the question, and he lied. Even when confronted with the recording, he tried to explain. He pleaded guilty to aggravated perjury after his son was revoked and sent to prison on the probation.

ADA Mitchell in Guadalupe County has been very sucessful in working my aggravated Perjury cases.

I've successfully prosecuted a couple of different cases in which the defendant testified falsely before a grand jury, then we used extrinsic evidence to prove that he lied. However, both of those defendants testified during the course of the investigation of a capital murder (one of them was a suspect, the other a witness - or so we thought till he started lying....).

While I think you may technically have aggravated perjury, I agree with what others have already said - the false statement isn't really clear enough to solely support a prosecution. More importantly, while it is technically material (i.e., maybe her bond would have been different had she told the truth), I don't think a jury would get that fired up about it in the context of your case.

Better to use those things to hammer her at punishment (and/or in rebuttal of her testimony)at her sale of a child trial.

I have successfully prosecuted agg perjury, but they are not the strongest cases. Jurors more or less expect a criminal defendant to lie. Good luck.