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If you’ve been following today’s news, some of the past statements made by United States Attorney General Jeff Sessions during his confirmation hearings have been characterized as “perjury.” Specially, Sessions is accused of having failed to mention two meetings between him and a high-ranking Russian diplomat in Washington last year. But what is perjury and how is perjury committed? How is perjury proven and what are the penalties if one is convicted of perjury? Lastly, what is the attorney’s responsibility when his client intends to lie under oath?
According to Wharton’s treatise on criminal law, perjury is “the willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding”. 2 Whart. Crim. Law. So, while perjury can be summarized simply as “lying under oath,” there is a bit more to that definition that will be discussed.
If A.G. Sessions finds himself on the hook for perjury, he would be charged under the federal perjury statute. However, in this article we will concentrate only on the perjury law as it stands in Ohio. In Ohio, the offense of perjury is codified under Ohio Revised Code §2921.11. This chapter of the Revised Code deals with “offenses against justice and public administration.” Some of perjury’s cousins in the same chapter include bribery, tampering with evidence, obstruction of official business, and falsification.
The first part of the Ohio perjury statute states that “no person, in any official proceeding, shall knowingly make a false statement under oath or affirmation, or knowingly swear or affirm the truth of a false statement previously made, when either statement is material.” O.R.C. §2921.11(A). A prosecutor must prove that the person knew the statement was false. This is the requisite state of mind or “mens rea” for perjury. In Ohio, a person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. O.R.C. §2901.22(B).
A person has knowledge of circumstances when the person is aware that such circumstances probably exist. Id. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact. Id. So this sums up the knowledge requirement for committing perjury – a false statement is “knowingly” made when the declarant is aware that the statement is false or is “willfully blind” (by failing to take account of any stronger facts or circumstances that should indicate the statement was false) to the falsity of the statement.
The next part of the statute sets forth when a statement is a “material” statement: “a falsification is material, regardless of its admissibility in evidence, if it can affect the course or outcome of the proceeding. It is no defense to a charge under this section that the offender mistakenly believed a falsification to be immaterial.” O.R.C. §2921.11(A). An example of a false material statement might be the witness stating “the traffic light was red” during a trial for personal injuries after a car accident when the witness knew the light was in fact green.
For a false statement to be perjured testimony, it must be made during an “official proceeding.” An “official proceeding” means any proceeding before a legislative, judicial, administrative, or other governmental agency or official authorized to take evidence under oath, and includes any proceeding before a referee, hearing examiner, commissioner, notary, or other person taking testimony or a deposition in connection with an official proceeding. O.R.C. §2921.01(D).
This means that you don’t necessarily need to be seated in the witness chair inside a courtroom to commit perjury. Perjury can occur anytime a false statement is knowingly made under oath to an authorized official or government agent. It could mean lying on an affidavit or even to a notary public.
So as discussed earlier, perjury occurs when the known false statement is made while the speaker is sworn under oath or affirmation. But what if the person who administers the oath somehow messes it up? Well, the Ohio legislature has addressed this issue in the next part of the statute – it is no defense to a charge under this section that the oath or affirmation was administered or taken in an irregular manner. O.R.C. §2921.01(C).
What if the declarant making the statement makes multiple false statements, some which conflict with his earlier or later statements? When contradictory statements relating to the same material fact are made by the offender under oath or affirmation (and within the period of the statute of limitations for perjury), it is not necessary for the prosecution to prove which statement was false, but only that one or the other was false. O.R.C. §2921.01(D). But what if a different witness contradicts the witness’s statement? This would indicate someone is either lying or more likely that someone is incorrect about their recollection of the facts, but this would not constitute evidence of perjury against the accused individual. No person shall be convicted of a violation of §2921.01 where proof of falsity rests solely upon contradiction by testimony of one person other than the defendant. O.R.C. §2921.01(E).
So how is perjury punished in Ohio? Perjury is a third-degree felony. In Ohio, there are five classes of felonies ranging from the first degree (most serious) to the fifth degree (least serious), so perjury fits square in the middle. A third-degree felony in Ohio is punishable between 9 and 36 months in prison and a $10,000 fine.
Now we’re caught up on what perjury is, how it’s committed, how it’s proven, and what the penalty is in Ohio. Let’s move on to how perjury affects lawyers and what a lawyer must do when his client intends to lie on the stand.
A lawyer has a duty to both protect the interests of the client and to uphold the profession as well as our system of justice. When the client makes known to the lawyer his intention to lie on the stand, these duties naturally conflict.
In Ohio, lawyers are bound by the Ohio Rules of Professional Conduct (ORPC), which set forth the regulations and expectations that lawyers must follow. Prof. Cond. Rule 3.3, “Candor Towards the Tribunal,” outlines what is required of the lawyer when he or she makes representations to the court. This rule prohibits a lawyer from knowingly offering evidence that the lawyer knows to be false. Prof. Cond. Rule 3.3(a)(3).
If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable measures to remedy the situation, including, if necessary, disclosure to the tribunal. Id. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. Id.
When a lawyer knowingly allows his client to lie on the stand, this is called “suborning perjury.” If discovered, the Ohio Supreme Court (which governs lawyer licensing and disciplinary actions) could administer a long suspension or even disbarment to the lawyer.
But what about the client? Doesn’t the lawyer owe him a duty to provide zealous advocacy? Yes, but remember the lawyer must also uphold the justice and integrity of the court system. Therefore, the lawyer has a few options to protect the client, himself, and the court.
First, the lawyer should attempt to talk some sense into his client. If the prosecutor is any good at his or her job, cross-examination would uncover any lies or inconsistencies. A client would be well advised to avoid this trap, especially when dealing with a well-trained and experienced prosecutor.
Next, the lawyer can sit back and let the client do the talking, thereby removing himself from the perjured testimony. This is known as giving a “narrative.” This means that the lawyer will not engage in the typical direct examination questions, because by doing so, he would be enabling the client to lie. The client will sit in the witness chair and tell his account of what happened.
This technique is not without its faults, however. When the lawyer tells the court that his client is giving narrative testimony, the judge, prosecutor, and court personnel usually know what’s going on – but the jury does not. The lawyer must also detach himself from whatever the client has said. This means that he cannot refer to the narrative testimony during closing argument (final phase of a trial where the lawyers summarize the evidence presented and how it relates to the elements of the crime).
The lawyer may additionally withdraw from the case if the client refuses to follow the lawyer’s advice or facts or circumstance arise that would make the continued representation unlawful. However, on the eve of trial the lawyer might not be able to withdraw without prejudicing the client.
Lastly, the lawyer can disclose to the tribunal that the client is lying. This is probably least desirable, however, and would destroy any sense of trust and confidence that the client has in his lawyer.
So, in conclusion, will A.G. Sessions face perjury charges? It’s too early to tell. But a confirmation hearing would satisfy the requirement of an “official proceeding” under Ohio law, and if he knew of the meetings with the diplomat and gave a contrary statement, that would certainly qualify as perjured testimony.