Lawyers tell me that judges rarely prosecute lying under oath, they just rule against the liars.
The reason? If a person is accused of lying under oath, what's to stop him from lying more during the perjury trial? He's already accused of that crime, so more lies makes little difference. This is why perjury trials are so rare.
Also, "perjury", strictly defined, means testimony that's both material to the issues and leads to a miscarriage of justice. That's a tough standard.
How does the result of committing perjury ("a miscarriage of justice") factor into whether or not it's been committed? AIUI (IANAL), perjury requires three conditions be met: a materially false statement (1) made with intent to deceive (2) while under oath or affirmation (3).
Can you provide a citation or point to some case law for my edification, please?
Point 1 -- materiality: "Perjury, also known as forswearing, is the willful act of swearing a false oath or of falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding."
Point 2 -- resulting in a miscarriage of justice: "Perjury is considered a serious offense as it can be used to usurp the power of the courts, resulting in miscarriages of justice."
> a materially false statement (1) made with intent to deceive (2) while under oath or affirmation (3).
Necessary but not sufficient. One must still meet the materiality and miscarriage of justice tests.
Perjury, as a Federal crime, is defined under 18 USC § 1621 [1], which, to my reading, is silent about whether its commission results in a miscarriage of justice or not. It describes the elements of the crime as: an oath, an intent, a falsehood, and the materiality of that falsehood.
Not to disparage that august institution, but I think something more authoritative than a Wikipedia citation is probably warranted to establish whether the result of an action is necessary for that action to be criminal, instead of the usual Model Penal Code standard of mens rea coupled with actus reus.
> Perjury, as a Federal crime, is defined under 18 USC § 1621 [1], which, to my reading, is silent about whether the commission of perjury results in a miscarriage of justice or not.
So it seems. In researching this, I see that the "miscarriage of justice" issue has two effects -- it often determines whether a case of perjury is pursued at all, and it affects the nature of the punishment (the sentencing phase). But it's not part of the formal definition that might lead to a determination of guilt. So I was wrong to state it the way I did earlier.
The "miscarriage of justice" issue is important, but it's not part of the definition of perjury -- it only affects whether a case is pursued by a prosecutor, and it may then influence the punishment.
Thanks for the response with a bit of context from that perspective.
However, I would think that "material to the issue" and "miscarriage of justice" would both apply to the potential, or particularly actual, conviction of another person based on false testimony.
Perjuring oneself while under deposition can lead to prosecution without any "miscarriage of justice" having taken place in the form of a concluded trial and judgment based upon said testimony.
The courts might also consider context, where the fact of a member of law enforcement committing perjury might be considered particularly onerous, and worrisome in that it may reflect a repeated pattern across multiple cases and potentially across multiple law enforcement officers if it reflects de facto policy and/or improper training and supervision.
Finally, effective law enforcement in this country is meant to depend upon and engender public trust -- and participation, amongst other things in the direct form of the jury. Failure to investigate and prosecute frankly criminal behavior on the part of law enforcement undermines this foundation.
Witness areas such as those described in the OP, where law enforcement ends up in certain respects being "another gang".
P.S. I might add that, with respect to the incentives that the OP article describes, it appears that the perjuring law officer may stand, directly or through their organization, to gain materially as a result of their false testimony.
Not only are they bearing false witness, they are doing so for material benefit.
Which speaks to the nature of the incentives and metrics described.
> Perjuring oneself while under deposition can lead to prosecution without any "miscarriage of justice" having taken place in the form of a concluded trial and judgment based upon said testimony.
No, as far as I know and in most jurisdictions -- for it to be perjury, among the other conditions already listed, there must be a resulting miscarriage of justice. BTW IANAL.
EDIT: the "miscarriage of justice" issue often affects a prosecutor's decision to pursue a case, and it affects the sentencing phase, but it's not actually part of the formal definition. I was wrong.
> The courts might also consider context, where the fact of a member of law enforcement committing perjury might be considered particularly onerous ...
Yes, but that only applies to sentencing, not the issue of guilt. Whether the facts support a conviction of perjury is separate from the issue of an appropriate punishment after a conviction.
I guess I shouldn't conflate the courts with the prosecutor's office (and law enforcement itself, for that matter).
And IANAL -- NEC (Not Even Close) -- myself. BTW, I hope that acronyms suffice in such disclaimers. ;-)
The P.S. that I added to my grandparent, I wrote before you followed up. So, it was not in response to your response.
Beginning to feel too much like a lawyer, just writing these convolutions...
I appreciate your level-headed, and researched, responses. Admittedly, I'm going more than a bit on emotion, here.
Without being overly versed in the details of the law, I watch the contemporary results and trends in this country with a growing horror. Of course, that may reflect my own particular circumstances [1] as much or more than an objective (however defined) measure of actual circumstances.
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[1] Including e.g. aging, competing with production environments that don't have to meet my own's level of expenses including due to regulatory and safety expenses, respect for IP, etc.
Regarding your "If a person is accused of lying under oath, what's to stop him from lying more during the perjury trial?" - What's to stop an accused murderer from lying more during the murder trial? Does this prevent us from handling murder trials?
In a perjury trial, why do you need to ask anything at all? You have the documented testimony where the accused said X under oath, and you have the facts/evidence proving not X.
You need to ask, because that's what a trial is for. To give folks a chance to defend themselves; to allow mercy into the process.
Its pretty common for Engineers to deconstruct social processes into algorithms, but the humanity often gets lost.
Let me try: lying under oath happens during someone else's trial, when you're bound by law to tell the truth. During your perjury trial you're protected by the 5th amendment, so the process must by necessity involve information-gathering from external sources. Whether you lie or not then becomes almost immaterial.
> What's to stop an accused murderer from lying more during the murder trial?
In that case, it would increase the roster of crimes the defendant is accused of. Not so for someone already accused of perjury.
> In a perjury trial, why do you need to ask anything at all?
In a perjury trial, the defendant's attorney might try to argue that the defendant didn't know what he said was false. Perjury requires knowing falsehoods, not inadvertent misstatements of fact. Or the attorney might try to argue that the falsehoods weren't material to the issues being tested in court. There are other defenses -- mental incompetence and others.
The reason? If a person is accused of lying under oath, what's to stop him from lying more during the perjury trial? He's already accused of that crime, so more lies makes little difference. This is why perjury trials are so rare.
Also, "perjury", strictly defined, means testimony that's both material to the issues and leads to a miscarriage of justice. That's a tough standard.