Rodster Blagojevich keeps on chirping as he inches closer to his federal trial, almost guaranteeing the government a conviction.
By RICHARD MEEHAN
The Cool Justice Report
Feb. 18, 2009
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
The Blago Bunch -- the slap-happy group that brought so many laughs to America with Rod B's "I did nothing wrong" American Tour -- is fighting hard to eclipse the Palin family as the country's political media hogs.
Rodster Blagojevich keeps on chirping as he inches closer to his federal trial, almost guaranteeing the government a conviction. His brother Robert has now surfaced in the inquiry surrounding quasi-Senator Roland Burris. Meanwhile, Burris, Blago's erstwhile senatorial appointee, has removed his foot from his mouth long enough to invite possible indictment on perjury charges for his recent testimony before the Illinois legislature.
Summoned to appear in the impeachment inquiry into Blago's alleged pay for play scheme. Burris, with an attorney at his side, denied, under oath, that he had spoken with anyone from Blago's staff or family prior to his appointment. His subsequent affidavit admitted his contact with First Brother, Rob Blago, thus fueling the perjury fires.
Witness inconsistencies in sworn testimony are not uncommon. There are levels of inconsistency that range from the mere failure of recollection to outright lying. Each is viewed differently under the law. No one has perfect recall, even when they have committed to a prior version of the events. Witnesses sometimes fail to repeat the same version of an event, not with an intent to deceive, but simply because some details have been forgotten.
Our rules of evidence permit the use of a prior recorded statement or prior testimony to impeach the witness' credibility. In a jury trial the court will instruct a jury that they may use that impeached testimony to cast doubt on the remainder of the witness' testimony. Rarely, though, do such inconsistencies lead to perjury charges.
Back when law schools invoked Latin phrases to describe time-tested legal principles, we were taught the concept, "falsus in uno, falsus in omnibus!" Translated, it means: "untrue in one thing, untrue in everything." The principle stems from ancient Roman law. In its earliest application in jury trials, judges would instruct jurors that if they found that a witness lied on one point they could disregard all of that witness' testimony.
In recent years judges have disfavored the concept. Jurors are now instructed that they may consider the inconsistency as a factor in determining whether to believe the witness and to what extent.
Inconsistencies that lead to witness impeachment do not require that the prior statement have been made under oath. In most instances, however, either a prior affidavit or prior sworn testimony is the vehicle by which the witness' current testimony is challenged.
Prior to a 1919 ruling by the U.S. Supreme Court, a trial judge, convinced that a witness lied, often would hold the witness in contempt and order him confined. The witness could come back before the court and purge himself of the contempt by recanting the purportedly false testimony, but still be exposed to a charge of perjury. The court determined that this was an oppressive abuse of authority and disallowed contempt proceedings. The lying witness still, however, risked a perjury charge.
Contrasted with impeachment by prior inconsistent statement, perjury is the outright lie under oath. In Connecticut one commits perjury, " . . . if, in any official proceeding, he intentionally, under oath, makes a false statement, swears, affirms or testifies falsely, to a material statement which he does not believe to be true."
By inclusion of the word "intentionally" the legislature has distinguished the knowing lie from the failure of recollection. An oath or affirmation should require the truth. Sadly, it does not.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. His column also appears in the Sunday Norwich, CT Bulletin. Website, www.meehanlaw.com