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Thursday, October 1, 2020

Lying under oath – [perjury] phase 1

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“I swear to tell the truth, the whole truth, and nothing but the truth, so help me Allah”.
A common mantra recited dozens of times, week in week out in our national TV and Radio station – GRTS – Radio and Television, almost every other evening. It is so familiar or has become so common that its significance can be overlooked. But whenever someone is sworn in, either in court or other official proceeding, naturally, two things followed, after everything said: it will either be the truth or perjury.
Perjury, the crime of lying under oath, is a serious offense because it can derail the basic goal of the justice system – discovering the truth. Even the famous and the powerful have faced the consequences of perjury – which includes, Bill Clinton and Marion Jones.

Historically, perjury was defined as lying while under oath or testifying in court. However, in the United States the law now defines the crime to cover not just court trials, but also so many other proceedings – including grand juries, family law court, bail hearing, depositions in civil lawsuits, (Commission of Inquiry). Sworn statements made to governmental agencies and financial affidavits such as loan applications are also covered.

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What is perjury?
A witness under oath commits perjury by making a statement in a court or other proceeding that the witness knows is not true. The statement must be “material” to the subject of the proceeding, meaning that it must have some relationship to the lawsuit, investigation, or inquiry of the proceeding.
Elements or ingredients of perjury included in this list are indicative and not exhaustive. All parts of this definition are important, so let’s take a closer look at each:

 

1) Perjury only happens under oath
The witness must have vowed to tell the truth to someone who is authorized to administer the oath, such as a judge, notary public, or other official. And the proceeding must be “competent” that is authorized by law. For example, in The Gambia, the commission of inquiry will only be a competent proceeding, if the chairperson (he or she is, or has been, a judge of a superior court, whether in The Gambia or outside it), or he or she is qualified to be appointed a judge of a superior court. In America, a grand jury that has launched an investigation that is beyond its powers is not a competent proceeding.

 

2) Perjury requires a statement
Silence or a refusal to give a statement is not perjury, but may lead to other charges. In addition to testimony, a statement adopted in the proceeding, as when a witness authenticate or verifies a false writing while under oath, is also perjury.

 

3) Intent to mislead
The witness must know that the testimony is false and must give it with the intent to mislead the court/commission of inquiry.

 

4) Only false statements are perjury
False testimony that results from confusion, lapse of memory, or mistake is not perjury. Conflicts in testimony may be perjury if one of the conflicting statements is necessarily false (and prosecutor can prove perjury without proving which one is false).

 

5) Inconsistent statements can lead to perjury
A witness’s testimony is viewed as a whole. So, a witness who claimed he did not remember an event when questioned at one point in testimony, but who clearly recalled aspects of the event when asked later, may have committed perjury. In consistent under oath is what led to Bill Clinton’s impeachment, though he survived the impeachment. However, where a witness’s testimony is inconsistent in a way that is of no consequence in the proceeding that is not perjury.

 

6) Only a “material” statement can be perjury
The false statement must be capable of influencing the proceeding – that is, it must have a relationship to the subject of the proceeding. This includes a false statement that would tend to mislead or hamper an investigation. This means that a lie, even under oath, about a subject that is not material to the proceeding is not perjury. For example, falsely bragging that “I never miss my five daily prayers even at work”, while testifying in a case having nothing to do with religion at work, would not be a likely candidate for a perjury charge.

The position of Islam regarding lies and liars:
Allah, the creator of mankind, told us that in the 96th chapter of His Quran: “Lies, aggression and hostility come from the prefrontal lobe of the brain (behind the forehead)”; fourteen hundred years ago before Sigmund Freud existed. Our purely monotheistic Sharia warns against lying in the Quran and Sunnah, and there is consensus that it is haram. The liar will have bad consequences in this world and in the next.
The Prophet (saws) said, “The biggest of Al-kaba’ir (the Great Sins) are: (1) to join others as partners in worship with Allah; (2) to murder a human being; (3) to be undutiful to one’s parents; and (4) to give a false witness”. Sahih Al-Bukhari Hadith 9.10.

 

What happens when you lie under oath?
In theory, if you lie under oath you could be prosecuted for perjury, which is a crime. Lying under oath is against the law. Perjury is a criminal act that occurs when a person lies or makes statements that are not truthful while under oath. For example, if a person is asked to testify in a criminal proceeding and they are under oath but do not tell the truth, they can be charged with perjury if it is discovered that they have lied.
Perjury is considered a serious offence as it can be used to usurp the power of the courts, resulting in miscarriages of justice. In the United States, for example, the general perjury Statute under Federal law classifies perjury as a felony and provides for a prison sentence of up to five years or fine.

In The Gambia, perjury is an offence relating to the administration of justice – Chapter XI – pursuant to Section 95 of the Criminal Code – Perjury and subornation of perjury. To paraphrase Section 95 of the CC – It is immaterial whether the testimony is given on oath or authorized by law. The forms and ceremonies used in administering the oath, whether they are binding the person to speak the truth are immaterial. It is immaterial whether the false testimony is given orally or in writing. Also, it is immaterial whether the person is a competent witness or not, whether the testimony is admissible in the proceeding or not, is a question of law to be determined by the court of trial.

It further states that, a person who commits perjury or suborns perjury (means to instigate or incite a person to commit a wrongful act), is liable on conviction to imprisonment for a term of seven years. The court may forthwith after the conclusion of the proceedings in which the perjury is committed, summarily convict and sentence such witness to imprisonment for a term not exceeding six months, or to a fine not exceeding one thousand dalasis.

Perjury is a statutory offence in England and Wales. It is created by Section 1 (1) of the Perjury Act 1911. The question whether a statement on which perjury is assigned was material, is a question of law to be determined by the court of trial.

A person convicted of perjury is liable to imprisonment for a term not exceeding seven years, or to a fine, or both. No wonder, our own criminal jurisprudence is a direct transplant of the English version.
So, in the final analysis, our own law is harsher than that of the American law even though perjury in America within the Federal context is felony, where as in The Gambia perjury is term misdemeanor.
Penalties are increased in relation to how much the perjury interfered with the proceeding. When the perjurer was a witness in his own criminal trial, his sentence for the underlying conviction may also be increased, on the grounds that a lying defendant is one who has a bad character and is not likely to be rehabilitated quickly or easily.

Judges can punish a perjurer who lied under oath to hide or assist a crime in a way that goes beyond the sentence for perjury. And a perjurer may even be charged as an accessory to a crime of which he is convicted, if he lied to conceal that crime.
There are instances, where prosecutors sometimes offer “immunity” from prosecution to witnesses who themselves are or could be subject to criminal charges, but who have important information that would support a case against another, a more serious criminal defendant. For example, a low-level accomplice might be granted immunity so that he can testify against a crime syndicate’s boss – hmmm! (Ali Baba and the 40 thieves). But false testimony given after a prosecutor has granted a witness immunity may still be a candidate for perjury.

However, perjury is not without defenses, and the most common defenses are:
True statements; recanted or corrected statements; the “perjury traps”, et cetera. The defenses that aren’t or could not make are: Double jeopardy; the limits of immunity given to witnesses. Courtesy of www.criminaldefenselawyer.com.
Conclusion: As you can see, perjury is a complex crime and can arise in many situations. As with all serious legal problems, be sure to consult a lawyer experienced in criminal law if you have questions about perjury or find yourself investigated for the crime or charged with it.
However, a statement like this is not meant to agitate anyone either wittingly or unwittingly. If it does, then words fail me.

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