Perjury and Aggravated Perjury: Witness Corroboration Issues for Criminal Defense

Lies can hurt or harm in all sorts of ways, but when a witness decides to lie while under oath after having sworn to tell the truth, things become instantaneously serious.  Why?  A witness who lies in sworn testimony commits a crime under Texas law, as well as federal statute and the laws of other jurisdictions.  This is the crime of “perjury.”

Of course, perjury can happen in all sorts of situations, such as divorces and child custody disputes; business litigation involving contract negotiations; and will contests.  However, from the criminal defense attorney’s perspective, the most severe situation involves perjured testimony in a criminal matter.

It’s complicated.  Sometimes, the criminal defense lawyer is faced with defending a client who may be convicted based upon a witness who has opted to lie on the stand or in an affidavit, for whatever reason.

In these cases, the defense strategy is to reveal the falsehood through cross-examination or through other testimony or documentation that exposes the lie.

With a spoiler alert, a classic movie that cleverly delves into these perjury challenges is “Witness for the Prosecution,” starring Tyrone Power as the defendant, Marlene Dietrich as his wife, and Charles Laughton as Sir Wilfrid Robarts, the wily and brilliant criminal defense attorney.  Based upon an Agatha Christie play, it’s a great film.

However, perjury can also be the crux of representations where the criminal defense attorney is asked to advocate on behalf of someone who has been accused of the crime of perjury.  The alleged lie forming the basis of the perjury charge may have been told before a grand jury; in a separate criminal proceeding; or any type of civil matter.

What is Perjury?

Under Texas law, there are two bases for a perjury arrest as defined in Texas Penal Code §37.02 (“TPC §37.02”).  Under this statute, the crime of perjury is defined as:

(a)  A person commits an offense if, with intent to deceive and with knowledge of the statement’s meaning:

(1)  he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or

(2)  he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.

The prosecution has four elements to prove beyond a reasonable doubt.  Anytime someone (1) makes a false statement; (2) under oath; (3) with the intent to deceive; and (4) with knowledge of the statement’s meaning, they have committed perjury under TPC §37.02.

What is Aggravated Perjury?

There is a second crime involving perjury in Texas.  This is the crime of “aggravated perjury,” defined in Texas Penal Code §37.03:

a person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

(1)  is made during or in connection with an official proceeding; and (2) is material.

For the prosecution, for a conviction of Aggravated Perjury there must be proof beyond a reasonable doubt of three elements: (1) of perjury under TPC §37.02; (2) that the false statement was material; and (3) it was made during or in connection with an official proceeding.

What is material?

This is explained in Texas Penal Code §Sec. 37.04, where “materiality” is defined:

(a)  A statement is material, regardless of the admissibility of the statement under the rules of evidence, if it could have affected the course or outcome of the official proceeding.

The statute goes on to clarify the following:

(b)  It is no defense to prosecution under Section 37.03 (Aggravated Perjury) that the declarant mistakenly believed the statement to be immaterial.

Finally, the law does not give the determination of materiality to the jury.  It will always be the judge’s decision if the statement is “material” as it is statutorily a “question of law.”  It states:

(c)  Whether a statement is material in a given factual situation is a question of law.

Punishments for Perjury Under Texas Law

The crime of perjury is considered to be punishable as a Class A misdemeanor. TPC §37.02.  This comes with a maximum sentence of one (1) year in the local county jail and a maximum fine of $4000.00.

Aggravated perjury can result in a much harsher punishment.  Under the statute, the offense of aggravated perjury is defined as a felony of the third degree.  TPC §37.03.  Punishment upon conviction for a Texas third degree felony charge involves incarceration in an institution overseen by the Texas Department of Criminal Justice for a minimum of 2 years and a maximum of 10 years, with a possible monetary fine not to exceed $10,000.

One year in a county jail is life-altering for anyone convicted of perjury in Texas.  But this punishment pales in comparison to an aggravated perjury sentence, which can mean a full decade behind bars in a state prison facility.  Accordingly, criminal defense lawyers take any perjury allegation, even at the investigation phase, very seriously.

For more on punishments in Texas, read: Felony Charges Under Texas And Federal Law: Criminal Defense Overview.

Prosecutor’s Burden of Witness Corroboration: TCCP Art. 38.18

For criminal defense attorneys, there will be a dedicated effort to confirm that the prosecution has met the state’s burden of proving up each of the elements of the criminal offense with admissible and authenticated evidence.  If the state cannot meet its burden of proof, then there cannot be a conviction either at trial — or a sentence that can withstand appellate scrutiny.

Moreover, criminal defense lawyers have another tool to use in the defense of perjury allegations.  Under Texas Code of Criminal Procedure Art. 38.18 entitled Perjury and Aggravated Perjury (“TCCP 38.18”) comes the proviso:

 (a)  No person may be convicted of perjury or aggravated perjury if proof that his statement is false rests solely upon the testimony of one witness other than the defendant.

(b) Paragraph (a) of this article does not apply to prosecutions for perjury or aggravated perjury involving inconsistent statements.

TCCP 38.18(a): Prosecution Burden Regarding Witnesses

Under TCCP 38.18, the state has to bring forth evidence to verify testimony that the defendant’s statement was false.  Initially passed by the Texas Legislature in 1965, the statute was amended in 1973 and this amendment remains the law of the land today.

The current TCCP 38.18 does not require the testimony of two credible witnesses or of one credible witness corroborated strongly by other evidence, as did the original version of this law.  As one court explains, “Article 38.18(a) requires a conviction for perjury or aggravated perjury to be proven by more than one witness to the falsity of the statement.”   Springer v. State, 721 S.W.2d 510, 512 (Tex. App.-Houston [14th Dist.] 1986, pet. ref’d). Also read, Chandler v. State, 756 S.W.2d 828, 829 (Tex. App.—Corpus Christi 1988, pet. ref’d).

Another Texas court clarifies, regarding legal sufficiency of the evidence provided by the prosecution under TCCP 38.18:

Article 38.18 …instructs that there must be more than a single witness’s testimony. To sustain a conviction for perjury or aggravated perjury, the State must produce more evidence than the testimony of the defendant and another witness.

Dodson v. State, 268 S.W.3d 674, 677 (Tex. App.-Fort Worth 2008, pet. ref’d).

The defense must be vigilant in making sure that the prosecutor has meet the requirements of TCCP 38.18 when making allegations of perjury or aggravated perjury.  The state simply cannot put a single witness on the stand to refute the defendant’s testimony.

The law prohibits a “he said, she said” situation.  In order to meet the state’s burden, more evidence must be introduced meeting the standards of authenticity and admissibility that provides proof the accused has made a false statement.

TCCP 38.18(b): Prosecution’s Burden Regarding Inconsistent Statements

The problem with inconsistent statements is one of the many reasons that criminal defense lawyers urge anyone who suspects they are being investigated by law enforcement for any criminal charge get the help of an experienced attorney as soon as possible.  For more, read Don’t Ever Talk to The Police! Never Give a Statement to Law Enforcement in Texas Criminal Investigation and watch my YouTube video on this subject.

What are inconsistent statements?  They are two statements obtained by the State (police, prosecutor) from the accused that do not jive.  Compared side by side, one of them has to be untrue.  The basic examination question: “were you lying then, or are you lying now?”

Key here, from a defense perspective, is that under TCCP 38.18, both statements must be made under oath (sworn statements) before they count as “inconsistent statements” under the statute.  Goswick v. State, 559 S.W.3d 258 (Tex. App. 2018).

Consider the example provided in Goswick, where the accused did make two statements to authorities; however, the appellate court confirmed that the statements made to a deputy “…were not made under oath. Therefore, the State was not relieved of its burden under Article 38.18(a) to prove the element of falsity by producing more than one witness.”

While the jury convicted Tray Don Goswick of aggravated perjury and he was sentenced to ten years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice, his criminal defense included an appeal of this result because of the failure to produce two inconsistent statements as defined in TCCP 38.18.  On appeal, the judgment was reversed and rendered. (He won on appeal.)

Criminal Defense Considerations

All perjury cases must be taken very seriously because the punishment can be so severe.  Even as a misdemeanor charge, conviction can result in the loss of one year’s freedom with a sentence of imprisonment in the local county jail.  Aggravated perjury convictions come with years (two to ten) in a state prison.

1. Crime of Moral Turpitude

Another criminal defense concern for those accused of perjury under Texas law is that perjury has long been seen as a “crime of moral turpitude,” a label that brings with it enduring harm.  This is a punishment in its own right.

Perjury convictions, as crimes of moral turpitude, group the convicted defendant alongside those convicted for felonies like prostitution; swindling; and theft.  As explained in Compton v. Jay, 389 S.W.2d 639, 642 (Tex. 1965):

While the term moral turpitude is not always explicitly defined by the cases, … the term includes more than crimes of perjury, forgery and the like. See, Drazen v. New Haven Taxicab Co., 95 Conn. 500, 111 A. 861 (1920)…. The Court of Criminal Appeals has considered various situations in determining whether a given offense is one that involves moral turpitude. See, e.g., Holgin v. State, 480 S.W.2d 405 (Tex.Crim.App.1972) (prostitution involves moral turpitude; …Bensaw v. State, 129 Tex.Crim. 474, 88 S.W.2d 495 (1935) (theft involves moral turpitude); Sherman v. State, 124 Tex.Crim. 273, 62 S.W.2d 146 (1933) (swindling involves moral turpitude)….

Those convicted of crimes of moral turpitude can face challenges in getting jobs; renting apartments or buying homes; being admitted to schools or universities; and more.  It’s a stigma that can last a lifetime.

2. State Has Its Own Witness Problems

Another criminal defense reality is that while prosecutors zealously pursue perjury and aggravated perjury charges against people in all sorts of situations since these perjury allegations can arise not only in underlying criminal matters, but in all sorts of civil disputes (e.g., will contests; divorces), the state is known for having its own witness issues.

Experienced criminal defense lawyers are well aware that not only do police officers lie on the stand, but that there are lists kept by prosecutors of police officers that are deemed untrustworthy under oath.  For more, read our discussions in:

• Police Who Lie on The Witness Stand: Did You Know Prosecutors Keep Lists of Their Names?
• Police That Lie: More on The Secret Texas District Attorney Lists of Police Officers Not Trustworthy to Take the Witness Stand.

For criminal defense attorneys, the key in defending against perjury charges is that each element of perjury or aggravated perjury must be proven by the state.  The burden is beyond a reasonable doubt.

• If someone tells a lie, or a falsehood, but corrects that statement before they finish giving testimony and it was not seen as an obvious fabrication, then it is not a perjury crime.
• If someone makes a mistake about a fact, that is not a crime.
• If someone remembers something wrong, that is not perjury, either.

And the prosecution must establish the state’s case within the standards of TCCP 38.18.  Was the statement material?  Were there inconsistent statements as defined by law?

An experienced criminal defense attorney will understand the complexities of any perjury allegation as well as the ramifications of a perjury conviction, which can follow the accused for the rest of their lives.  Having an advocate on board as soon as possible in these matters is very important.

For more, read:

• Witness Corroboration Under the Texas Penal Code: Who Believes a Snitch?
• Witness Corroboration When Defending Sexual Assault Charges in Texas
• Prosecutor Caught Withholding Evidence from Defense – Again
• Unjustly Accused of Sexual Assault: When Rape Allegations Aren’t True There’s Still a Victim.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,”10 Questions to Ask Before You Hire a Criminal Defense Lawyer.”