A legal question about perjury.
April 25, 2007 7:05 PM Subscribe
A legal question about perjury.
This question is prompted of course by Gonzales' remarkable testimony before the Senate committee, for which of course there must be a presumption that he was telling the truth. It is not intended to provoke a political debate.
What sort of defense would repeated "I don't recall"s under oath provide against a charge of perjury? On one hand I don't see how it can be proven that someone is lying when they state that they don't recall something, yet on the other hand I can't see how a guilty party could use such an excuse to avoid conviction if they were charged. Is there some rule of evidence which covers this (to me) paradox?
This question is prompted of course by Gonzales' remarkable testimony before the Senate committee, for which of course there must be a presumption that he was telling the truth. It is not intended to provoke a political debate.
What sort of defense would repeated "I don't recall"s under oath provide against a charge of perjury? On one hand I don't see how it can be proven that someone is lying when they state that they don't recall something, yet on the other hand I can't see how a guilty party could use such an excuse to avoid conviction if they were charged. Is there some rule of evidence which covers this (to me) paradox?
Neiltupper, don't forget the presumption of innocence. A defendant in a perjury trial doesn't have to prove anything. The prosecution has to prove deliberate lying.
It's pretty difficult to do, which is why perjury trials are not common. In fact, even in cases where a person contradicts themself under oath (e.g. Crystal Mangum) it's still difficult to prove perjury; it can still be explained by confusion or changing recall.
posted by Steven C. Den Beste at 7:26 PM on April 25, 2007
It's pretty difficult to do, which is why perjury trials are not common. In fact, even in cases where a person contradicts themself under oath (e.g. Crystal Mangum) it's still difficult to prove perjury; it can still be explained by confusion or changing recall.
posted by Steven C. Den Beste at 7:26 PM on April 25, 2007
As someone with a notoriously bad personal memory, I've wondered about this so much. Great question!
posted by crinklebat at 7:27 PM on April 25, 2007
posted by crinklebat at 7:27 PM on April 25, 2007
"Gonzales would argue that the privilege against self-incrimination guaranteed by the 5th Amendment protects him from being charged with perjury..."
No -- To preserve this right, you have to refuse to testify, or show you were coerced into testifying. Otherwise, once you talk, you've waived it. (Alternatively, if you were taken into custody -- and Gonzales wasn't -- you can claim you weren't Mirandized.)
Re the repeated "I don't recall" statements: The jury is allowed to infer that he was lying. A prosecutor might present a lot of evidence in support of this -- e.g. memos or emails showing that Gonzales actually was involved, and later, after-the-fact emails and memos showing that he actually remembered being involved. They could also present evidence showing he has an excellent memory, which he undoubtedly does ( as do most lawyers who get to that level).
But ultimately, absent a real smoking-gun, it's up the jury to make a judgment call.
(BTW, I'm a criminal defense attorney.)
posted by mikeand1 at 7:42 PM on April 25, 2007 [1 favorite]
No -- To preserve this right, you have to refuse to testify, or show you were coerced into testifying. Otherwise, once you talk, you've waived it. (Alternatively, if you were taken into custody -- and Gonzales wasn't -- you can claim you weren't Mirandized.)
Re the repeated "I don't recall" statements: The jury is allowed to infer that he was lying. A prosecutor might present a lot of evidence in support of this -- e.g. memos or emails showing that Gonzales actually was involved, and later, after-the-fact emails and memos showing that he actually remembered being involved. They could also present evidence showing he has an excellent memory, which he undoubtedly does ( as do most lawyers who get to that level).
But ultimately, absent a real smoking-gun, it's up the jury to make a judgment call.
(BTW, I'm a criminal defense attorney.)
posted by mikeand1 at 7:42 PM on April 25, 2007 [1 favorite]
It's extremely difficult to prove that someone remembered something when they said they don't. It's perfectly conceivable to know something, forget it, then remember it later. (Witnesses in trials and depositions are constantly asked to "refresh their recollection" with a document or other memory stimulant.) There's no way that Gonzales can go down for lying about not remembering something.
If he intentionally withheld information, that's another matter entirely. But that's not perjury, it's obstruction of justice.
posted by Saucy Intruder at 7:48 PM on April 25, 2007
If he intentionally withheld information, that's another matter entirely. But that's not perjury, it's obstruction of justice.
posted by Saucy Intruder at 7:48 PM on April 25, 2007
"(Witnesses in trials and depositions are constantly asked to "refresh their recollection" with a document or other memory stimulant.)"
That's frequently a way of letting the jury know about the contents of an otherwise inadmissible document.
posted by mikeand1 at 7:54 PM on April 25, 2007
That's frequently a way of letting the jury know about the contents of an otherwise inadmissible document.
posted by mikeand1 at 7:54 PM on April 25, 2007
Gonzales has, in fact, been asked to "refresh his recollection":
We believe the Committee and our investigation would benefit from you searching and refreshing your recollection and your supplementing your testimony by next Friday to provide the answers to the questions you could not recall last Thursday.
posted by Caviar at 8:18 PM on April 25, 2007
We believe the Committee and our investigation would benefit from you searching and refreshing your recollection and your supplementing your testimony by next Friday to provide the answers to the questions you could not recall last Thursday.
posted by Caviar at 8:18 PM on April 25, 2007
They're really just asking him to vouch for documents that the DOJ turned over. The end result is the same - it looks like he did what he did even if he doesn't remember doing it.
posted by Saucy Intruder at 8:47 PM on April 25, 2007
posted by Saucy Intruder at 8:47 PM on April 25, 2007
That's frequently a way of letting the jury know about the contents of an otherwise inadmissible document.
Not really. Refreshing memory differs from impeachment by document in that important respect -- the document is read by the witness, silently to him/herself, handed back to the attorney, and then the question is answered. The witness is not allowed to read the document out loud (unless it has been properly admitted into evidence) and the witness (in most jurisdictions as far as I'm aware) is not allowed to answer the question with the document in hand.
...also, to clarify Mikeand1's point: the jury would not be allowed to "infer" he was lying from nothing more than a " I do not recall" response. The prosecution would have ot put forth some evidence (many forms of which Mikeand1 pointed out) that would allow a reasonable person to draw the conclusion that he was lying. A case in which the prosecution offered no more evidence than that wouldn't see a jury. (I'm quite sure that Mikeand1 knows all of this, but for the non-lawyers in the crowd it's worth clarifying)
posted by toomuchpete at 4:52 AM on April 26, 2007
Not really. Refreshing memory differs from impeachment by document in that important respect -- the document is read by the witness, silently to him/herself, handed back to the attorney, and then the question is answered. The witness is not allowed to read the document out loud (unless it has been properly admitted into evidence) and the witness (in most jurisdictions as far as I'm aware) is not allowed to answer the question with the document in hand.
...also, to clarify Mikeand1's point: the jury would not be allowed to "infer" he was lying from nothing more than a " I do not recall" response. The prosecution would have ot put forth some evidence (many forms of which Mikeand1 pointed out) that would allow a reasonable person to draw the conclusion that he was lying. A case in which the prosecution offered no more evidence than that wouldn't see a jury. (I'm quite sure that Mikeand1 knows all of this, but for the non-lawyers in the crowd it's worth clarifying)
posted by toomuchpete at 4:52 AM on April 26, 2007
"...the document is read by the witness, silently to him/herself, handed back to the attorney, and then the question is answered."
Yes, and hence the jury is made aware that there is a document that says this.
posted by mikeand1 at 8:53 AM on April 26, 2007
Yes, and hence the jury is made aware that there is a document that says this.
posted by mikeand1 at 8:53 AM on April 26, 2007
This thread is closed to new comments.
You're not really supposed to lie when asserting the privilege, but saying "I don't recall" may be so close to "I'm not going to say" as makes no odds.
posted by Mr. President Dr. Steve Elvis America at 7:22 PM on April 25, 2007