Return to CALJIC Part 5-8 – Contents
F 7.20 n1 Perjury: Materiality In Reform Act Cases (PC 118).
For perjury prosecutions arising out of the Reform Act of 1974, the definition of materiality may be found in People v. Hedgecock (90) 51 C3d 395, 406-07 [272 CR 803].
[Research Note: See FORECITE BIBLIO 7.20]
F 7.20 n2 Perjury: Materiality In PC 118 Cases.
For prosecutions pursuant to PC 118, a material statement is defined as one which “could have influenced the outcome of the proceedings ….” (People v. Poe (68) 265 CA2d 385, 391 [71 CR 161].)
[Research Note: See FORECITE BIBLIO 7.20]
F 7.20 n3 Perjury: Statement Need Not Affect Proceeding Nor Be Directly Material (PC 118).
It is not necessary that the statement did in fact affect the proceeding. (People v. Poe (68) 265 CA2d 385, 391; see also PC 123.) Nor does the false testimony need to be directly material. It is sufficient if it is circumstantially material. (Poe 265 CA2d at 391.)
[Research Note: See FORECITE BIBLIO 7.20]
F 7.20 n4 Perjury: Requirement Of Juror Unanimity (PC 118).
Where a single count of perjury is based on allegations that a defendant testified to more than one falsehood the jury should be instructed that it must unanimously agree on at least one of the false statements. (People v. McRae (67) 256 CA2d 95, 120-21 [63 CR 854]; see CJ 7.25; see also U.S. v. Holley (5th Cir. 1991) 942 F2d 916, 928-29 [reversing conviction for perjury because the district court’s instructions allowed the jury to convict without agreement as to a particular false statement].)
However, it is not clear whether this same requirement is applicable where a document is alleged to be perjured as a result of more than one material omission. (See People v. Smith (84) 155 CA3d 1103, 1186-87 [203 CR 196] [suggesting that unanimity may not be required].)
The failure to require the unanimity requirement as to all perjury prosecutions would implicate the due process principles of the 14th Amendment. As the court explained in U.S. v. Gipson (5th Cir. 1977) 553 F2d 453, 457-58, the concerns underlying the juror unanimity rule have a constitutional dimension:
“Like the <reasonable doubt= standard, which was found to be an indispensable element in all criminal trials in In re Winship [citations omitted], the unanimous jury requirement ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue’. [In re Winship (70) 397 US 358, 364 [25 LEd2d 368, 375].“
“The unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged. Requiring the vote of twelve jurors to convict a defendant does little to ensure that his right to a unanimous verdict is protected unless this requisite of jury consensus as to the defendant’s course of action is also required. [Footnotes omitted].” (U.S. v. Gipson 553 F2d at 457-58; see also FORECITE F 17.01 et al.)
Given these constitutional implications the unanimity instruction should be given in all perjury prosecutions.
[Research Note: See FORECITE BIBLIO 7.20]
F 7.20 n5 Perjury: Definition Of “Material Matter.”
The term “material matter” is not defined in CJ 7.20. However, because this term is not used in the course of normal discourse and its legal meaning may differ from the meaning assigned to it by lay jurors, the term should be defined sua sponte. Apparently, no reported case has addressed the meaning of the term “material matter” for purposes of forgery. [See Brief Bank # B-713 for additional briefing on this issue.]
F 7.20 n6 Perjury: Applicability Of Gaudin To Other Crimes In Which Materiality Is An Element.
Note: In U.S. v. Uchimura (9th Cir. 1997) 107 F3d 1321, the court noted that “the Supreme Court’s reasoning [in Gaudin] applies with equal potency to every crime of which materiality is an element.”
F 7.20 n7 Perjury: False Declaration Is Perjury Only If Delivered With Intent To Be Uttered Or Published As True.
A person who makes a material and knowingly false statement in an affidavit is guilty of perjury only if he or she delivers the affidavit to another person with the intent that it be uttered or published as true. (PC 118, PC 118a, PC 124.) People v. Griffini (98) 65 CA4th 581 [76 CR2d 590] held that the same requirements apply to a declaration (CCP 2015.5) which is the basis for a perjury charge. (See also Collins v. Superior Court (People) (2001) 89 CA4th 1244, 1249 [108 CR2d 123] [no perjury where defendant testified falsely at deposition but transcript remained at attorney’s office and was never delivered].)
F 7.20 n8 Perjury Based On Deposition: Transcript Must Be Executed By Deponent.
In California, the crime of perjury by a deponent is not committed unless the deposition transcript is signed and delivered. (People v. Post (2001) 94 CA4th 467 [114 CR2d 356]; see also FORECITE F 7.20 n7 [Perjury: False Declaration Is Perjury Only If Delivered With Intent To Be Uttered Or Published As True].) Accordingly, when an unexecuted or undelivered deposition contains a willfully false statement, the deponent may be charged with attempted perjury but not the completed crime of perjury. (PC 118.)
F 7.20 n9 Perjury: “Perjury Trap” As Defense Theory.
Some jurisdictions have held that the government violates due process when it “calls a witness before the grand jury with the primary purpose of obtaining testimony from him in order prosecute him later for perjury.” (See United States v. Chen (9th Cir. 1991) 933 F2d 793, 796; cf., FORECITE F 4.015 et. seq. and F 4.60 et. seq.)
F 7.20a
Perjury: Improper To Presume Materiality Element
(PC 118)
*DELETE between <<>>, the final paragraph of CJ 7.20 which reads as follows:
<<If you find that the defendant made [one or more of] the statement[s] as charged, such statement[s] [was] [a] [were] material matter[s] within the definition of perjury just read to you.>>
Points and Authorities
NINTH CIRCUIT
U.S. v. Gaudin (95) 515 US 506 [132 LEd2d 444; 115 SCt 2310] held that materiality in a federal perjury prosecution is a “fact-bound” inquiry which must be submitted to the jury pursuant to the federal constitutional rights to trial by jury and due process. (6th and 14th Amendments.) The court held that Sinclair v. U.S. (29) 279 US 263 [73 LEd 692; 49 SCt 268] has been superseded by more recent decisions which hold that the federal constitution requires the facts essential to establish the elements of a crime be decided by a jury. (Gaudin, 115 SCt at 2319-20].)
The Supreme Court also rejected the prosecution’s argument that the jury may only resolve “factual issues” and that “legal issues” should be resolved by the judge. It is “the jury’s constitutional responsibility … not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.” (Gaudin, 115 SCt at 2316.) Hence, regardless of whether an issue may be characterized as “legal” or “factual,” if the defendant’s guilt or innocence depends upon the determination of that issue, then it is the jury which must make that determination.
Retroactivity. Note: U.S. v. Keys (9th Cir. 1996) 95 F3d 874 held that Gaudin applies retroactively to any non-final federal conviction.
CALIFORNIA
In People v. Pierce (67) 66 C2d 53 [56 CR 817], the Supreme Court held, “the question of materiality is one of law to be determined by the court which tries the perjury charge.” (Id. at 61.) However, notwithstanding Pierce, the rationale underlying People v. Figueroa (86) 41 C3d 714 [224 CR 719], compels a conclusion that a trial court may no more direct a verdict on the issue of materiality in a perjury prosecution than it may instruct the jury in an unregistered securities case that certain instruments are “securities” as a matter of law.
Figueroa concerned a prosecution of a defendant for selling unqualified securities. The trial court instructed the jury that the promissory notes involved in the case were “securities” as a matter of law. Relying on a series of relatively recent United States Supreme Court decisions, the California Supreme Court held that such an instruction amounted to a directed verdict on an element of the offense and thus violated the defendant’s state and federal constitutional rights to a trial by jury. (Figueroa at 724-26, 734.)
In a footnote, the court noted an “historical exception” that a defendant “facing a perjury charge for testifying falsely as to a ‘material’ matter (cf. PC 118) is not entitled to have the question of ‘materiality’ decided by the jury. [Citations].” (Figueroa at 733, fn 22.) But, the court went on to observe that “the continuing validity of [this rule] may be doubtful in light of In re Winship [1970) 397 US 358 [25 LEd2d 368]; Connecticut v. Johnson (83) 460 US 73 [74 LEd2d 823].” (Ibid.)
In People v. Hedgecock (90) 51 C3d 395, 404-07 [272 CR 803], the Supreme Court held that for purposes of the Political Reform Act of 1974 (GC 81000, et seq.) the element of materiality for a perjury prosecution must be determined by the jury. However, the court noted that the definition of materiality under the Reform Act differs from the definition in other perjury cases and the court expressed no view on whether materiality is a jury issue in perjury prosecutions based on false testimony at a judicial or legislative proceeding.
Nevertheless, the constitutional authority cited in Figueroa requires the jury to determine every element of the charge. Therefore, the final paragraph of CJ 7.20 violates the defendant’s right to trial by jury and due process under Article I, § 7 and § 15 of the California Constitution and the 6th & 14th Amendments of the federal constitution. (See generally, FORECITE PG VII.)
In People v. Jiminez (92) 11 CA4th 1611, 1622-23 [15 CR2d 268], the court concluded that it was bound by the California Supreme Court decision in People v. Lem You (1893) 97 C 224, 228 [32 P 11] which held that in a perjury prosecution the materiality of the false testimony is a question of law for the court and not of fact for the jury. However, despite the general rule that intermediate courts of appeal must be bound by decisions of the California Supreme Court, the Lem You case should not be considered binding on this issue because Lem You did not examine the issue in light of modern due process requirements. (See People v. Figueroa (86) 41 C3d 714, 733 fn 22, [224 CR 719].) Since cases are not authority for matters not considered (People v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390]), Lem You should not preclude lower courts from determining whether modern due process requirements necessitate a jury determination of materiality.
In People v. Kobrin (95) 11 C4th 416 [45 CR2d 895], the court held that materiality is an element of the crime of perjury upon which the jury must be instructed. However, while reversing under the circumstances in Kobrin, the court failed to resolve the question of whether the failure to instruct on a single element of the charge is reversible error per se. (Kobrin, 11 C4th at 428, fn 8.)
RESEARCH NOTES
See Annotation, Materiality of testimony forming basis of perjury charge as question for court or jury in state trial, 37 ALR4th 948 and Later Case Service.
F 7.20b
Perjury: Clarification Of Necessary Intent
*Modify Element 2 of CJ 7.20 as follows [added language is capitalized; deleted language is between << >>]:
2. The ________(testimony, declaration, etc.) was [given] [made] BY THE DEFENDANT in circumstances in which an oath may by law be administered; and __________(THE DEFENDANT) <<was>> delivered THE _______(TESTIMONY, DECLARATION, ETC.) to another person with the specific intent that it be uttered or published as true;]
Points and Authorities
CJ 7.20 and CJ 7.21 were revised to include a specific intent that it be uttered or published as true. These revisions were apparently in response to People v. Griffini (98) 65 CA4th 581 [76 CR2d 590], a case previously discussed in FORECITE in 1998.
However, CJ 7.20 and CJ 7.21, as revised, use an awkward passive form that fails to clearly convey that the defendant must possess the necessary intent. The new instructions could be made clearer if modified as shown above.
This formulation also addresses the failure of the instructions to include an “application paragraph.” An “application paragraph,” which is lacking in most CALJIC instructions, specifically admonishes the jury that to convict, “the defendant” must have committed each of the elements of the offense. (See FORECITE F 3.00a.)
F 7.20c
Perjury: Definition Of Materiality —
“Could Probably Influence Outcome”
*Modify CJ 7.20, paragraph 3 as follows [added language is capitalized and underlined:]
A false statement is material if [it could PROBABLY influence the outcome of the proceedings in which it is uttered. Whether it actually had that effect is irrelevant.]
Points and Authorities
“An instruction that informs the jury that a false statement is material if it could probably influence the outcome of the proceeding is much more consistent with the definition of material . . .” (People v. Rubio (2004) 121 CA4th 927, 933.) In other words, to be material “the false statement must be important to the matter under discussion . . . [F]alse statements on matters not pertinent to the proceeding do not constitute perjury.” (Id.)
F 7.20d
Perjury: Definition Of Materiality —
False Statement Must Be Important And Pertinent
*Add to CJ 7.20, paragraph 3 as follows:
In other words, to be material the false statement must be important to the matter under discussion. False statements on matters not pertinent to the proceeding do not constitute perjury.
Points and Authorities
“An instruction that informs the jury that a false statement is material if it could probably influence the outcome of the proceeding is much more consistent with the definition of material . . .” (People v. Rubio (2004) 121 CA4th 927, 933.) In other words, to be material “the false statement must be important to the matter under discussion . . . [F]alse statements on matters not pertinent to the proceeding do not constitute perjury.” (Id.)