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What is Perjury, PC 118? Punishment? Defenses?
Perjury is defined at Penal Code § 118 as deliberately giving false testimony while under oath. This can include in written format, i.e., on an application submitted under oath to the government (we see this quite often in driver’s license applications), however, the most-readily understood form is spoken perjury where, for example, a witness knowingly identifies defendant as the person who committed a crime when that witness knows it is not true, or identifies one man as the father in a paternity lawsuit when the man never had sexual intercourse with the mother and a later DNA test shows this.
The defenses to such a charge are rather “predictable:” lack of intent to offer false testimony based on a good faith belief that the testimony offered was true, that the testimony was not under oath, and that the testimony was not about a material matter (i.e., it was testimony that really did not lead to defendant having any legal liability or conviction).
Summary in 55 Words or Less: Perjury is giving a false statement under oath, either in spoken form or writing. A good defense is a good faith believe that what was said or written was true, or that the perjury was immaterial. Perjury is a felony (not a misdemeanor) punishable by up to four years in state prison.
It is considered a more than minimally punishable felony, as the maximum prison sentence is four years. The minimum prison sentence, if probation is not granted, is two years. The maximum fine is $10,000, plus penalties and assessments, which can triple the amount owed.
Perjury can be a big issue in a criminal case. After all, a defendant may face significant time in prison, so the motivation to avoid that can be strong, Indeed, a criminal defendant has a constitutional right to testify. See Harris v. New York (1971) 401 U.S. 222, 225, 18 L. Ed. 1, 4, 91 S. Ct. 643. This right, however, does not include the right to mislead the judge or jury by offering false testimony.
When defendant proposes to exercise this right to testify and defense counsel suspects the testimony will be false, defense counsel must still protect the defendant’s right to testify unless defendant admits an intent to testify falsely. See Orange County Bar Ass’n Formal Opinion No. 2003-01.
Airport CourthouseWhen defense counsel knows that the client intends to commit perjury, counsel should advise the client that there is no right to commit perjury. Nix v. Whiteside (1986) 475 U.S. 157, 173, 89 L. Ed. 2d 123, 138, 106 S. Ct. 988). Defense counsel should also warn the client that giving false testimony could subject the client to prosecution. Penal Code § 118. Counsel should also explain that if the client insists upon giving perjured testimony, counsel will not elicit such testimony and will not later argue it as true to the jury. See People v. Guzman (1988) 45 Cal.3d 915, 941, 248 Cal. Rptr. 467, overruled on other grounds in Price v. Superior Court (2001) 25 Cal. 4th 1046, 1069 n13, 108 Cal. Rptr. 2d 409.
If the client insists upon testifying falsely despite such a warning from counsel, it is appropriate for counsel to ask the court for permission to withdraw from the case. People v. Brown (1988) 203 Cal. App. 3d 1335, 1339, 250 Cal. Rptr. 762. See Cal Rules of Prof Cond 3-700(C)(1). Counsel may truthfully describe the reason for the request is an irreconcilable conflict. There is no requirement in California for counsel to disclose the reason for the request to withdraw on the basis of privileged information. Aceves v. Superior Court (1996) 51 Cal. App. 4th 584, 59 Cal. Rptr. 2d 280.
If counsel does not withdraw and the client unexpectedly does commit perjury, the attorney must keep that information confidential. Los Angeles County Bar Ass’n Formal Opinion No. 305 (1968), 386 (1980).
If counsel asks to withdraw from the case and the judge denies the request, counsel should make a record, outside the jury’s presence, that defendant is taking the stand against counsel’s advice and that the “free narrative” approach will be used during direct examination. People v. Guzman, supra; People v. Johnson (1998) 62 Cal. App. 4th 608, 72 Cal. Rptr. 3d 805. The free narrative approach frees defense counsel of being seen as eliciting such testimony. This procedure has been held not to be a forced waiver of defendant’s right to counsel, a denial of effective assistance of counsel, or a denial of defendant’s right to a fair trial. People v. Guzman, supra, 45 Cal. 3d at 94; see also People v. Jennings (1999) 70 Cal. App. 4th 899, 83 Cal. Rptr. 2d 33.
For more information about perjury, please click on the following articles:
