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

Statute text

(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.

History

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.

Annotations

 

ANNOTATION

Annotations

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); People v. Ellsworth, 15 P.3d 1111 (Colo. App. 2000).

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). (disapproved of by Supreme Court in Griego v. People, 19 P.3d 1 (Colo. 2001)).

An incorrect jury instruction in a criminal case is not a structural error; instead, such instruction is subject only to harmless or plain error review, following the U.S. supreme court precedent in Neder v. United States, 527 U.S. 1 (1999). Therefore, if a conviction is not attributable to the incorrect instruction, a conviction shall not be overturned and all contrary precedent is disapproved of. Griego v. People, 19 P.3d 1 (Colo. 2001) (disapproving on this point Cooper v. People, 973 P.2d 1234 (Colo. 1999), Bogdanov v. People, 941 P.2d 247 (Colo. 1997), People v. Vance, 933 P.2d 576 (Colo. 1997), People v. Villa-Villa, 983 P.2d 181 (Colo. App. 1999)).

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).