Perjury – UCMJ Article 131 – Military Defense Lawyers

Elements.

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  1. Giving false testimony.
    1. That the accused took an oath or affirmation in a certain judicial proceeding or course of justice;
    2. That the oath or affirmation was administered to the accused in a matter in which an oath or affirmation was required or authorized by law;
    3. That the oath or affirmation was administered by a person having authority to do so;
    4. That upon the oath or affirmation that accused willfully gave certain testimony;
    5. That the testimony was material;
    6. That the testimony was false; and
    7. That the accused did not then believe the testimony to be true.
  2. Subscribing false statement.
    1. That the accused subscribed a certain statement in a judicial proceeding or course of justice;
    2. That in the declaration, certification, verification, or statement under penalty of perjury, the accused declared, certified, verified, or stated the truth of that certain statement;
    3. That the accused willfully subscribed the statement;
    4. That the statement was material;
    5. That the statement was false; and
    6. That the accused did not then believe the statement to be true.

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Distinguished From False Swearing and False Official Statement.

      1. Although often used interchangeably, perjury and false swearing are different offenses. The primary distinctions are that perjury requires that the false statement be made in a judicial proceeding and be material to the issue, whereas these matters are not part of the offense of false swearing. As such, false swearing is not a lesser included offense of perjury. United States v. Smith , 26 M.R. 16 (C.M.A. 1958).

The offense of false official statement (UCMJ art. 107) differs from perjury in that such a statement can be made outside a judicial proceeding and materiality is not an essential element, but bears only on the issue of intent to deceive. It, too, is not a lesser included offense of perjury. United States v. Warble , 30 M.R. 839 (A.F.B.R. 1960).

“Judicial proceeding” includes a trial by court-martial and “course of justice”includes an investigation under Article 32, UCMJ. MCM, pt. IV, 57c(1).

Discussion of Elements

  1. That the accused took an oath or its equivalent in a judicial proceeding or at an Article 32 investigation.
  2. The oath must be one required or authorized by law. MCM, pt. IV, 57c(2)(d).
  3. Article 42(b), UCMJ, requires that each witness before a court-martial be examined under oath. R.C.M. 405(h)(1)(A) provides that all witnesses who testify at an Article 32 investigation do so under oath.
  4. R.C.M. 807 lists the various forms of oaths to be used at courts- martial and Article 32 investigations. A literal application of such formats is not essential. The oath is sufficient if it conforms in substance to the prescribed form. At the request of the party being sworn an affirmation may be substituted for an oath.
  5. DA Pam 27-9, Military Judges’ Benchbook, 3-149, defines an “oath” as a formal, external pledge, coupled with an appeal to the Supreme Being, that the truth will be stated. An “affirmation” is a solemn and formal, external pledge, binding upon one’s conscience that the truth will be stated.
  6. The oath must be duly administered by one authorized to administer it. MCM, pt. IV, 57c(2)(d).
  7. Articles 41(c) and 136(a), UCMJ, along with R.C.M. 405 and R.C.M. 807, set out in detail those persons authorized to administer oaths at judicial proceedings and Article 32 investigations.
  8. The president, military judge, trial counsel and assistant trial counsel for all general and special courts-martial, along with all investigating officers and judge advocates, are included in this group.
  9. If the accused is charged with having committed perjury before a court-martial, the jurisdictional basis of the prior court-martial must be proved beyond a reasonable doubt. (a) Ordinarily this may be shown by introducing in evidence pertinent parts of the record of trial of the case in which the perjury was allegedly committed or by the testimony of a person who was counsel, the military judge, or a member of the court in that case to the effect that the court was so detailed and constituted. See United States v. Giles , 58 M.J. 634 (N-M. Ct. Crim. App. 2003) rev’d on other grounds and remanded by, 59 M.J. 374 (C.A.A.F. 2004). (b) Where (1) the evidence at trial on charges of perjury before another court-martial did not identify the convening authority of that court-martial; (2) no appointing order was either recited or introduced; and (3) no other evidence providing a factual basis for concluding the prior court was properly detailed and constituted is presented, the evidence was insufficient despite lack of objection by the defense at the trial level. United States v. McQueen , 49 C.M.R. 355 (N.C.M.R. 1974).

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That the accused willfully gave what he believed to be false testimony at the proceeding in question.

    1. A witness may commit perjury by testifying that he knows a thing to be true when in fact he either knows nothing about it at all or is not sure about it, and this is so whether the thing is true or false in fact. MCM, pt. IV, 57c(2)(a).
    2. A witness may also commit perjury in testifying falsely as to his belief, remembrance, or impression, or as to his judgment or opinion. Thus, if a witness swears that he does not remember certain matters when in fact he does or testifies that in his opinion a certain person was drunk when in fact he entertained the contrary opinion, he commits perjury if the other elements of the offense are present. MCM, pt. IV, 57c(2)(a).
    3. To undermine the willfulness and knowledge elements of this offense the following defenses are available: (a) Voluntary intoxication. Intoxication may so impair the mental processes as to prevent a person from entertaining a particular intent or reaching a specific state of mind. To successfully argue this defense in a perjury prosecution, the evidence must show that the accused was intoxicated at the time he testified. Evidence that he was intoxicated at the time of the event about which he testified is immaterial insofar as raising this defense is concerned. United States v. Chaney , 30 C.M.R. 378 (C.M.A. 1961). (b) Mistake of fact. Evidence that an accused charged with perjury was intoxicated at the time of the events about which he testified raises the defense of mistake since such evidence relates to his ability to see and recall what transpired. United States v. Chaney , 30 C.M.R. 378 (C.M.A. 1961). (c) That the false testimony provided was in respect to a material matter.
    4. Determination of whether the false testimony was with respect to a material matter is a question of fact to be determined by the fact-finder. United States v. Gaudin, 515 U.S. 506 (1995); see Johnson v. United States , 520 U.S. 461, 463-66 (1997).
    5. To constitute a “material matter”, the matter need not be the main issue in the case. The test is whether the false statement has a natural tendency to influence, or be capable of influencing, the decision of the tribunal in making a determination required to be made. United States v. McLean , 10 C.M.R. 183 (A.B.R. 1953). Materiality must be judged by the facts and circumstances in the particular case. The color of an accused’s hair may be totally immaterial in one case, but decisively material in another. Weinstock v. United States , 231 F.2d 699 (D.C. Cir. 1956). (a) False denial of prior convictions by a witness in response to cross-examination conducted to impeach him and attack his credibility constitutes perjury, as such false testimony relates to a material matter. State v. Swisher , 364 Mo. 157, 260 S.W.2d (1968). (b) United States v. Martin , 23 C.M.R. 437 (A.B.R. 1956) (accused’s testimony at a previous trial that he was authorized to wear certain decorations, which was not in fact the case, was a material matter for purposes of sustaining a charge of perjury).
    6. Even inadmissible evidence may be material and therefore the subject of a perjury charge. Where a court improperly admits evidence, such impropriety is not per se evidence of immateriality if the evidence goes to the jury. See United States v. Whitlock , 456 F.2d 1230 (10th Cir. 1972); United States v. Parker , 447 F.2d 826 (7th Cir. 1971).

Corroboration: Special Evidentiary Rules.

  1. A unique characteristic of Article 131 is that it contains a quantitative norm as to what evidence must be presented to establish a crucial element of falsity. A mere showing of guilt beyond a reasonable doubt is not enough. Specifically:
  2. “Two witness rule.” The falsity of accused’s statement must be shown by the testimony of at least two witnesses or by the testimony of one witness which directly contradicts accused’s statement plus other corroborating evidence. See United States v. Olivero , 39 M.J. 246 (C.M.A. 1994) (circumstantial evidence of marijuana use insufficient; must have at least one corroborated witness with direct proof of such use). United States v. Tunstall , 24 M.J. 235 (C.M.A. 1987) (where alleged false oath relates to two or more facts that one witness contradicts accused as to the one fact and another witness as to another fact, the two witnesses corroborate each other in the fact that accused swore falsely, and their testimony will authorize conviction); United States v. Lowman , 50 C.M.R. 749 (A.C.M.R. 1975) (accused’s testimony contradicted by two witnesses); United States v. Jordan , 20 M.J. 977 (A.C.M.R. 1985) (two witnesses rule not applicable where falsity of accused’s oath is directly proved by documentary testimony).
  3. Direct proof required. No conviction may be had for perjury, regardless of how many witnesses testify as to falsity and no matter how compelling their testimony may be, if such testimony is wholly circumstantial. See Olivero , 39 M.J. 246 (C.M.A. 1994).
  4. Documentary evidence directly disproving the truth of accused’s statement need not be corroborated if the document is an official record shown to have been well known to the accused at the time he took the oath or if the documentary evidence appears to have sprung from the accused himself -or had in any manner been recognized by him as containing the truth – before the allegedly perjured statement was made. See generally Hall, The Two-Witness Rule in Falsification Offenses , Army Law., May 1989, at 11.
  5. With the passage of Title IV of the Organized Crime Control Act of 1970 (18 U.S.C. § 1623), Congress eliminated application of the two witnesses rule in federal court and grand jury proceedings. In its stead was adopted a beyond a reasonable doubt standard. This statute, however, has not been made applicable to the military. See United States v. Lowman , 50 C.M.R. 749 (A.C.M.R. 1975).
  6. Inconsistent Sworn Statements. Because of the requirements of the “two witness rule,” contradictory sworn statements made by a witness cannot by themselves be the basis of a perjury prosecution under Article 131. For example, X testifies under oath that on 15 March he was in a certain bar with accused from 1900-2100. At the same or subsequent trial he again testifies under oath, but this time states that although he was in the bar from 1900-2100, he never saw the accused. Under military law, insufficient evidence exists to prosecute X for perjury.

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Application of evidentiary rules.

  1. United States v. Downing , 6 C.M.R. 568 (A.F.B.R. 1952). Mere circumstantial evidence showing nonpresence at a hospital by nonexistence of entry in hospital records held to be insufficient.
  2. United States v. McLean , 10 C.M.R. 183 (A.B.R. 1953). Weighty direct and circumstantial evidence of drinking which accused denied found sufficient.
  3. United States v. Taylor , 19 C.M.R. 71 (C.M.A. 1955). Directly contradictory testimony of prosecution witness corroborated by strong circumstantial evidence held sufficient.
  4. United States v. Walker , 19 C.M.R. 284 (C.M.A. 1955). Proof by circumstantial evidence alone of falsity of accused’s negative assertion of what he saw – something by its nature not susceptible of direct proof – was held to be sufficient. This exception was subsequently embodied in MCM, 1969, 210 (currently in MCM, pt. IV, 57c(2)(c)).
  5. United States v. Guerra , 32 C.M.R. 463 (C.M.A. 1963). Contradictory testimony held not directly so, therefore insufficient.
  6. United States v. Martin , 23 C.M.R. 437 (A.B.R. 1956). Documentary evidence directly disproving accused’s assertion of holding various decorations insufficient where uncorroborated.
  7. United States v. Anders , 23 C.M.R. 448 (A.B.R. 1956). Facts similar to those in United States v. Martin, supra . Documentary evidence properly corroborated by testimony negating claim of awards.
  8. United States v. Giles, 58 M.J. 634 (N-M. Ct. Crim. App. 2003)(accused’s testimony that she “did not believe she was purchasing LSD” was sufficiently contradicted by her prior confession to CID that she knew she was buying LSD, her own handwritten note stating that she was got “acid” and from the observations of an informant; totality of the evidence supports conviction for perjury) rev’d on improper joinder grounds, remanded by, 59 M.J. 374 (C.A.A.F. 2004).

Res Judicata as a Defense.

  1. The availability of res judicata as a defense to an accused charged with perjury is recognized in military law.
  2. This doctrine is raised when accused testifies at his trial and is acquitted, but the Government wants to retry him for presenting false testimony at that trial. Under these circumstances res judicata will bar a conviction for perjury. United States v. Martin , 24 C.M.R. 156 (C.M.A. 1957); United States v. Hooten , 30 M.R. 339 (C.M.A. 1961); see generally Milhizer, Effective ProsecutionFollowing Appellate Reversal: Putting Teeth Into the Second Bite of the Apple , II Trial Counsel Forum No. 4 (Apr. 1982).

When an accused is acquitted based on statements made at his trial and then makes similar statements at the trial of another person, res judicata is not available as a bar to a perjury prosecution for his subsequent statements because the principle of res judicata applies only to issues of fact or law put in issue and finally determined between the same parties. The accused was not a party to the second trial. United States v. Guerra , 32 C.M.R. 463 (C.M.A. 1963); see generally Hahn, Previous Acquittals, Res Judicata, and Other Crimes Evidence Under Military Rule of Evidence 404(b) , Army Law., May 1983, at 1.

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