Have you ever seen in the movies a witness being sworn in to tell the whole truth and nothing but the truth? The reason behind this is people need to have reliable evidence to make decisions. This same reasoning goes long back in time even to the book of Proverbs in the Bible. “A truthful witness saves lives, but one who breathes out lies is deceitful.” Proverbs 14:25 (ESV).
There are times when a person is not lying but is incorrect in their facts or has a mistaken memory about what went on. The information that was supplied to them was incorrect or they misunderstood what was being asked. There are many situations too numerous to discuss about where a person could have incorrectly spoken about something and is being now charged for perjury.
This page will be talking about the crimes of (1) committing perjury in a proceeding and (2) perjury by contradictory statements.
Perjury in a Proceeding What the State Prosecutor has to Prove to Convict a Defendant of Perjury in a Proceeding
The state prosecutor must prove beyond a reasonable doubt:
- The defendant took an oath or otherwise affirmed that he was obligated by conscience or by law to speak the truth in an official proceeding or not in an official proceeding;
- The oath or affirmation was made to a person who was a in their official capacity;
- While the defendant was under oath, he made a statement about a material matter;
- That statement was false; and
- The defendant did not believe the statement was true when he made it.
The prosecutor can charge each different false statement that was made under oath as a separate crime.
Defenses to Perjury in a Proceeding
During the proceeding, the defendant’s recantation of the previous statement can be used as a defense if:
- The false statement has not substantially affected the proceeding; or
- The recantation was made before the false statement had been or will be exposed.
People sometimes forget things in the past and change their minds as they are speaking. Other times people become convicted about telling a lie and decide to tell the truth. This defense protects those two types of people.
Arguing that the false statement was not a material matter can result in a dismissal. This is not a defense but is the functional equivalent of a defense. A material matter means any subject, regardless of its admissibility under the rules of evidence, which could affect the course or outcome of the proceeding. It is up to the judge to decide if the statement was of a material matter.
Punishment for Perjury in an Official Proceeding
The punishment depends on if the crime was committed in an official proceeding or not. Official proceedings are proceedings heard before a:
- Legislative agency,
- Judicial agency,
- Administrative or other governmental agency, or
- Official authorized to take evidence under oath such as a:
- General or special magistrate,
- Administrative law judge,
- Hearing officer,
- Hearing examiner,
- Notary, or
- Other person taking testimony or a deposition in connection with any such proceeding.
If the perjury was committed before anyone of these proceedings, the defendant committed a third-degree felony which is punishable up to 5 years in prison and a $5,000 fine. This crime is ranked as a level 4 out of 10 under the Florida Criminal Punishment Code.
If the perjury was committed before the prosecution of a capital felony, the crime is a second-degree felony which is punishable up to 15 years in prison and a $10,000 fine. The crime is ranked as level 8 out of 10 under the Florida Criminal Punishment Code.
Punishment for Perjury not in an Official Proceeding
If the perjury was committed not in an official proceeding, the crime is a first-degree misdemeanor which is punishable up to 365 days in jail and a $1,000 fine.
Perjury by Contradictory Statements
Florida Statute 837.021 prohibits anyone from making contradictory material statements in an official proceeding under oath.
What the State has to Prove to Convict a Defendant of Perjury by Contradictory Statements
The state must prove beyond a reasonable doubt:
- The defendant took an oath or otherwise affirmed that he was obligated by conscience or by law to speak the truth in an official proceeding;
- In the official proceeding, the defendant said statement ______;
- In the same or another official proceeding, the defendant said statement _______;
- The defendant made both statements while under oath or affirmation;
- The statements were contradictory, which means that both statements could not be true.
- The defendant made both statements knowingly and intentionally.
The prosecutor does not have to prove either statement was not true but that the statements were contradictory. Was the guy dead or alive? Were the emails completely destroyed or were there back-ups?
The facts surrounding the two statements are going to be key. Are the statements completely contradictory? For example, a defendant saying the victim was dead and then the victim was alive is completely contradictory as opposed to a defendant describing the victim as shot and then later stabbed. The victim could be both shot and stabbed at the same time but not alive and dead at the same time.
Another defense is that the individual believed both statements to be true at the time the statement was made. For example, Sam first said the victim was dead, but later talked to Carl who said he saw the victim moving, and Sam changed his belief about the victim. Sam was not committing perjury but was merely stating his belief. Perjury is intentional and knowing, not mistaken.
If the defendant is granted immunity to testify, he can tell the truth, contradicting a previous lie, and not be prosecuted for this crime; however, if the defendant told the truth in the first proceeding and is now lying, he can be prosecuted for perjury in an official proceeding. The law rewards those that tell the truth.
Punishment for Contradictory Statements
If the contradictory statements were made in an official proceeding, the crime is ranked as level 4 under the Florida Criminal Punishment Code and is a third-degree felony punishable up to 5 years in prison and a $5,000 fine. If the contradictory statements are in a capital felony prosecution, it is a second-degree felony ranked as level 8 and is punishable up to 15 years in prison and a $10,000 fine.
Contact the Law Office of Roger P. Foley, P.A.
If you have been convicted of perjury, call our offices. Our attorneys are available to meet you for a 5 minute free consultation. It is important that we know all the facts. We need you to tell us everything. This information will be critical to putting together a defense strategy for your case. Our attorneys will find out what evidence the prosecutor has against you. We will then inform you of your options on how to proceed with the case. We can take the case all the way to trial, if you want. Call today so we can get to work helping!