1753
Perjury CasesSpecial Problems and Defenses --
Evasive
and Unresponsive Answers
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Occasionally, a witness will try to mislead the inquiry by giving
answers to questions that, although literally true, are evasive or
unresponsive.
In Bronston v. United States, 409 U.S. 352 (1973), the United States
Supreme Court unanimously held that such conduct does not violate 18 U.S.C.
§
1621, reasoning that "if a witness evades, it is the lawyer's responsibility
to
recognize the evasion and to bring the witness back to the mark, to flush
out the
whole truth with the tools of adversary examination." Id. at 358-59.
Thus, the jury does not focus on whether the statement was intended to
mislead
or divert the examination, but rather considers whether the declarant "does
not
believe his answer to be true." Id. at 359. See also,
United
States v. Debrow, 346 U.S. 374, 376 (1953).
Answers to ambiguous questions similarly cannot support perjury
prosecutions, particularly if it is unreasonable to expect the defendant to
understand the question posed. United States v. Heater, 63 F.3d 311,
327
(4th Cir. 1995)(conviction affirmed; compound question found intelligible),
cert. denied, 116 S.Ct. 796 (1996); United States v. Dean, 55
F.3d
640, 661 (D.C. Cir. 1994)(conviction reversed), cert. denied, 116
S.Ct.
1288 (1996); United States v. Reilly, 33 F.3d 1396, 1416 (7th Cir.
1994)(conviction affirmed); United States v. Boone, 951 F.2d 1526,
1534
(9th Cir. 1991)(conviction affirmed); United States v. Ryan, 828 F.2d
1010, 1015 (3d Cir. 1987). Courts have distinguished Bronston by
considering the context of the defendant's evasive replies. United
States v.
Bryan, 58 F.3d 933, 960 (4th Cir. 1995)(the government's repeated
inquiries
at the previous trial provided sufficient notice to the defendant as to the
broader focus of the questioning); United States v. Abroms, 947 F.2d
1241,
1245 (5th Cir. 1991)("an answer that is responsive and false on its face
does not
come within Bronston's literal truth analysis simply because the
defendant
can postulate unstated premises of the question that would make his answer
literally true"), cert. denied, 505 U.S. 1204 (1992).
Witnesses who claim not to remember, rather than deny a fact, may
be
prosecuted for perjury. However, the government must prove both that the
witness
at one time knew the fact and that the witness must have remembered it at
the
time he or she testified. United States v. Chen, 933 F.2d 793, 795
(9th
Cir. 1991). If the dates of the transaction and testimony are sufficiently
close, memory may be inferred. Instances in which the witness remembered
other
events that occurred at the same time or earlier than the event in question,
or
mentioned the event either immediately before or after his testimony, would
be
probative of the witness's memory at the time of the testimony. The two
witness
rule does not apply to prosecutions based on false memory lapses, and
circumstantial evidence is sufficient, since there is no direct evidence
possible
concerning what the defendant actually believed. Gebhard v. United
States, 422 F.2d 281, 287 (9th Cir. 1970).
[cited in Criminal Resource Manual 1747; USAM 9-69.200] | |