Friday, February 3, 2012

Trial-Related Offenses-Witness Testimony

Just thought I would share a few thoughts from a member of Our Discussion Group, who is one of our Non-Lawyer Legal Team.
As we have suggested to many, a good defense should have these basic three elements:
  1. Statutes particular to your concerns;
  2. Documented Proof that defends the statutes showing you did the right things according to statutes; and
  3. Appellate court decisions that support your defense.
Here is our member's introductory statement:
"Interesting, how much of the following takes place and nothing is ever done about it as the average person doesn't know about the appellate court decisions."

Trial-Related Offenses
It is a crime to seek to influence a witness'  testimony, or to prevent a person from testifying, by means of either positive incentives (bribery) or negative ones (tampering or intimidation). Similar  considerations apply to interfering with jurors or potential jurors. Evidence tampering (whether by fabricating false evidence or concealing or destroying actual evidence) is also a crime. Intentional concealment or destruction of evidence during civil discovery can be prosecuted under  18 USC § 1503 (obstruction of justice).128

Contempt of court can be either civil or  criminal, depending on whether the contempt sanction is intended to punish or coerce. Direct contempt occurs in the actual presence of the court (including
proceedings in chambers), whereas indirect or constructive contempt does not. Direct contempt can be punished summarily, whereas a person accused of indirect contempt is entitled to notice (indictment, information, or order to show cause) and a hearing.

Perjury is the making of sworn statements that are known to be false. The degree of a perjury offense depends on whether the statement was made in a sworn writing or in a courtroom. In some jurisdictions, even immaterial lies can constitute perjury; in others, either materiality is an element of the crime, or it goes to the degree of the crime.

Proof of perjury requires intention to make false statements under oath — it is not required that the statements be credible enough actually to deceive. In some jurisdictions, the crime can be purged by recanting the false testimony before the court in a timely fashion, whereas other jurisdictions deem that the crime was committed as soon as the knowingly false statements were made.

False statements in unsworn papers filed in bankruptcy court cannot give rise to an indictment under 18 USC § 1001 (false statements in any matter within the jurisdiction of any "department or agency of the United States")  because a federal court is neither a department nor an agency.129

There is no exception under § 1001 for the "exculpatory no" —in other words, a simple denial of wrongdoing can be penalized as a false statement.130

The Sixth Circuit ruled that 18 USC § 201(c)(3), the ban on sale of testimony, can be violated even if the testimony is truthful and is not fabricated. The statute is rarely applied to truthful testimony, but the court held that the defendant must have been aware that witnesses are not supposed to be paid for their testimony.131  foot note

128United States v. Lundwall, 1 F. Supp. 2d 249 (S.D.N.Y. 1998).
129Hubbard v. United States, 514 U.S. 695 (1995).
130Brogan v. United States, 522 U.S. 398 (1998).
131United States v.  Blaszak, 349 F.3d 881 (6th Cir. 2003).

(f t) Witnesses are not supposed to be paid for their testimony.....wonder if that relates to "expert witnesses?"

May you find Strength in Your Higher Power,
 GranPa Chuck