PERJURY ...... 1

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PERJURY

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Illinois Supreme Court People v. Davis, 164 Ill.2d 309, 647 N.E.2d 977 (1995) False statements made in a discovery deposition were "material," though deposition was never filed in court and the trial judge testified he did not rely on it in making rulings. Allegedly false statements need not be placed before the trier of act to be material." The law only requires that the statements be given under oath or affirmation in any type of matter where the law requires an oath or affirmation; that they be false; that they be material to the issue or point in question; and that the person making the statements believes them not to be true."

People v. Barrios, 114 Ill.2d 265, 500 N.E.2d 415 (1986) Defendant was convicted of perjury for falsely stating on a driver's license application that his driving license or privilege was not revoked. Defendant's Illinois license had been revoked four years earlier due to a DUI conviction. He admitted having received a notice that his privileges to drive and obtain a license were revoked, and a notice that he was ineligible to apply for restoration of his driving privileges until 1982. In 1983, defendant obtained an Iowa driver's license. In 1984, defendant applied for an Illinois license and responded "no" to the following question: "Is your driver's license or privilege to obtain a license suspended, revoked, canceled or refused in this or any state?" The Supreme Court upheld the perjury conviction. The Court rejected defendant's contention that the evidence failed to prove that at the time of the application, he knew his license and privilege to obtain a license were revoked. The Court held that the question on the application form was "plainly stated and requires no interpretation," and that defendant clearly knew that his license and privilege to obtain a license were revoked.

People v. Wills, 71 Ill.2d 138, 374 N.E.2d 188 (1978) The Court reversed a conviction for perjury based on defendant's answers to questions before a grand jury. The questions, read in context, were susceptible to a reasonable interpretation other than that intended by the questioner; given the alternative interpretation, defendant's answers were responsive and truthful. See also, People v. Smith, 76 Ill.App.3d 191, 392 N.E.2d 682 (2d Dist. 1979) (State failed to prove that defendant's testimony was "factually false" where it may have been a truthful answer to a "question subject to various interpretations").

People v. White, 59 Ill.2d 416, 322 N.E.2d 1 (1974) Alleged false statement giving rise to perjury charge must be a statement of fact and not a conclusion, opinion or deduction from given facts. Where the question called for a conclusion rather than a factual answer, defendant's erroneous answer did not constitute perjury. In addition, a defendant cannot be convicted of perjury for giving a truthful answer to a question that is subject to various interpretations. But see, People v. Kang, 269 Ill.App.3d 546, 646 N.E.2d 279 (4th Dist. 1995) (statement of belief or opinion can serve as basis of perjury charge where, as a matter of fact, the witness had no such belief or opinion).

People v. Aud, 52 Ill.2d 368, 288 N.E.2d 453 (1972) Perjury indictment that failed to set out the alleged false statement was insufficient. See also, People v. Coleson, 25 Ill.App.3d 43, 322 N.E.2d 600 (5th Dist. 1974) (perjury indictment insufficient where it alleged that defendant signed a document that he knew contained a material false statement, but failed

1 to specify the alleged false statement).

Illinois Appellate Court People v. Torres, 2019 IL App (1st) 151276 In a shooting case where the question was whether defendant had the intent to kill, and should be convicted of attempt murder, or whether he merely had the intent to frighten, and should be convicted of a lesser offense, the State elicited false testimony from defendant’s accomplice that he had pled guilty to attempt murder for his role in the incident. The accomplice did not plead guilty to attempt murder, as that charge had been reduced to a lesser offense. Defendant alleged this false testimony violated his right to due process. The Appellate Court first rejected the State’s forfeiture argument, finding that a party does not forfeit an error involving the false, uncorrected testimony elicited by the opponent. Also, whether the prosecutor actually knew the statement to be false does not matter, as the prosecutor’s office knew the accomplice did not plead to attempted murder, and that knowledge is imputed to the prosecutor at trial. Finally, the Court held that if there is any reasonable likelihood that the false testimony could have affected the jury’s verdict, the defendant is entitled to a new trial, regardless of the lack of an objection. Because the jury was falsely told that the accomplice pled guilty to attempted murder, the jury could have concluded that defendant must also be guilty of this offense. While the dissent would have found the error harmless, the majority pointed out that even if evidence of defendant’s participation in the offense was overwhelming, evidence of his state of mind at the time of the shooting was close. As such, the false statement was material and required a new trial.

People v. Rutledge, 257 Ill.App.3d 769, 629 N.E.2d 233 (3d Dist. 1994) Defendant, who testified at suppression hearing that he did not possess cocaine, could not be convicted of perjury after the trial court granted the motion to suppress. To obtain a perjury conviction, the State is required to prove that defendant knowingly made a false statement that was material to the issue in question. A false statement is material where it "would or could influence the trier of fact in its deliberations" on the issue in question. Defendant's denial of guilt on the underlying charge could not have influenced the only issue involved at the suppression hearing - whether the Fourth Amendment had been violated. Thus, defendant's testimony was not "material." A defendant's testimony is not always "material"even if it is relevant to his credibility.

People v. Olinger, 245 Ill.App.3d 903, 615 N.E.2d 794 (3d Dist. 1993) Defendant was convicted of two counts of perjury based on her failure to include assets in affidavits of assets and liabilities. Count I of the indictment alleged that on one affidavit, the defendant failed to list rental income from a trailer. Count II alleged that on another affidavit she failed to list the trailer itself. The Appellate Court found that the omissions were not "material" because they could not have influenced the determination of defendant's indigency. The Court noted that the rental income in question amounted to $123.87 over a three-month period, and that the trailer was worth $1000 while defendant owed $42,000 and had a monthly income of only $337.

People v. Penn, 177 Ill.App.3d 179, 533 N.E.2d 383 (5th Dist. 1988) The trial court dismissed a perjury information for failing to allege that defendant did not believe the false statement to be true. The Appellate Court affirmed the dismissal order, rejecting the State's argument that such a mental state need not be alleged for perjury based on defendant's contradictory statements. Although the State need not prove which of two contradictory

2 statements is false, it must allege and prove all essential elements of the offense: The defendant's mental state remains an essential element of the offense of perjury. Paragraph [32-2(b)] does not eliminate an element of proof, but merely provides an alternative method of proving an element of the offense. . . . Thus, a mental state remains an essential element of the offense of perjury which must be alleged in the charging instrument and proven at trial.

People v. Briddle, 84 Ill.App.3d 523, 405 N.E.2d 1357 (2d Dist. 1980) Defendant's acquittal on a speeding charge did not bar a perjury prosecution based on his trial testimony. Defendant's description of his car was not relevant to the speeding charge, but was "material" because it influenced the judge in acquitting him of speeding.

People v. Watson, 85 Ill.App.3d 649, 406 N.E.2d 1148 (4th Dist. 1980) Statements defendant gave before the State Board of Elections were specific enough to constitute perjury; taken as a whole, questions and answers show assertions of fact by the defendant.

People v. Anderson, 57 Ill.App.3d 95, 372 N.E.2d 1101 (1st Dist. 1978) Where the State bases a perjury charge on the fact that defendant made inconsistent statements while under oath, it need not establish which of the statements was false. However, both statements must have been "material" to issues in question. Because the State failed to show that defendant's statements were "material," the conviction was reversed. See also, People v. Franklin, 135 Ill.2d 78, 552 N.E.2d 743 (1990) ("[T]estifying ‘differently' does not necessarily translate into perjurious testimony").

People v. Roberts, 54 Ill.App.3d 506, 369 N.E.2d 356 (4th Dist. 1977) Conviction for perjury upheld. The perjury statute provides that a perjury prosecution is barred where the declarant admits in the "same continuous trial" that one of two contradictory statements is false. Here, however, defendant's recantation was untimely because it was made at the post-trial motion stage.

People v. Taylor, 6 Ill.App.3d 961, 286 N.E.2d 122 (4th Dist. 1972) Knowledge that a statement was false when it was uttered is an essential element of perjury, and must be alleged in the indictment. Allegation that defendant made a statement "he does not believe to be true" was insufficient to charge perjury, because it failed to allege defendant's state of mind when he made the statement. But see, People v. Dyer, 51 Ill.App.3d 731, 366 N.E.2d 572 (5th Dist. 1977) (indictment alleging defendant "knowingly made a false statement . . . which he does not believe to be true" was sufficient; the required mental state (belief in the falsity of the statement) was charged by the assertion that he "knowingly made a false statement," and the remaining language is mere surplusage).

Updated: January 6, 2020

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