The fact that a jury disbelieves a defendant's denial of the conduct of which he is accused cannot serve as the basis for a subsequent prosecution of the defendant for perjury. A "jury has no right to consider the result of the former case as establishing the fact that the accused in [the perjury] case then lied." Starnes, 66 S.W.2d at 338. Hence, in a sense, the first jury does not determine the truth of the initial accusation, only the degree of certainty which should be attached to the State's proof for the purpose of resolving the dispute in that case.
But, it is also established that one accused of perjury can be found guilty on circumstantial evidence alone. E.g., Bell , 161 S.W.2d at 111. Hence, it appears that where a defendant testifies he did not engage in conduct which is shown (and determined beyond reasonable doubt) by the circumstances to have been done by him, the State might consider prosecuting him for perjury (presumably to be proved by the very same circumstances without reference to the outcome of the earlier trial). It is only in this way that a defendant's oath means anything- because, to my mind at least, he is otherwise not truly testifying under the penalty of perjury. But, my guess is such perjury prosecutions are rarely pursued, and that if they were, the second jury might easily render a verdict contrary to the first.
All this still leaves me with these questions:
(1) Does anyone consider arguing at the penalty phase that the defendant has demonstrated his true character by offering false testimony (especially where he is otherwise portrayed as a "first-time" offender)? (2) Can you properly argue that he committed perjury, when the case law says the verdict just returned means nothing in that regard? (3) Does anyone really try to enforce the perjury statute under these circumstances, especially when any sentence will just run concurrent with the underlying offense? (4) Should you be allowed to point out to the jury that a defendant can effectively testify without worrying about the truth of what he says? (5) Why are defendants required to take a meaningless oath? (6) Should you point out somehow that in the not too distant past defendants were presumed incapable of telling the truth and thus not permitted to testify?
I have never prosecuted someone for perjury based on a defendant's testimony at his earlier trial. I have prosecuted a number of people for lying to the grand jury.
If a defendant takes the stand and lies, I routinely argue to the jury in both the G/I stage and the punishment stage that the def. has a right to remain silent, and his silence cannot be held against him, but a def. does not have a right to take an oath to tell the truth, and then lie to the jury, and the fact that the def. has chosen to lie is indicative of his character.
In a county where I have prosecuted, the jurors were the biggest source of perjury. After taking an oath to answer our questions in VD, many would ignore their oath and not respond when asked a pertenate question. One woman never responded when the panel was asked if they were related to or close to anyone who had been arrested before. In fact, her son had been arrested many times and had done pen time. On my motion the court struck her as not being qualified to serve as a juror, because her lie showed she was not of "good moral character."
During VD I routinely ask how many consider an oath to be a mere formality and how many consider it to be a promise to God to tell the truth, and that if one lies to God, he will be punished. So far, I have not had a single person claim they consider an oath to be a mere formality.
Once during G/J, a def. started to spin a yarn, so I reminded him he was under oath, and I insisted he keep his hand on the Bible which is by the witness chair. He reluctantly put his hand on the Bible, and then started telling a far more believeable--and incriminating story.
quote:Originally posted by Terry Breen: Once during G/J, a def. started to spin a yarn, so I reminded him he was under oath, and I insisted he keep his hand on the Bible which is by the witness chair. He reluctantly put his hand on the Bible, and then started telling a far more believeable--and incriminating story.
That is an interesting interrogation technique. Do you think the Supreme Court would somehow find the resulting statement involuntary?
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
Guess the voluntariness issue would depend on how they answer the "under God" dispute. But, John, I guess I asked too many questions, since you won't offer an opinion on even one of them?
