Perjury – Prosecution (California Penal Code Sections 118 through 131)

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A litigant (defendant or plaintiff) or a witness who is under oath to tell the truth commits perjury by making a statement in a court or at another legal proceeding that the person knows not to be true. The statement must be “material” to the subject of the proceeding, meaning that it must have some relationship to the lawsuit, investigation, or criminal trial.

You may face a perjury prosecution.
You may face a perjury prosecution if you knowingly sign a document containing false information.

You can also commit perjury by signing a legal document that you know to contain false information. Generally, these types of documents require you to “declare under penalty of perjury” that the information you have provided is true and correct to your own knowledge, or words to that effect.

Additionally, you can also be prosecuted for persuading someone else to intentionally lie under oath. This is known as “suborning perjury.”

Our attorneys at Wallin & Klarich will explain below how a charge of perjury under California Penal Code Section 118 (and related) can be proven by identifying each element of this crime that a prosecutor must establish in order to convict you. Keep in mind that it is critical for you to have an experienced and knowledgeable attorney defend you against these serious charges.

1. You Made a Willful and Deliberate Statement.

The first element that must be proven is whether you actually made a deliberate statement relating to the subject matter of the inquiry. If you intentionally make a verbal or written statement of information that you intend to be taken as the truth to another, then your statement is deliberate and willful.

However, if you say or write something you know is false, but do so only to or for yourself, then this does not constitute perjury.

Even your silence can qualify as a deliberate “statement” if you intend it to substitute for a verbal or written acknowledgement when answering questions under oath.

For example, during voir dire (the jury selection process), jurors may be required to raise or not raise their hands to answer yes or no to questions posed by the judge or an attorney. According to California Evidence Code Section 225, a “statement” is either:

a) Oral or written verbal expression; or

b) Nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.

If you fail to raise your hand to indicate an affirmative and truthful response to a question posed to you while you are under oath, you have tacitly stated “no” by saying and doing nothing at all. In doing so, you may have just invited a charge of perjury.

2. You Knew that the Statement was False.

The element of knowing you made a false statement is critical to a prosecution for committing perjury. You can only be convicted of perjury if you knew the statement you made was false.

President Clinton made a false statement under oath.
Former President Clinton knowingly made a false statement under oath.1

Making a misleading, but otherwise true statement is not likely to be considered perjury. For example, when President Bill Clinton was being investigated during the Monica Lewinsky sex scandal, he said at a press conference that he “did not have sexual relations with that woman, Miss Lewinsky.”

What the former president said may have been technically true, if by “sexual relations” he intended to mean sexual intercourse. Although misleading, the former president’s statement doesn’t necessarily mean he committed perjury.

Later in a sworn deposition, when asked if he had ever had “sexual relations” with Miss Lewinsky, President Clinton attested: “I’ve never had an affair with her.”

The truth was later revealed that he had engaged in oral sex with Lewinski and eventually admitted that his relationship with her was “wrong” and “inappropriate.”

President Clinton was ultimately impeached by the U.S. House of Representatives on two charges, one on perjury and the other on obstruction of justice.

However, failure to volunteer information that would be truthful, but may be otherwise misleading, if not directly asked under oath, does not constitute perjury. Your statement must be unequivocally false in order invite a charge of perjury. Since Clinton construed the phrase “sexual relations” to mean sexual intercourse, which he did not commit, he was not prosecuted for perjury.

Lastly, an oath of office as relates to the future performance of official duties is not subject to a perjury prosecution pursuant to Penal Code Section 120, even though it may prove to be false later on.

3. You Were Under Oath When You Made the Statement.

Lying under oath during a court proceeding is the most obvious way to be charged with committing perjury. If you testify in a criminal or civil case and make a false statement having sworn to tell only the truth, you have committed perjury.

You could face a perjury prosecution outside of courtroom
You do not need to be in the courtroom to face a perjury prosecution.

However, you do not have to be in a courtroom to be placed under oath. You can also be prosecuted for committing perjury if you lie during a deposition, which is sworn testimony you give in a civil or criminal proceeding but outside a courtroom. Attorneys often conduct depositions at their offices or at the witness’s place of business during the discovery process in legal matters.

Additionally, the required element of being under oath in a perjury prosecution is satisfied when you provide false written information in a legal document, such as in the following:

  • An affidavit;
  • A certificate; or
  • A declaration.

These types of legal documents will typically contain language stating that you “declare under penalty of perjury” that the information you have provided is true and correct to your own knowledge, or words to that effect. Your signature indicates your awareness that you have now sworn, as if under oath, to every fact contained in the document.

It is not a defense to a perjury charge that the oath you gave was administered in an irregular way, or that you were not in the presence of the officer administering the oath, provided that you understood that such an officer certified that you did in fact take an oath (Penal Code Section 121).

4. The Statement was a Material Fact or Related to One.

A statement made that relates to or is a “material” fact is the final element that must be proven beyond a reasonable doubt in a perjury prosecution.

Generally, a “material” fact is one of real importance or of great consequence. With respect to California perjury law, a statement is material whenever it:

  • Was used to affect the outcome of the proceeding in which it was made, or
  • Had the probability of influencing the outcome of the proceeding for which it was made.

The statement does not have to actually influence the proceeding, nor is there any requirement that you knew that the statement was material (Penal Code Section 123).

Furthermore, a statement that isn’t material on its face but rather tends to prove or disprove a material issue and therefore relates to a material fact may satisfy this required element in a perjury prosecution.

Additionally, if you provide false testimony that directly affects the credibility of a witness, the testimony is material and is subject to a perjury conviction.

5. Suborning Perjury.

You may face a suborning perjury prosecution.
You may face a suborning perjury prosecution if you coerce someone else to commit perjury.

In addition to committing perjury yourself, you can also be prosecuted for what is known as “suborning perjury” under California Penal Code Section 127. Suborning perjury means that you intentionally invited, persuaded or coerced someone other than yourself to commit perjury either verbally or in writing.

To convict you of suborning perjury, a prosecutor must be able to establish these facts:

  • You convinced another person to give a false statement while under oath;
  • The statements of the witness were material to the subject of the proceeding;
  • The perjury was willfully made with the knowledge that they were false;
  • You knew that the statements given by the other person were false; and
  • The person you persuaded to commit perjury does in fact do so.

The biggest difference here is the prosecutor’s added requirement of proving you were responsible for inviting the other person to lie. If he or she did so willingly, then both of you are subject to prosecution for perjury.

However, if you coerced a witness to give false testimony under threat of immediate harm or future retaliation, then your victim would have a defense to a perjury charge.

Wallin & Klarich Can Help You Fight a Perjury Charge

Being charged with perjury is a serious matter. If you are convicted of this crime, you risk serious damage to your credibility in addition to imprisonment and fines. You should speak with one of our experienced criminal defense attorneys at Wallin & Klarich today if you are facing perjury allegations.

Our attorneys at Wallin & Klarich have over 40 years of experience successfully defending our clients facing serious criminal charges such as perjury. Perjury can often be difficult to prove beyond a reasonable doubt. We can help you through this difficult time by providing a carefully constructed defense that gives you the best chance to defeat this charge.

Wallin & Klarich has offices conveniently located in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville. Our attorneys are available 24 hours a day, 7 days a week to make certain all of your rights are protected and that you receive unparalleled legal representation throughout every step in a criminal proceeding. You don’t have to go through this alone.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.

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