PERJURY - ELEMENTS
No person may be convicted of perjury unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
Second, a statement;
Third, (known by the defendant(s) to be not true)/(believed by the defendant(s) to be not true)/(with intent to avoid or obstruct the ascertainment of truth);
Fourth, under oath/affirmation/(legally binding assertion);
Fifth, authorized/required by law in a/an trial/hearing/investigation/ deposition/certification/declaration.
Statutory Authority: 21 O.S. 1991, § 491.
The last sentence of section 491 makes it a defense to the charge of perjury that the statement is a true statement. Although the defense of truth is discussed later in the Committee Comments, all materials included herein should be read with the defense of truth in mind.
The first element indicates how perjury can be committed: either by an oral statement from the accused, or by a written statement of the accused. "Subscribing" seems to be one method of "making" a statement, but "subscribing" is specifically listed as an alternative because of the statutory language. See 21 O.S. 1991, § 497, for a statutory definition of when the "making" or "subscribing" of a deposition is complete.
The second element indicates that what must be made or subscribed is a statement. It is probably helpful to explain more fully the meaning of the word "statement." If a witness is asked, "Do you own a Ford Mustang automobile?", the witness must answer from his knowledge, "Yes," "No," "I do not know." So long as the witness answers from his knowledge, the witness cannot be prosecuted for perjury, regardless of the objectively verifiable answer. Likewise, if a witness is asked, "Is it your opinion that the finest automobile made is a Ford Mustang?", the witness must answer in accordance with the opinion the witness holds, "Yes," "No," "I do not have an opinion." So long as the witness answers in accordance with the opinion he holds, the witness cannot be prosecuted for perjury, regardless of whether the opinion is objectively verifiable as true or false. If the witness answers not in accordance with the opinion that the witness holds, however, then the witness can be prosecuted for perjury, if the other elements of perjury exist, even though the statement for which the witness is being prosecuted is a statement relating to an opinion. Hence, the Commission has used the language "a statement" in the second element, rather than "a statement of fact," because the latter expression could be a source of confusion.
Nor is it necessary to modify the word "statement" in the second element with the word "false." The social interest meant to be protected by the perjury statute is that of having persons answer questions under oath to the best of their ability in accordance with their knowledge or opinion. Society desires the witness's knowledge or opinion regardless of what is objectively true. Witnesses undermine this social interest when they do not answer according to what they think, or when they answer according to what others want them to say. Hence, in the case of opinion testimony, the statement does not have to be false in order for the crime of perjury to be committed. W. Clark & W. Marshall, A Treatise on the Law of Crimes § 14.03, at 1041 (7th ed. 1967); R. Perkins, Criminal Law 459-60 (2d ed. 1969).
The third element sets forth the mens rea requirement of the crime. Statements given when any of three mental states exist can subject one to a possible perjury conviction. For clarity, examples will be used to explain the mens rea alternatives.
If a witness is asked, "Does X own a Ford Mustang?", and the witness knows that X owns a Ford Mustang, then the witness must answer, "Yes." If the witness answers, "No," or "I do not know," the witness has made a statement for which perjury could be charged. This first example is covered by the alternative "known by the defendant to be not true."
If a witness is asked, "Does X own a Ford Mustang?", and the witness does not believe that X owns a Ford Mustang, but the witness answers, "Yes," the witness can be subject to perjury charges, even though it turns out to be true that X does, in fact, own a Ford Mustang. To avoid perjury, the witness should have answered, "No," or "I do not believe so." This second example is covered by the language "believed by the defendant to be not true."
If a witness is asked, "Does X own a Ford Mustang?", and the witness knows that he has no idea as to the make of automobile that X owns, but the witness answers positively either "Yes," or "No," both answers can subject the witness to perjury charges because the answer that the witness should have given is, "I do not know." This third example is covered by the language "with intent to avoid or obstruct the ascertainment of truth."
The three mens rea alternatives in the third element have always been the mens rea elements for perjury in Oklahoma. Rose v. State, 3 Okl. Cr. 294, 127 P. 873 (1912); Pilgrim v. State, 3 Okl. Cr. 49, 104 P. 383 (1909); 21 O.S. 1961, § 498. Confusion of interpretation between 21 O.S. 1961, §§ 491 and 498, however, led to the repeal of the then 21 O.S. 1961, § 498, with a concurrent clarification of the mens rea element in section 491. Laws 1965, c. 126. The 1965 amendments to the perjury statutes did not change the mens rea element of perjury, but insured that the confusion which previously existed was eliminated. M. Merrill, Oklahoma and the National Conference of Commissioners on Uniform State Laws, 1965, 36 Okla. B.A.J. 2205, 2212 (1965).
In light of the discussion of the second and third elements, it is apparent that the State need neither allege nor prove what the truth is. The State need only allege and prove that a statement was given when the accused had one of the three mens rea requirements. Gray v. State, 4 Okl. Cr. 292, 111 P. 825 (1910). It is necessary, however, to emphasize that under sections 491 and 499(1), it is a defense for the accused to prove that the statement made under oath is true. If the witness is lucky enough to have an answer proven true, which answer the witness believed to be false when given, the witness cannot be convicted. But the witness must establish the truth as a defense, and failure to establish the truth means that a conviction is proper. The mens rea element of perjury can be proven by circumstantial evidence. Pitman v. State, 487 P.2d 716 (Okl. Cr. 1971).
As indicated in the fourth element, section 491 mandates that the statement be given under oath, affirmation, or some other form of legally binding assertion, such as a statement at the bottom of an income tax return that the answers were given and the signature subscribed "under penalties of perjury." See also 21 O.S. 1991, §§ 492 and 493. Although it may be morally reprehensible for a person to lie, no legal criminal sanction is imposed for lying until after a person has sworn to tell the truth. Hence, the State must allege and prove that the statement was given under oath or affirmation administered by an authorized person, or under some other form of legally binding assertion. Pitman, supra; Phillips v. State, 483 P.2d 1386 (Okl. Cr. 1971); Dunkin v. State, 53 Okl. Cr. 115, 7 P.2d 912 (1932); 22 O.S. 1991, § 748. An irregularity in the administration of the oath, however, does not invalidate the oath. Campbell v. State, 23 Okl. Cr. 250, 214 P. 738 (1923) (construing 21 O.S. 1991, § 494); cf. Town of Checotah v. Town of Eufaula, 31 Okl. 85, 119 P. 1014 (1911) (construing 21 O.S. 1991, § 497).
The fifth element indicates that perjury has not been committed unless the statement under oath, affirmation, or some other form of legally binding assertion is given in a document or proceeding in which an oath, affirmation, or some other form of legally binding assertion is authorized or required by law. When none is authorized or required by law, perjury cannot exist even though the accused voluntarily took an oath from a person authorized by law to administer oaths. Ex parte Pack, 51 Okl. Cr. 277, 1 P.2d 817 (1931); Morgan v. State, 45 Okl. Cr. 268, 282 P. 1110 (1929). Affidavits presented to a court on a Motion for New Trial are authorized by law. Hence, a statement contained in the affidavit can be the basis for a perjury conviction. Arnold v. State, 48 Okl. Cr. 452, 132 P. 1123 (1913), reh. denied (1929), overruled on other grounds, Roley v. State, 48 Okl. Cr. 60, 290 P. 195 (1930). Other examples include: Campbell, supra, (statement in a marriage application can be basis of perjury conviction); Town of Checota, supra, (statement in elector's affidavit can be basis of perjury conviction).
Prior to the 1965 amendments, section 491 contained the language "having taken an oath ... before any competent tribunal, officer, or person ...." The Court of Criminal Appeals interpreted this language to require that the court, officer, or other legal entity have jurisdiction of the subject matter in relation to which the statement, serving as the basis for the perjury charge, was made. If jurisdiction did not exist, then no perjury could be committed in that document, court, or proceeding. E.g., Bennett v. District Court, 81 Okl. Cr. 351, 162 P.2d 561 (1945) (Grand Jury investigation beyond proper authority); Perry v. State, 10 Okl. Cr. 308, 136 P. 195 (1913) (Justice of Peace exceeding authority). The 1965 amendments, however, deleted the requirement of competency jurisdiction. Section 491 now requires solely that the statement under oath, affirmation, or some other legally binding assertion be given in a document or proceeding in which an oath, affirmation, or some other legally binding assertion is authorized or required by law. The Legislature thereby indicated its intent that a perjury conviction is proper in a proceeding, if an oath is authorized or required by law, even though the proceeding is jurisdictionally defective. M. Merrill, supra, at 2212. Hence, jurisdiction is not an element of the offense and need not be pled or proved. On this issue of jurisdiction, the statutory amendments of 1965 have overruled Bennett, supra; Berry, supra; Grey, supra, and other cases.
The amendments of 1965 also changed several other evidentiary requirements of perjury. Prior to the 1965 amendments, it was necessary to allege and prove the materiality of the statement upon which the charge was based. E.g., Washburn v. State, 47 Okl. Cr. 321, 288 P. 371 (1930); Huffine v. State, 13 Okl. Cr. 239, 163 P. 557 (1917). Materiality is no longer an element of the crime of perjury, because 21 O.S. 1991, § 498(b), makes materiality relevant solely for purposes of sentencing. Another change caused by the 1965 amendments is illustrated by a comparison of the holding in Scott v. State, 66 Okl. Cr. 441, 92 P.2d 847 (1939), with 21 O.S. 1991, § 498(a). In Scott the Court of Criminal Appeals held that a conviction of perjury could not be sustained upon the testimony of only one witness. The court stated that the charge must be supported by at least two witnesses, or by one witness and corroborating circumstances. Section 498(a) makes it clear that no particular quantum or type of evidence is necessary to sustain a perjury conviction. Scott is to this extent overruled. For a brief comment on both changes discussed in this paragraph, see M. Merrill, supra, at 2212-13.
Section 495 makes it clear that, despite the lack of competency as a witness, if a person does testify under oath, the person would be subject to prosecution for perjury. No instructions need be drafted for this section.
Section 500 sets the punishment for perjury. Perjury is not divided into several crimes classified according to degree. But section 500 does set three different penalties depending upon the type of proceeding or circumstances in which the perjury is committed. Hence, it is necessary to be careful to instruct the jury properly with regard to the appropriate penalty. Only a brief discussion of the three penalty subsections is given.
Section 500(1) provides: "When committed on the trial of an indictment for felony, by imprisonment not less than two years, nor more than twenty years." Despite the word "indictment," the Court of Criminal Appeals has held that subsection one applies to all felony cases, whether prosecuted by indictment or by information. Roley, supra, overruling on this point, Arnold, supra; Washburn, supra.
Section 500(2) provides: "When committed on any other trial or proceeding in a court of justice, by imprisonment for not less than one nor more than ten years." Arnold, supra, held that a hearing on a Motion for New Trial is not part of the trial of a felony. Hence, perjury committed at the hearing on the Motion is punished under subsection two as opposed to subsection one. Subsection two would also encompass, apparently, other pretrial and posttrial proceedings in criminal cases, trials for misdemeanors, and trials and hearings in civil cases.
Section 500(3) provides: "In all other cases by imprisonment not more than five years." Proceedings before Grand Juries are not proceedings "in a court of justice" under subsection two. Perjury before a Grand Jury is thereby punished under subsection three. Coleman v. State, 6 Okl. Cr. 252, 113 P. 594 (1911). Other examples of perjury that must be punished under subsection three include the filing of an affidavit containing a false statement for purposes of obtaining service by publication, West v. State, 13 Okl. Cr. 312, 164 P. 327 (1917), and making a false statement in a marriage license application, Campbell, supra.
The Oklahoma Court of Criminal Appeals analyzed the various penalty provisions in 21 O.S. 1991, § 500 with respect to depositions in civil actions in Lenzy v. State, 864 P.2d 847 (Okl.Cr. 1993). The court held that while the crime of perjury is committed at the time of the false statement, a deposition must be delivered or filed with the court in order for the crime to be punished under subdivisions one and two of section 500, because those subdivisions require the perjury to be committed at trial or in a court proceeding. If the deposition is not used or attempted to be used in court, the punishment is limited to subdivision three. 864 P.2d at 850.
Sections 501 through 503 provide a summary committal procedure by which a court can commit a person to jail if the court has probable cause to believe that the person committed perjury before the court. If a judge attempts to use this summary committal procedure as a substitute for the normal procedures by which a charge is brought and prosecuted, the Court of Criminal Appeals has intimated strongly that the summary committal procedure would be in violation of the Oklahoma Constitution. Ex parte Ellis, 3 Okl. Cr. 220. 105 P. 184 (1910). By contrast, if the judge uses the summary committal procedure as a substitute for arrest without attempting to undermine the normal procedures by which the charge is brought and prosecuted, the summary committal procedure is permissible. Lawson v. State, 492 P.2d 1113 (Okl. Cr. 1972). No instructions need be drafted for these three sections.