BUSINESS LAW 101 / Perjury

By Albert L. Kelley, Esq.

In every legal movie or television series there is that moment when the witness takes the stand and the judge, or bailiff or clerk asks them to raise their right hand and swear “The testimony I am about to give contains the truth, the whole truth and nothing but the truth, so help me God.” The first question people who don’t usually attend court hearings will ask is, “Does that really happen?”  The answer is yes.  Although the wording may vary slightly from court to court, every witness must swear, or if their religion bars swearing must affirm, that they will only tell the truth.  Our entire court system is based on having witnesses tell the truth.  But we also know that occasionally witnesses don’t tell the truth. This is called perjury and it can land the witness in jail for quite some time.

Perjury is making a false statement, which the person does not believe to be true, under oath, in regard to any material matter.  It can be in an official proceeding or not.  In order to be clear, there are a couple of definitions we need to understand.  First, what is an “Oath”?  An oath means to swear or affirm or make “any other form of attestation required or authorized by law by which a person acknowledges that he or she is bound in conscience or law to testify truthfully in an official proceeding or other official matter.”  So not only does it cover the swearing of the truth of a statement, but the affirmation as well. This allows perjury charges to be brought against people whose religious convictions do not allow them to swear an oath. Second, what do we mean by a “material matter”? A “Material matter” is defined as “any subject, regardless of its admissibility under the rules of evidence, which could affect the course or outcome of the proceeding. Whether a matter is material in a given factual situation is a question of law.” This is a difficult issue for the witness to address.  They often don’t know what issues are material or not.  But at the same time, that doesn’t matter, the law states that the witness’s knowledge of whether the issue is material or not is not a defense.  Therefore, the witness must assume that every statement is material.

While perjury can occur in an official proceeding or not, the penalties are higher when the perjury occurs in an official proceeding.  When it is an official proceeding, the perjury is a third-degree felony.  When not in an official proceeding, it becomes a first-degree misdemeanor. 

Perjury is not limited to what a person says, it can also be in writing.  If a person signs a false affidavit, it can be deemed perjury. The written statement also does not have to be in a court proceeding.  For example, a corporate officer who files a false annual report with the Florida department of State can be charged with perjury. Anyone who “makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree”. Note the use of the word “shall”.  When a statute uses “shall” instead of “may” it is a mandatory determination. If the false written statement is given to a law enforcement officer regarding the commission of any crime, it is a first-degree misdemeanor, unless the alleged crime is a capital crime in which case the charge becomes a third-degree felony.

It is a defense to perjury if the person recants the false statement, but only if they do so in the same conversation where they made the false statement, if their false statement has not yet substantially affected the proceedings and if they recant it before the false statement has been shown to be false and will be exposed as such.

Al Kelley has worked as an attorney in Key West for the last 31 years. He is the author of five law books available through Absolutely Amazing E-Books and the host of “Basics Of The Law”, a weekly YouTube channel. He also previously taught business law, personnel law, and labor law at St. Leo University. This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney. 

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