Perjury And Related Offenses — C.R.S. 18-8-501 et seq.

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Index

Current law (November, 2002)

18-8-501 - Definitions,

18-8-502 - Perjury in the first degree.

18-8-503 - Perjury in the second degree.

18-8-503.5 - Perjury on a motor vehicle registration application. (Repealed)

18-8-504 - False swearing.

18-8-505 - Perjury or false swearing - inconsistent statements.

18-8-506 - Perjury and false swearing - proof.

18-8-507 - Perjury and false swearing - previous criminal action.

18-8-508 - Perjury - retraction.

18-8-509 - Perjury and false swearing - irregularities no defense.

18-8-703 - Bribing a witness or victim.

18-8-707 - Tampering with a witness or victim.

Commentary

Suggested revisions

18-8-502 - Perjury in the first degree.

18-8-503 - Perjury in the second degree.

18-8-504 - False swearing.

18-8-510 - Subornation of perjury (proposed addition)

13-90-107 - Who may not testify without consent (proposed revision)


 

Current law (September, 2008)

18-8-501 - Definitions.

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The definitions in sections 18-8-101 and 18-8-301 are applicable to this part 5, and, in addition to those definitions:

(1) "Materially false statement" means any false statement, regardless of its admissibility under the rules of evidence, which could have affected the course or outcome of an official proceeding, or the action or decision of a public servant, or the performance of a governmental function.

(2) (a) "Oath" includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated. For the purposes of this section, written statements shall also be treated as if made under oath if:

(I) The statement was made on or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable; or

(II) The statement recites that it was made under oath, the declarant was aware of such recitation at the time he made the statement and intended that the statement should be represented as a sworn statement, and the statement was in fact so represented by its delivery or utterance with the signed jurat of an officer authorized to administer oaths appended thereto; or

(III) The statement is made, used, or offered with the intent that it be accepted as compliance with a statute, rule, or regulation which requires a statement under oath or other like form of attestation to the truth of the matter contained in the statement.

(b) An oath is "required or authorized by law" when the use of the oath is specifically provided for by statute, court rule, or appropriate regulatory provision.

(3) "Official proceeding" means a proceeding heard before any legislative, judicial, administrative, or other government agency, or official authorized to hear evidence under oath, including any magistrate, hearing examiner, commissioner, notary, or other person taking testimony or depositions in any such proceedings.

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Source: L. 71: R&RE, p. 462, § 1. C.R.S. 1963: § 40-8-501. L. 91: (3) amended, p. 360, § 23, effective April 9. L. 96: (1) amended, p. 738, § 11, effective July 1.

Law reviews. For article, "The Perjurious Defendant: A Proposed Solution to the Defense Lawyer's Conflicting Ethical Obligations to the Court and to His Client", see 59 Den. L.J. 75 (1981).

Not every false statement constitutes perjury. People v. Onorato, 36 Colo. App. 178, 538 P.2d 898 (1975).

To be perjurious, a false statement must also be "material." People v. Onorato, 36 Colo. App. 178, 538 P.2d 898 (1975).

Test of materiality is whether a witness's testimony, at the time his answers were given, could have affected the course or outcome of the investigation; where the subject of the grand jury's investigation was the heroin distribution ring operating in the Colorado Springs area, all leads were material which might have assisted the grand jury in identifying those who had at any time been members of the heroin ring. People v. Maestas, 199 Colo. 143, 606 P.2d 849 (1980).

To be material, a false declaration must have a tendency to influence, impede or hamper the grand jury from pursuing its investigation and it need not be material to the main issue or directed to the primary subject of the investigation. People v. Spomer, 631 P.2d 1156 (Colo. App. 1981).

Materiality. A false statement is material for purposes of § 18-8-502 (1) if it could have affected the outcome of the official proceeding. People v. Scott, 785 P.2d 931 (Colo. 1990); People v. Drake, 841 P.2d 364 (Colo. App. 1992).

Materiality properly question of law. This section does not improperly render the element of materiality in a first degree perjury charge a question for the judge and does not violate the constitutional right to a jury trial on every element of the offense. People v. Smith, 198 Colo. 120, 597 P.2d 204 (1979), abrogated in People v. Vance, 933 P.2d 576 (Colo. 1997).

Materiality is an element of the offense of first-degree perjury entitling a defendant to have a jury determine whether his false statement is material. People v. Vance, 933 P.2d 576 (Colo. 1997)(abrogating People v. Smith, 198 Colo. 120, 597 P.2d 204 (1979)).

A mistrial is an "official proceeding" within the meaning of this section. People v. Valdez, 39 Colo. App. 213, 568 P.2d 71 (1977).

Lawyer knowingly presenting perjuring witness commits subornation of perjury. A lawyer who presents a witness knowing that the witness intends to commit perjury thereby engages in the subornation of perjury. People v. Schultheis, 638 P.2d 8 (Colo. 1981).

Written as well as oral statements may be made under "oath." People v. Chaussee, 847 P.2d 156 (Colo. App. 1992), aff'd in part and rev' d in part on other grounds, People v. Chaussee, 880 P.2d 749 (Colo. 1994).

"Official proceeding", which includes judicial proceedings in the course of which depositions are given under oath, must be read as including interrogatories. People v. Chaussee, 847 P.2d 156 (Colo. App. 1992), aff'd in part and rev' d in part on other grounds, People v. Chaussee, 880 P.2d 749 (Colo. 1994).

Applied in People v. Frayer, 661 P.2d 1189 (Colo. App. 1982), aff'd, 684 P.2d 927 (Colo. 1984).


 

18-8-502 - Perjury in the first degree.

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(1) A person commits perjury in the first degree if in any official proceeding he knowingly makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law.

(2) Knowledge of the materiality of the statement is not an element of this crime, and the defendant's mistaken belief that his statement was not material is not a defense, although it may be considered by the court in imposing sentence.

(3) Perjury in the first degree is a class 4 felony.

 

Source: L. 71: R&RE, p. 463, § 1. C.R.S. 1963: § 40-8-502. L. 77: (1) amended, p. 967, § 46, effective July 1.

Am. Jur.2d. See 60 Am. Jur.2d, Perjury, § § 1, 4, 31.

C.J.S. See 70 C.J.S., Perjury, § § 2, 5, 12, 17.

Annotator's note. Since § 18-8-502 is similar to former § 40-7-1, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Ruling of unconstitutionality disapproved . People v. Loomis, 698 P.2d 1320 (Colo. 1985).

The elements of perjury are the falsity of the testimony, its materiality to the issue in the contempt matter, that the oath was administered in a proper proceeding, and the criminal intent. Marrs v. People, 135 Colo. 458, 312 P.2d 505 (1957).

To convict of the crime of perjury it must appear not only that the alleged false testimony was given, and that it was false, but also that it was material. It must be shown to have had a legitimate tendency to prove or disprove some fact material to the matter being investigated. McClelland v. People, 49 Colo. 538, 113 P. 640 (1911).

Not every false statement constitutes perjury. People v. Onorato, 36 Colo. App. 178, 538 P.2d 898 (1975).

To be perjurious, a false statement must also be "material." People v. Onorato, 36 Colo. App. 178, 538 P.2d 898 (1975).

Witness may be guilty of perjury in swearing falsely to any material circumstance. A witness may be guilty of perjury, not only by swearing corruptly and falsely to the fact which is immediately in issue, but also to any material circumstance which legitimately tends to prove or disprove such fact; or to any circumstance which has the effect to strengthen and corroborate the testimony upon the main fact. Thompson v. People, 26 Colo. 496, 59 P. 51 (1899); Stonebraker v. People, 89 Colo. 550, 4 P.2d 915 (1931); Papas v. People, 98 Colo. 306, 55 P.2d 1330 (1936).

It is not necessary to prove that each and all of the answers of the defendant were false, but if the jury believes beyond a reasonable doubt that the defendant had wilfully sworn falsely to any of the material statements charged, it was their duty to find him guilty. Marrs v. People, 135 Colo. 458, 312 P.2d 505 (1957).

Probable cause existed where the evidence, taken in a light most favorable to the prosecution, showed the defendant lied to the small claims court and showed a document to the small claims court that he allegedly forged, the referee stated that someone was being dishonest, and the document presented contained certain features consistent with a tracing attempt. People v. Scott, 785 P.2d 931 (Colo. 1990).

Materiality is question of law. The court must determine, as a matter of law, whether or not the alleged false testimony is material to the issue. Treece v. People, 96 Colo. 32, 40 P.2d 233 (1934).

In a prosecution for perjury the question of the materiality of the testimony alleged to be false is one of law for the court and not the jury. Marrs v. People, 135 Colo. 458, 312 P.2d 505 (1957).

The people have the burden of proving "materiality" of a false statement and that element may not be presumed. People v. Onorato, 36 Colo. App. 178, 538 P.2d 898 (1975).

Materiality. A false statement is material for purposes of subsection (1) if it could have affected the outcome of the official proceeding. People v. Scott, 785 P.2d 931 (Colo. 1990); People v. Drake, 841 P.2d 364 (Colo. App. 1992).

Materiality must appear by facts or direct averment. It is not necessary that the information should set forth how or in what way the evidence alleged to be false was material to the issue. It is sufficient if its materiality appears either from the facts alleged or by direct averment. Thompson v. People, 26 Colo. 496, 59 P. 51 (1899); Treece v. People, 96 Colo. 32, 40 P.2d 233 (1934).

Issue of materiality must be submitted to jury. People v. Vance, 933 P.2d 576 (Colo. 1997).

Knowledge of materiality is not an element of the crime of first-degree perjury. People v. Vance, 933 P.2d 576 (Colo. 1997).

Failure to submit issue of materiality to jury is structural defect and not harmless error. People v. Vance, 933 P.2d 576 (Colo. 1997).

A perjury conviction may be predicated upon false statements made before a grand jury. People v. Onorato, 36 Colo. App. 178, 538 P.2d 898 (1975).

Statements made during a mistrial may be grounds for perjury under this section. People v. Valdez, 39 Colo. App. 213, 568 P.2d 71 (1977).

The defendant's attempted retraction in a retrial having the same case number as the mistrial does not afford him protection from conviction of first degree perjury under this section. People v. Valdez, 39 Colo. App. 213, 568 P.2d 71 (1977).

Defendant must be informed of issue against him. When tried on an indictment alleging that perjury was committed before a grand jury, the defendant is entitled to be advised by the indictment what the issue is, or as to the nature of the point in question, so that he may prepare himself to show, if he can, that though the testimony be false, it was not material. Treece v. People, 96 Colo. 32, 40 P.2d 233 (1934).

Absence of warning as to privilege against self-incrimination does not protect perjury. The required warning concerning one's privilege against self-incrimination in grand jury appearance relates to admissions concerning past acts, and its absence does not grant witnesses the right to commit perjury before the grand jury. People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973).

And testimony not to be suppressed in later perjury prosecution. Defendants who were not advised of their rights against self-incrimination prior to their grand jury appearance are not entitled to have their testimony before the grand jury suppressed in later perjury prosecution. People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973).

Inconsistent answer relating to credibility is material. If a witness, in answering a question asked for the purpose of laying a foundation for impeachment by a showing of former inconsistent statements, testifies under oath that he did not at a designated time and place make certain statements to officers concerning the whereabouts of the defendant on a certain day, which answers are inconsistent with his testimony on the trial, such testimony is material on the question of his credibility, and if knowingly false, constitutes perjury. Papas v. People, 98 Colo. 306, 55 P.2d 1330 (1936).

Necessity for record of testimony. The record of the case in which perjury is alleged to have been committed must be produced, and the people must display so much of the testimony given in that hearing as shows clearly the materiality of the testimony alleged to have been falsified. McClelland v. People, 49 Colo. 538, (1911).

Sufficiency of information. An information for perjury under this section which charges that it was committed in the "district court of San Miguel county, Colorado", charged with sufficient certainty before what court the alleged false oath was taken; it is not necessary to state the name of the clerk of the court by whom the oath was administered. Smith v. People, 32 Colo. 251, 75 P. 914 (1904).

An information charging perjury in a grand jury investigation should set forth the subject matter of the investigation in which the alleged false testimony was given, and facts, not conclusions, must be averred. If the information is defective in this particular, the prosecution must fail. Treece v. People, 96 Colo. 32, 40 P.2d 233 (1934).

An information that in substance alleges that before a certain district court, properly describing the court, upon the trial of a certain criminal case, the defendant was duly sworn as a witness by the deputy clerk who had authority to administer the oath, sufficiently conforms to this section and by necessary implication states that the proceeding in which the oath was administered was one over which the court had jurisdiction. Thompson v. People, 26 Colo. 496, 59 P. 51 (1899); Papas v. People, 98 Colo. 306, 55 P.2d 1330 (1936).

The information charged that the defendant "feloniously, wilfully, corruptly, and falsely" swore that he did not make the statement and then charged that he did make the statement, and concludes with the further allegation "all of which he, the said A, well knew". With these allegations in the information, it is not conceivable that the defendant was not advised that he was charged with swearing falsely that a certain fact was true, with knowledge of its falsity. To hold otherwise requires so "skillful an elimination of the obvious" that it would not be attempted except by one versed in the technicalities and evasions of the criminal law. Papas v. People, 98 Colo. 306, 55 P.2d 1330 (1936).

Sufficiency of indictment. Indictment for perjury was not fatally defective where the indictment, by implication, indicated that the converse of defendant's testimony was the truth, and the indictment was sufficiently definite to inform the defendant of the charges against him so as to enable him to prepare a defense and to plead the judgment in bar of any further prosecutions for the same offense. People v. Mazza, 182 Colo. 166, 511 P.2d 885 (1973).

Insufficiency of indictment. The perjury charge failed to set forth with sufficient specificity the falsity of the defendant's statements before the grand jury so as to enable him to prepare his defense, where the device by which the defendant was charged with perjury in the indictment was a verbatim partial transcript of the defendant's actual testimony before the grand jury, but there was no averment of fact to demonstrate the falsity of the testimony on which the charge was based. People v. Broncucia, 189 Colo. 334, 540 P.2d 1101 (1975), cert. denied, 431 U.S. 937, 97 S. Ct. 2647, 53 L. Ed.2d 254 (1977).

Joinder of counts in indictment. Two separate counts charging perjury, the first under this section and the second under the following section, were properly joined in one indictment where the two counts were admittedly based upon the same facts, and such facts would render defendants guilty under both sections. People v. Swanson, 109 Colo. 371, 125 P.2d 637 (1942).

Proof required to support conviction. To support a conviction for perjury, the offense must be proved by the testimony of two witnesses or the testimony of one witness and independent, corroborating evidence which is deemed of equal weight to the testimony of another witness. People v. Mazza, 182 Colo. 166, 511 P.2d 885 (1973).

Evidence of defendant's familiarity with crime about which he perjured himself. Evidence in prosecution for perjury which, if believed by the jury, demonstrated defendant's familiarity with the alleged crime about which defendant was being interrogated by the grand jury, was relevant and material to show defendant's knowledge of the perjurious nature of his testimony and his motive for falsifying his testimony. People v. Mazza, 182 Colo. 166, 511 P.2d 885 (1973).

Jury instruction . Where jury instruction failed to include an essential part of the two-witness rule in prosecution for perjury, i.e., that the corroborating evidence must be deemed of equal weight to the testimony of another witness, this omission was harmless error inasmuch as there was direct testimony by three witnesses contradicting the defendant's grand jury testimony. People v. Mazza, 182 Colo. 166, 511 P.2d 885 (1973).

Evidence sufficient to establish guilt beyond reasonable doubt. People v. Concialdi, 191 Colo. 561, 554 P.2d 1094 (1976).

Written versus oral statements. The difference between first- and second-degree perjury does not turn on whether a statement is written versus oral, but rather upon whether a false statement made under oath occurs in an "official proceeding." People v. Chaussee, 847 P.2d 156 (Colo. App. 1992), aff'd in part and rev' d in part on other grounds, People v. Chaussee, 880 P.2d 749 (Colo. 1994).

Applied in People v. Francois, 198 Colo. 249, 598 P.2d 144 (1979); People v. Maestas, 199 Colo. 143, 606 P.2d 849 (1980).


 

18-8-503 - Perjury in the second degree.

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(1) A person commits perjury in the second degree if, other than in an official proceeding, with an intent to mislead a public servant in the performance of his duty, he makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law.

(2) Perjury in the second degree is a class 1 misdemeanor.

 

Source: L. 71: R&RE, p. 463, § 1. C.R.S. 1963: § 40-8-503.

Am. Jur.2d . See 60 Am. Jur.2d, Perjury, § § 1, 4.

C.J.S. See 70 C.J.S., Perjury, § § 2, 5, 12, 17.

Annotator's note. Since § 18-8-503 is similar to former § 40-7-1, C.R.S. 1963, a relevant case construing that provision has been included in the annotations to this section.

To make a valid oath, for the falsity of which perjury will lie, there must be in some form, in the presence of an officer authorized to administer it, an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath. Rogers v. People, 161 Colo. 317, 422 P.2d 377 (1966).

No presumption of oath-taking is held to apply where the notary's testimony was equivocal on the issue of whether the oath was taken. Rogers v. People, 161 Colo. 317, 422 P.2d 377 (1966).

Independent proof required where presumption fails. Although in some cases a criminal conviction may be had upon a bare presumption, the presumption so allowed must fall where there is some evidence to counter the notion that the oath was actually taken. The courts then require independent proof of the actual oath-taking. Rogers v. People, 161 Colo. 317, 422 P.2d 377 (1966).

Written versus oral statements. The difference between first- and second-degree perjury does not turn on whether a statement is written versus oral, but rather upon whether a false statement made under oath occurs in an "official proceeding." People v. Chaussee, 847 P.2d 156 (Colo. App. 1992), aff'd in part and rev' d in part on other grounds, People v. Chaussee, 880 P.2d 749 (Colo. 1994).

Applied in People v. Francois, 198 Colo. 249, 598 P.2d 144 (1979).


 

18-8-503.5 - Perjury on a motor vehicle registration application. (Repealed)

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Source: L. 90: Entire section added, p. 1801, § 5, effective July 1. L. 94: Entire section repealed, p. 2541, § 5, effective January 1, 1995.


 

18-8-504 - False swearing.

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(1) A person commits false swearing if he knowingly makes a materially false statement, other than those prohibited by sections 18-8-502 and 18-8-503, which he does not believe to be true, under an oath required or authorized by law.

(2) False swearing is a class 1 petty offense.

 

Source: L. 71: R&RE, p. 463, § 1. C.R.S. 1963: § 40-8-504. L. 77: (1) amended, p. 968, § 47, effective July 1.

Am. Jur.2d. See 60 Am. Jur.2d, Perjury, § 3.

Applied in People v. Francois, 198 Colo. 249, 598 P.2d 144 (1979).


 

18-8-505 - Perjury or false swearing - inconsistent statements.

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(1) Where a person charged with perjury or false swearing has made inconsistent material statements under oath, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant. In such case it shall not be necessary for the prosecution to prove which statement was false but only that one or the other statement was false and not believed by the defendant to be true.

(2) The highest offense of which a person may be convicted in such an instance shall be determined by hypothetically assuming each statement to be false. If the assumption establishes perjury of different degrees, the person may be convicted of the lesser degree at most. If perjury or false swearing is established by the making of the two statements, the person may be convicted of false swearing at the most.

 

Source: L. 71: R&RE, p. 464, § 1. C.R.S. 1963: § 40-8-505. L. 73: p. 535, § 4.

Am. Jur.2d. See 60 Am. Jur.2d, Perjury, § § 3, 101.


 

18-8-506 - Perjury and false swearing - proof.

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In any prosecution for perjury or false swearing, except a prosecution based upon inconsistent statements pursuant to section 18-8-505, falsity of a statement may not be established solely through contradiction by the uncorroborated testimony of a single witness.

 

Source: L. 71: R&RE, p. 464, § 1. C.R.S. 1963: § 40-8-506.

Am. Jur.2d. See 60 Am. Jur.2d, Perjury, § § 1, 3, 82.

C.J.S. See 70 C.J.S., Perjury, § § 40-47.

Section requires testimony of two witnesses or witness plus corroboration of equal weight. In face of the positiveness of § 16-5-204, requiring at least two witnesses to the same fact to find an indictment for perjury, it would seem incongruous to prosecute and convict on less direct proof than is required to indict, and, therefore, if a conviction is to stand on the testimony of one witness and corroborating circumstances, such corroboratory proof must meet the strict requirement of quality equal to the weight of another witness. Lindsay v. People, 119 Colo. 438, 204 P.2d 878 (1949) (decided under former CSA, C. 48, § 448).

To convict one of the crime of perjury the offense must be proved by the testimony of two witnesses, or the testimony of one witness and by other independent and corroborating circumstances which are deemed of equal weight of the testimony of another witness. Marrs v. People, 135 Colo. 458, 312 P.2d 505 (1957) (decided under former § 39-3-2, CRS 53); People v. Losinki, 710 P.2d 1163 (Colo. App. 1985).

Requirements of "two-witness" rule can be satisfied by independent documentary evidence if that evidence is of sufficient weight. People v. Fueston, 717 P.2d 978 (Colo. App. 1985), aff'd in part and rev' d in part on other grounds, 749 P.2d 952 (Colo. 1988).


 

18-8-507 - Perjury and false swearing - previous criminal action.

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No prosecution may be brought under sections 18-8-502, 18-8-503, or 18-8-504 if the substance of the defendant's false statement is the entry of a plea of not guilty in a previous criminal action in which he or she was accused of an offense.

 

Source: L. 71: R&RE, p. 464, § 1. C.R.S. 1963: § 40-8-507. L. 2000: Entire section amended, p. 28, § 1, effective July 1.

Editor's note: Section 2 of chapter 11, Session Laws of Colorado 2000, provides that the act amending this section applies to any violation of section 18-8-502, 18-8-503, or 18-8-504, Colorado Revised Statutes, committed on or after July 1, 2000.

Am. Jur.2d. See 60 Am. Jur.2d, Perjury, § § 1, 3, 111, 112.

C.J.S. See 70 C.J.S., Perjury, § 33.


 

18-8-508 - Perjury - retraction.

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No person shall be convicted of perjury in the first degree if he retracted his false statement in the course of the same proceeding in which it was made. Statements made in separate hearings at separate stages of the same trial or administrative proceeding shall be deemed to have been made in the course of the same proceeding. Retraction is an affirmative defense.

 

Source: L. 71: R&RE, p. 464, § 1. C.R.S. 1963: § 40-8-508.

Cross references: For affirmative defenses generally, see § § 18-1-407, 18-1-710, and 18-1-805.

Am. Jur.2d. See 60 Am. Jur.2d, Perjury, § 107.

The only requirement under the section is that the witness recant during the course of a single continuous trial, which may include various hearings and stages which are a part thereof. People v. Valdez, 39 Colo. App. 213, 568 P.2d 71 (1977).

A trial which ends in a mistrial and a retrial are "separate proceedings," rather than "separate hearings at separate stages of the same trial." People v. Valdez, 39 Colo. App. 213, 568 P.2d 71 (1977).


 

18-8-509 - Perjury and false swearing - irregularities no defense.

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(1) It is no defense to a prosecution under sections 18-8-502 to 18-8-504 that:

(a) The defendant was not competent, for reasons other than mental disability or immaturity, to make the false statement alleged;

(b) The statement was inadmissible under the law of evidence;

(c) The oath was administered or taken in an irregular manner; or

(d) The person administering the oath lacked authority to do so, if the taking of the oath was required by law.

 

Source: L. 71: R&RE, p. 464, § 1. C.R.S. 1963: § 40-8-509.

Am. Jur.2d. See 60 Am. Jur.2d, Perjury, § 106.

C.J.S. See 70 C.J.S., Perjury, § § 29, 32.


 

18-8-703 - Bribing a witness or victim.

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(1) A person commits bribing a witness or victim if he or she offers, confers, or agrees to confer any benefit upon a witness, or a victim, or a person he or she believes is to be called to testify as a witness or victim in any official proceeding, or upon a member of the witness' family, a member of the victim's family, a person in close relationship to the witness or victim, or a person residing in the same household as the witness or victim with intent to:

(a) Influence the witness or victim to testify falsely or unlawfully withhold any testimony; or

(b) Induce the witness or victim to avoid legal process summoning him to testify; or

(c) Induce the witness or victim to absent himself or herself from an official proceeding.

(2) Bribing a witness or victim is a class 4 felony.

 

Source: L.84: Entire part added, p. 501, § 4, effective July 1. L. 2004: IP(1) and (1)(c) amended, p. 435, § 1, effective July 1.

Editor's note: The provisions of this section were formerly contained in section 18-8-602 prior to its repeal in 1984. (For the historical record of section 18-8-602, see said section as contained in the 1978 Replacement Volume 8, Colorado Revised Statutes.)

Am. Jur.2d . See 58 Am. Jur.2d, Obstructing Justice, §§2-4, 20, 31, 46, 63.

C.J.S. See 11 C.J.S., Bribery, §§3, 9, 10; 67 C.J.S., Obstructing Justice, § 18.

An attorney found guilty of subornation of perjury under this section will be disbarred. People ex rel. Colorado Bar Ass' n v. McCann, 80 Colo. 220, 249 P. 1093 (1926) (decided under former C.L. § 6777).


 

18-8-707 - Tampering with a witness or victim.

(1) A person commits tampering with a witness or victim if he intentionally attempts without bribery or threats to induce a witness or victim or a person he believes is to be called to testify as a witness or victim in any official proceeding or who may be called to testify as a witness to or victim of any crime to:

(a) Testify falsely or unlawfully withhold any testimony; or

(b) Absent himself from any official proceeding to which he has been legally summoned; or

(c) Avoid legal process summoning him to testify.

(2) Tampering with a witness or victim is a class 4 felony.

 

Source: L.84: Entire part added, p. 502, § 4, effective July 1.

Editor's note: The provisions of this section were formerly contained in section 18-8-605 prior to its repeal in 1984. (For the historical record of section 18-8-605, see said section as contained in the 1978 Replacement Volume 8, Colorado Revised Statutes.)

Annotator's note. Since § 18-8-707 is similar to former § 18-8-605, relevant cases construing that provision have been included with the annotations to this section.

History of statute. The tampering-with-a-witness statute defines a new statutory crime and does not have its genesis in subornation of perjury. People v. Francois, 198 Colo. 249, 598 P.2d 144 (1979).

The drafters of the model penal code from which former § 18-8-605 derived considered subornation of perjury to be a superfluous restatement of accomplice liability and proposed that persons accused of conduct amounting to subornation of perjury be prosecuted under the accomplice and solicitation statutes. People v. Francois, 198 Colo. 249, 598 P.2d 144 (1979).

Success not element of crime. Under former § 18-8-605, it was not necessary that the defendant succeed in his attempt or actually induce the witness to do anything. People v. Moyer, 670 P.2d 785 (Colo. 1983).

Materiality not element of offense. A trial court's instruction injecting the element of materiality into the tampering-with-a-witness statute was improper. People v. Francois, 198 Colo. 249, 598 P.2d 144 (1979).

Probable cause established. Where the evidence and the reasonable inferences which could be drawn from it established that the defendant told the witness that if she or 10 people testified before the grant jury, the defendant would sue the witness or any of the 10 persons for perjury and that the defendant was aware that the witness had talked with the district attorney at the time his statements were made, this evidence established probable cause to believe that the defendant committed the crime of tampering with a witness. People v. Moyer, 670 P.2d 785 (Colo. 1983).

Portions of written communications between the defendant and his wife were for the purpose of aiding the crime of witness tampering and were held to be admissible and not confidential. People v. Fox, 862 P.2d 1000 (Colo. App. 1993).


 

Commentary

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Under current law the standard of proof of perjury is set at such a high level that the law simply isn't enforced.

From 2000 through 2010 misdemeanor perjury cases averaged only 9 cases per year (Table 70 and Table 71) as reported by the Colorado State Court Administrator. Felony cases of perjury are not published separately and so the number is unknown but small.

The only time we are aware of that false allegations are prosecuted is when the person making such false claims confesses. Even then, in domestic violence cases, when the woman wants to recant or changes her story, often multiple times, there is no penalty applied.

The problems with perjury and subornation of perjury are compounded when the alleged crime is domestic violence or abuse. It is no secret that victim's advocates, shelter workers, advocacy groups, and some attorneys routinely advise women to file domestic violence charges and protection orders against their husbands and lovers, and often provide explicit instructions on how to do so. Outside the domestic violence and divorce industry such actions are known, and abhorred, as subornation of perjury.

But in Colorado the subornation of perjury is not a criminal act. Further, Colorado law exempts any victim's advocate who provides such information from liability for any harm that may result from such perjury. However, there was still the question of whether a defendant who stood accused of domestic violence as a direct or indirect result of subornation of perjury might have access to the information provided by domestic violence advocates to his accuser, or whether that is "privileged" information? But the legislature in 1994 and 1995 thoughtfully closed that loophole with § 13-90-107(1)(k) C.R.S. which states:

(1)(k) (I) A victim's advocate shall not be examined as to any communication made to such victim's advocate by a victim of domestic violence, as defined in section 18-6-800.3 (1), C.R.S., or a victim of sexual assault, as described in sections 18-3-401 to 18-3-405.5, 18-6-301, and 18-6-302, C.R.S., in person or through the media of written records or reports without the consent of the victim.

(II) For purposes of this paragraph (k), a "victim's advocate" means a person at a battered women's shelter or rape crisis organization or a comparable community-based advocacy program for victims of domestic violence or sexual assault and does not include an advocate employed by any law enforcement agency:

(A) Whose primary function is to render advice, counsel, or assist victims of domestic or family violence or sexual assault; and

(B) Who has undergone not less than fifteen hours of training as a victim's advocate or, with respect to an advocate who assists victims of sexual assault, not less than thirty hours of training as a sexual assault victim's advocate; and

(C) Who supervises employees of the program, administers the program, or works under the direction of a supervisor of the program.

So under current law with a mere 15 hours of training and the claim that one is a "victim's advocate" anyone is exempt from the pains and penalties of perjury or subornation of perjury. That exemption has been upheld by the Colorado Supreme Court in case 04 SA 178 (PDF) unless the alleged "victim" explicitly waives the privilege.

We see no way in which any legal system can function if perjury, subornation of perjury, and false allegations are not prosecuted. And we are aware of many instances in which the perjury was well known. In short, in Colorado courts today, the best liar wins, especially if domestic violence or abuse can be claimed.

Truth and justice are the losers, and society totters.

Federal definitions

Perjury

When a person, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the U.S. authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or in any declaration, certificate, verification, or statement under penalty of perjury, willfully subscribes as true any material matter which he does not believe to be true; 18 USC

In order for a person to be found guilty of perjury the government must prove: the person testified under oath before [e.g., the grand jury]; at least one particular statement was false; and the person knew at the time the testimony was false.

The testimony of one witness is not enough to support a finding that the testimony was false. There must be additional evidence, either the testimony of another person or other evidence, which tends to support the testimony of falsity. The other evidence, standing alone, need not convince that the testimony was false, but all the evidence on the subject must do so.

Subordnation of perjury

The procuring another to commit legal perjury, who in consequence of the persuasion takes the oath to which he (or she) has been incited.

To complete the offence, the false oath must be actually taken, and no abortive attempt to solicit will complete the crime.

But the criminal solicitation to commit perjury, though unsuccessful, is a misdemeanor at common law.

The act of congress of March 3, 1825, provides, that if any person shall knowingly or wilfully procure any such perjury, mentioned in the act, to be committed, every such person so offending, shall be guilty of subornation of perjury, and shall, on conviction thereof, be punished by fine, not exceeding two thousand dollars, and by imprisonment and confinement to hard labor, not exceeding five years, according to the aggravation of the offence.


 

Suggested revisions

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While the following suggestions are incomplete and rudimentary we see nothing more fundamental to the rule of law than the enforcement of truth under oath or affirmation.

Proposed changes follow the format:

• Text in ordinary font is language that exists now.

Note: indicates intention or reasons for proposed changes in following section.

• Language to be removed is indicated by striking it out.

• Language to be added is indicated by text in [non-proportional Courier font] surrounded by square brackets [ ].

• Note that we have not attempted here to define all required definitions and standards as any attempt to adopt these suggestions would necessarily require modifications and revisions that would affect such definitions.


 

18-8-502 - Perjury in the first degree.

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(1) A person commits perjury in the first degree if in any official proceeding he [or she] knowingly [or willfully] makes a materially false statement, which he [or she] does not believe to be true [, or beyond a reasonable doubt could be expected to know is not true], under an oath required or authorized by law.

(2) Knowledge of the materiality of the statement is not an element of this crime, and the defendant's mistaken belief that his [or her] statement was not material is not a defense, although it [and] may [not] be considered by the court in imposing sentence.

(3) Perjury in the first degree is a class 4 [class 3] felony [ except in cases where the perjury results in the conviction of a person charged with murder in the first degree (C.R.S. 18-3-102(c)) where it is a class 1 felony] .

[(4) Where a person is subject to penalties or restraints based solely or primarily on perjury of a witness against that person, those penalties or restraints shall be dismissed and all evidence of such allegations purged from all official records.

(5) In addition to any other penalties imposed by the court, the following conditions shall apply upon conviction of perjury:

(a) As provided in Article XII, Section 4 of the Colorado Constitution no person convicted of perjury shall be eligible to the general assembly, or capable of holding any office of trust or profit in this state.

(b) As provided in C.R.S. 12-5-108 any person admitted to practice as an attorney — or counselor-at-law within this state shall be permanently disbarred upon conviction of perjury.]


 

18-8-503 - Perjury in the second degree.

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(1) A person commits perjury in the second degree if, other than in an official proceeding, with an intent to mislead a public servant in the performance of his duty, he [or she] makes a materially false statement, which he [or she] does not believe to be true [, or beyond a reasonable doubt could be expected to know is not true] under an oath required or authorized by law.

(2) Perjury in the second degree is a class 1 misdemeanor [5 felony except in cases where the perjury directly or indirectly results in the conviction of a person charged with murder in the first degree (C.R.S. 18-3-102(c)) where it is a class 1 felony].

[(3) Where a person is subject to penalties or restraints based solely or primarily on perjury of a witness against that person, those penalties or restraints shall be dismissed and all evidence of such allegations purged from all official records.

(4) In addition to any other penalties imposed by the court, the following conditions shall apply upon conviction of perjury:

(a) As provided in Article XII, Section 4 of the Colorado Constitution no person convicted of perjury shall be eligible to the general assembly, or capable of holding any office of trust or profit in this state.

(b) As provided in C.R.S. 12-5-108 any person admitted to practice as an attorney- or counselor-at-law within this state shall be permanently disbarred upon conviction of perjury.]


 

18-8-504 - False swearing.

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(1) A person commits false swearing if he [or she] knowingly makes a materially false statement, other than those prohibited by sections 18-8-502 and 18-8-503, which he [or she] does not believe to be true [, or beyond a reasonable doubt could be expected to know is not true] , under an oath required or authorized by law.

(2) False swearing is a class 1 petty offense [misdemeanor except in cases where the false swearing directly or indirectly results in the conviction of a person charged with murder in the first degree (C.R.S. 18-3-102(c)) where it is a class 1 felony].

[(3) Where a person is subject to penalties or restraints based solely or primarily on the false allegations of a witness against that person, those penalties or restraints shall be dismissed and all evidence of such allegations purged from all official records.]


 

18-8-510 - Subornation of perjury

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Notes:

While the subornation of perjury is defined as grounds for disbarment, and for barring a person from holding a state office in the state constitution, it is not in and of itself a crime at present. That absence, or loophole, encourages attorneys, victim's advocates, shelter workers, etc., to "suggest" to their clients that obtaining a restraining order might be to their advantage. Many shelters provide boilerplate language for use by women in filing DV charges or restraining orders claiming abuse. Victim's advocates will frequently help women write out requests for restraining orders when asked.

A lawyer who presents a witness knowing that the witness intends to commit perjury thereby engages in the subornation of perjury {People v. Schultheis, 638 P.2d 8 (Colo. 1981)} and under Article XXII, Section 18 of the Colorado Constitution such an attorney is to be disbarred. However, statutory enforcement of that provision of the Constitution is currently lacking.

A major problem today is that despite C.R.S. § 18-8-703 individuals are often coached to file charges such as domestic violence or obtain restraining orders without factual basis. Prosecutors frequently suborn witnesses in plea bargains in order to obtain convictions. And despite the language in the comments for C.R.S. § 18-8-707 suggesting

"The drafters of the model penal code from which former § 18-8-605 derived considered subornation of perjury to be a superfluous restatement of accomplice liability and proposed that persons accused of conduct amounting to subornation of perjury be prosecuted under the accomplice and solicitation statutes."

no penalty, definition, or crime is presently associated with subornation of perjury in the C.R.S.

As no legal system can persist where the practitioners are free to encourage and suggest perjury, and false allegations, the following statute regarding subornation of perjury is proposed:

 

[(1) Any person who presents a witness in any official proceeding knowing or having reasonable cause to believe that the witness intends to commit perjury thereby engages in the subornation of perjury.

(2) Any person who helps or suggests that a witness commit perjury or false swearing in any official proceeding or sworn document commits subornation of perjury.

(3) Any person who presents a witness in any official proceeding and subsequently hears said witness commit perjury or make a false allegation, or learns by any means during or at any time after the proceeding that the witness committed perjury or made a false allegation, that person commits subornation of perjury unless immediate steps are taken to publicly retract said testimony or presentation from the proceedings if in progress, or within 10 calendar days if the proceedings have concluded, and withdraw from representing the witness on the basis that the witness has committed perjury or made a false allegation.

(a) In the event a witness is left without representation during an official proceeding due to withdrawal of available counsel on the grounds that the witness committed perjury or made a false allegation then the proceedings will be dismissed, recessed, or a mistrial declared; and time given to allow the witness to obtain new counsel unless;

(b) A witness who has committed perjury or made a false allegation during an official proceeding retracts the statements or other evidence of perjury, as permitted under C.R.S. § 18-8-508 or by the court, and may waive their right to a continuation or a mistrial and allow the proceedings or trial to continue with or without counsel present.

(4) Where a person is subject to penalties or restraints based solely or primarily on subornation of perjury or false allegations of a witness against that person, those penalties or restraints shall be dismissed and all records of such allegations purged from all official proceedings.

(5) In all plea bargains where a witness provides testimony, documents, or other information against others, the court will satisfy itself on the record, and before the jury if the case has proceeded to trial, that the witness has not been suborned in any manner before allowing the witness to testify or admitting any documents or other information as evidence in the case.

(6) Subornation of perjury is a class 3 felony except in cases where the subornation results directly or indirectly in the conviction of a person charged with murder in the first degree (C.R.S. 18-3-102(c)) where it is a class 1 felony.

(7) In addition to any other penalties imposed by the court, the following conditions shall apply to anyone convicted of subornation of perjury:

(a) As provided in Article XII, Section 4 of the Colorado Constitution, no person convicted of subornation of perjury shall be eligible to the general assembly, or capable of holding any office of trust or profit in this state.

(b) As provided in C.R.S. § 12-5-108 any person admitted to practice as an attorney- or counselor-at-law within this state shall be permanently disbarred upon conviction of subornation of perjury.

(c) Upon conviction of subornation of perjury a person shall surrender any and all licenses issued by the state or other jurisdictions within it's borders and that person shall not be eligible for reinstatement of any such licenses for a period of 5 years.

(d) A person convicted of subornation of perjury shall not at any future time draw any funds or compensation from the State of Colorado or any jurisdiction within it's borders either directly or indirectly in any form including salary, loans, grants, pensions, or any other form of payment, settlement, emolument, or recompense.]

13-90-107. Who may not testify without consent.

Note:

In People v. Turner 04 SA 178 the state supreme court ruled that a defendant in a criminal domestic violence case had no right to obtain documentation of what was probably subornation of perjury against him by a victim's advocate.

 

(1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:

(k) (I) A victim's advocate shall not be examined as to any communication made to such victim's advocate by a victim of domestic violence, as defined in section 18-6-800.3 (1), C.R.S., or a victim of sexual assault, as described in sections 18-3-401 to 18-3-405.5, 18-6-301, and 18-6-302, C.R.S., in person or through the media of written records or reports without the consent of the victim.

(II) For purposes of this paragraph (k), a "victim's advocate" means a person at a battered women's shelter or rape crisis organization or a comparable community-based advocacy program for victims of domestic violence or sexual assault and does not include an advocate employed by any law enforcement agency:

(A) Whose primary function is to render advice, counsel, or assist victims of domestic or family violence or sexual assault; and

(B) Who has undergone not less than fifteen hours of training as a victim's advocate or, with respect to an advocate who assists victims of sexual assault, not less than thirty hours of training as a sexual assault victim's advocate; and

(C) Who supervises employees of the program, administers the program, or works under the direction of a supervisor of the program.

[(III) The privilege described in this paragraph (k) does not apply to any class of felony.

(IV) Communications with a victim's advocate are not privileged pursuant to this paragraph (k) if such communications are made for the purpose of aiding the commission of a future crime or of a present continuing crime.]

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