SERIES 2600 CRIMES AGAINST GOVERNMENT
F 2640 Perjury
TABLE OF CONTENTS
F 2640 Perjury
F 2640 Inst 1 Perjury: Stating that Something Is True With Inadequate Knowledge (PC125) — Requirement Of Total Ignorance
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F 2640 Perjury
F 2640 Inst 1 Perjury: Stating that Something Is True With Inadequate Knowledge (PC125) — Requirement Of Total Ignorance
*Modify paragraph beginning with “When a person makes a statement . . .” as follows:
(1) Include this paragraph as an alternative enumerated element when the prosecution is relying on it.
(2) Modify language as follows [added language is underlined; deleted language is stricken]:
[When a person makes The defendant made a statement, without qualification, that information is true, but he or she does not know whether the information is true, the making of that statement is the same as saying something that the person knows is false about which (he/she) was totally ignorant.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Enumeration Of All Elements – See FORECITE F 3500.2 Inst 1.
The CALCRIM Instruction Is Misleading – PC 125 – upon which the CALCRIM language is founded (see CALCRIM Bench Notes) – “only applies to those rare cases in which the evidence would support a finding the defendant asserted the truth of something which might or might not be true but as to which he himself was totally ignorant.” (People v. Rutter (2006) 143 CA4th 1349, 1357; People v. Von Tiedeman (1898) 120 C 128, 134; see also People v. Hagen (1998) 14 C4th 652, 663.)
“To illustrate, assume a witness has unqualifiedly declared under penalty of perjury Smith was at the corner of Third and Main at 11:00 p.m. last Saturday night. The witness is not guilty of perjury if he saw someone he mistook for Smith at that location and time or if he saw Smith but was mistaken about the location or time. The witness is guilty of perjury, however, if he was at home asleep at 11:00 p.m. last Saturday because, even though Smith could have been at Third and Main at that time and date, ‘the witness absolutely knows when giving his testimony that he does not know anything about the matter to which he is testifying.’ [Footnote omitted.]” (Ibid., citing and quoting Von Tiedeman, 120 C at 136.)
In other words, the instruction’s flaw is that it may lead “to the erroneous conclusion [that the defendant] may be found guilty of perjury based on [his or her] honest mistake about a fact.” (Rutter, 143 CA4th at 1355; Von Tiedeman, 120 C at 134.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
