Deception Of A Witness

CHAPTER ONE

Prologue

FIGHTING ANY FALSE criminal allegation can cost a person potentially their life savings, reputation in the community, loss of friends, family, their career and ultimately their loss of freedom. From the time a criminal charge is laid, the process can last more than two years before a courts verdict is handed down. Witnesses and what they disclose to police can impact the final outcome of any investigation. If the information is considered deceptive or misleading during trial but considered as truthful during the investigative process, it could result in a false charge being laid against a person, leaving their life in potential ruins.

IT IS NOT A SECRET that a large number of wrongful convictions result from deceptive witness testimony. The fact is; witnesses play a critical role in the criminal prosecution of any individual. Was the information by the witness corroborated by other evidence? Does the witness have an adverse motive? Was the story the witness provided incomplete or inconsistent? How credible is the witness and what is it base on? Is the information third party or first hand? Has this witness testified or provided information previously in any other criminal case or trial? Has the witness ever been known to have given misleading or false information to police? Is the witness a police informant? These are just a few simple questions that should be asked during the course of any investigation prior to using a witness.

THE FOLLOWING STORIES you are about to read in this book are cases that have been tried before the criminal courts in both Canada and the United States.

CHAPTER TWO

How The Courts View Witnesses Who Lie

Witnesses play an essential role in the way a judge or jury interprets evidence and makes decisions during the trial. With a person's freedom or even life hanging in the balance of a court decision, it's essential for a witness to not only cooperate during court proceedings, but that they also tell the truth. To help ensure a person provides truthful testimony, courts place witnesses under oath, paired with penalties for not telling the truth. Unfortunately, for many reasons witnesses make the choice to lie, which not only impacts the case, but also may put in motion criminal charges against the witness in question.

WITNESSES LIE FOR A variety of reasons, sometimes to protect themselves and to protect others. For example, a witness may fear retribution from the person they are testifying against or lie in order to protect someone they care about.  Whatever the reason for a witness deliberately falsifying their testimony in court, there will always be collateral damage.

IF A WITNESS GIVES false testimony, which can’t be challenged with contradictory evidence that they're lying, then the court has or reason to act. However, if either side knows that the witness is lying, they're both expected to act accordingly. Attorneys are unable to suborn or induce a witness to provide perjured testimony, which would be the case if they allowed their witness to knowingly lie. Prosecutors can't allow incorrect testimony to stand, and must not only correct a lie, even if it damages their case, but must also stand in front of the judge and jury and state on the record that they know the statement of their witness is false. This action can be followed by criminal charges filed against the witness for perjury.

PERJURY

PERJURY IS DEFINED in both the United States and Canada as knowingly making a misleading or false statement while under oath. Perjury stems from the common law of England, and in today's legal system is considered a felony offense in the U.S and an indictable offense in Canada. Perjury not only applies to verbal testimonies, but also to any document signed under penalty of perjury.

QUALIFICATIONS FOR Perjury

FOR SOMEONE TO BE FORMALLY charged with perjury, several criteria must be met. First, the statement or item in question must have a verifiable relationship to the proceeding, lawsuit or investigation. The person must be under oath to tell the truth, administered by someone in authority, such as a judge or notary public. Like most crimes, the witness must act with intent, meaning that they are knowingly lying with the intent to mislead the judge or jury. This means that false statements that are made due to confusion while answering a question, by mistake or through a lapse in memory, do not qualify as perjury. A false statement made outside of court proceedings, such as in a private meeting with an attorney, can only be considered perjury if the lie was part of a sworn or signed affidavit.

RECANTED TESTIMONY

A WITNESS THAT LIES while giving testimony can sometimes avoid perjury charges by recanting their false statement while still under oath on the witness stand. However, recanting testimony does not guarantee that the witness will escape penalty, especially if the false statement has the potential to dramatically impact the outcome of the case. In state cases, the judge may still decide to charge the witness with a lesser offense of contempt of court if the judge feels the lie obstructed the court's operations. In federal cases, the witness may still be charged with perjury, though the recanted statement can be taken into consideration by the judge when determining intent.

PENALTIES

THE PENALTIES FOR PERJURY vary depending on what court the act was performed in. In U.S. federal proceedings, a person who is found guilty of perjury may be fined, as well as can be sentenced to up to five years in prison. When it comes to U.S. State courts, each State's penalty will vary based on their own codes and statutes. However, most States generally stay close to the same penalties for perjury as the federal courts. In Canada, perjury is punishable by no more than 14 years in prison. In California, perjury can be classified as a capital offense, meaning punishable by death. California Penal Code § 128 states that those whose perjury results in the conviction and execution of an innocent person can be sentenced to life in prison or given the death penalty.

SUBORNATION OF PERJURY

IT'S IMPORTANT TO NOTE that if a person persuades a witness to commit perjury, they can be charged with subornation of perjury, which is also punishable by fines, jail or both.

OUTCOMES

BEYOND THE POTENTIAL penalties a witness risks by not telling the truth, while under oath, false testimony can also result in serious legal consequences for other parties involved in the case. For example, a lie can lead to a wrongful conviction and imprisonment of an accused if it the direct testimony is given substantial weight by a judge or jury. It can also lead to a case being dropped, even if there is other evidence to show the defendant’s guilt. The perjury can also be used on either side of a case to argue a defect or mistrial. In these cases, a retrial may be granted, costing both parties and the government a significant amount of time and money.

THE IMPORTANCE OF TRUTH when acting as a witness in a trial cannot be overstated. Not only can even a small lie result in serious fines or jail time for the witness, but the freedom, financial well-being and even the lives of those involved may be at stake.

POLICE INFORMANTS

IN DRUG CASES, POLICE will use participants as witnesses or confidential informants for the purpose of providing intelligence or information. Although informants are a valuable tool for police during a drug investigation, they’re credibility is minimal at best and have a high risk of providing false information. In drug cases, police informants are usually recruited as co-participants and given either privilege or compensation for their information. In a significant number of drug cases, it is this information that is relied upon to obtain search warrants, as well as implicate others. These types of witnesses have a higher risk of being deceptive and can cause substantial collateral damage to innocent parties

GOVERNMENT MISCONDUCT

MISSTATING THE LAW, suppression of exculpatory evidence,