Lora Como

Perjury in Michigan and New York

December 07, 2004
Professor Binder
Advanced Criminal Law

PART I

A crime is committed when a lawful oath is adminiftered, in fome judicial

proceeding, to a perfon who fwears willfully, abfolutely and falfely, in a matter
material to the iffue or point in queftion.

Lord Coke, The Laws of England1

This is how the common law crime of perjury stood when Michigan inherited Lord

Coke’s definition, although Michigan forewent nailing the ears of its guilty to a pillory as

punishment. Since Coke’s treatise makes clear that materiality is a necessary element, perjury

indictments in Michigan, as part of adequately setting forth the crime charged, needed to show

that the defendant’s statements were somehow material to the case. Many of the early cases

disputed whether the indictment sufficiently alleged that materiality. Then, in September 1931,

the Michigan legislature passed Public Act No. 1931 § 423 which established perjury as a

modern statutory crime with language far different than Lord Coke’s, although identical to

Michigan’s revised statutes of 1846. Despite the new wording though, courts continued to

follow the precedents that had arisen from the common law without really looking at what the

statute said, that is, until June 16, 2004 when the Michigan Supreme Court heard the case of

People v. Lively, 680 N.W.2d 870 (Mich. 2004). Lively finally brought the actual language to

the attention of the court, and in rendering its decision, the Michigan Supreme Court overruled

1 http//www.yale.edu/lawweb/avalon/blackstone/bk4ch10.htm

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thirteen cases when it held that the statutory offense of perjury in fact did not require materiality

as an element of the offense.

One of the earliest perjury cases was People v. Collier, 1 Mich. 137 (1848) in which the

district attorney thoroughly botched the indictment and misused the term material. The opinion

is not entirely lucid because it omits many procedural facts, but this much is clear: A complaint

was made out against Allen Boyce, charging him with the theft of Ben Collier’s horse.2 Collier

testified at Boyce’s trial that he never told one Charles Boyce that the bill of sale was intended as

collateral security for payment of Allen Boyce’s debt.3 The district attorney then brought an

indictment against Collier for two counts of perjury, with each count preceded by the following

statement: “and then and there upon the hearing of the complaint, it became and was material to

ascertain the truth of the matter . . . stated by Benjamin Collier upon his oath.” Id. at 1. This is

the only allegation of materiality that the district attorney included in the indictment, and this the

court found wholly insufficient. Apparently, the district attorney failed to relate the bill of sale to

the horse in question, leaving it entirely to innuendo.4 The court also properly took issue with

the D.A.’s use of the phrase “it became material to ascertain the truth,” as this was a backward

application of the concept of materiality.5 The court cited from the English case Regina v.

Goodfellow, 1 Car. & Marsh. 569, which addressed that exact terminology: “It seems to me quite

absurd to say, it became material to ascertain the truth of what the witness stated; the witness’s

statement itself must be given to ascertain the truth of something which has become material to

the inquiry before the statement has been made.” At any rate, the court found that Colllier’s
2 The opinion does not state whether Collier made out the complaint. I assume he did.
3 In trying to piece together the alleged theft, I can only assume that it was the classic theft by false pretenses:
Collier sold his horse to Boyce, for which Boyce was to pay him later, but Collier never received payment and
subsequently claimed that Boyce had stolen his horse.
4 “Here the nature of the bill of sale, its substance, its effect and bearing upon the case before the court is all
contained in innuendo.” Id.
5 The court does not explain what happened in Boyce’s case. I can only speculate that Boyce – maybe by other
evidence – was found not guilty, and therefore the D.A. thought Collier committed perjury, which is why he said “it
became material to ascertain the truth,” rather than properly stating that Collier’s false testimony was material to
Boyce’s case.

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testimony was in relation to a “collateral matter.”6 Lastly, the district attorney, in his only

correct argument, urged the court that the revised statutes of 1846 had eliminated the element of

materiality. That statute read: If any person, of whom an oath shall be required by law, shall

willfully swear falsely in regard to any matter or thing, respecting which such oath is authorized

or required, he shall be guilty of perjury.” The court disagreed, stating that “the statute does not

make that perjury which is not material to the issue,” and regardless, the rules of pleading were

unchanged by the statute anyway. Collier’s indictment was dismissed.

After Collier, Michigan’s perjury cases more or less followed this same vein of

reasoning. The case of Hoch v. People, 3 Mich. 552, followed in 1855. Hoch echoed Collier:

“It is a rule nowhere controverted that it should appear upon the face of the indictment that the

evidence upon which the perjury is assigned was material,” and Hoch held that the averments in

the indictment must pertain to specific facts rather than a generalized assertion of materiality. Id

at 2. An error in the sufficiency of the information was again charged in Flint v. People, 35

Mich. 491 (1877), and the only thing notable from that opinion is the judge’s observation that

“the old precedents . . . were very prolix . . . designed to enable a criminal court to determine

materiality from the comparison of testimony with the issue . . .In modern times the more correct

rules of pleading have substituted allegations of materiality to the issue.” Id. at 1. After Flint

came Beecher v. Anderson, 8 N.W. 539, an 1881 case with complex factual and procedural

patterns. Of particular note there was the judge’s misquoting of Michigan law. He quoted

Blackstone’s Commentaries’ common-law definition of perjury, rather than the revised 1846

statute briefly discussed in Collier. By 1924, it had become “fundamental that both the oath and

facts sworn to must be material,” People v. Almashy, 201 N.W. 231 (1924), and the last

remaining issue was seemingly resolved in 1982 in the People v. Hoag, 318 N.W.2d 579, which

6 Again, the court does not say why his testimony did not matter, leaving me to question what actually happened
between Collier and Boyce.

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determined that materiality was for the trial court to determine, and not the jury. Several more

cases followed, and then Lively arrived in the supreme court in 2004.

Tiffany Lively’s husband had instituted a divorce proceeding against her, and a default

judgment was entered on his behalf. Lively moved to set the judgment aside, and at a hearing on

that motion, Lively testified that she had never been served with process and did not know of the

pending divorce until after the judgment had been entered. She was charged with one count of

committing perjury in a court proceeding under M.C.L. 750.422 and the case went to trial where

she was found guilty. Relying on United States v. Gaudin, 515 U.S. 506 (1995), the court of

appeals reversed. In Gaudin, the Supreme Court had held that every essential element of an

offense, including materiality if applicable, must be submitted to the jury. Some of the case law

on perjury from the 1980’s in Michigan rested firmly on the notion that the court determined

materiality7, but the appeals court rejected that contention due to emergence of Gaudin.

Therefore, the trial court had erred in not submitting to the jury an instruction on materiality, and

the prosecution appealed. The supreme court granted the application to decide the question of

whether perjury included the element of materiality under the state statute.

After resolving that Gaudin would only be helpful if the court determined that materiality

did exist, the supreme court groused, and maybe properly so, that prior decisions virtually

ignored the actual wording of the statute. The wording of M.C.L. 750.423 was nearly identical

to that quoted in Collier: any person authorized by any statute of this state to take an oath, or any

person of whom an oath shall be required by law, who shall willfully swear falsely, in regard to

any matter or thing, respecting which such oath is authorized or required, shall be guilty of

perjury. (Emphasis original.) Plainly, any matter or thing was not any material matter or thing,

7 See People v. Noble, 152 Mich. App. 319 (1986), People v. Hoag, 113 Mich. App. 789 (1982).

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and since the court was bound to apply the plain language of the statute, the court concluded that

the legislature did not intend materiality as an element of perjury in M.C.L. 750.423.

The judges were split though, with one judge writing separately in concurrence, and two

judges concurring in part and dissenting in part. The dissent agreed that materiality was not an

element for the jury to decide, but could not escape the feeling that the court was granting

prosecutors “unfettered discretion” to charge perjury, no matter how trivial the transgression

under oath. They also pointed out that from 1846 to 1931 the definition of perjury was

essentially the same as that of M.C.L. 750.423 – the same wording that the prosecutor in Collier

had railed against as changing the applicability of materiality in perjury crimes. The dissenters

also could not ignore the great weight of the rulings since 1846 that established materiality as

essential, and even pointed out that Chief Justice Corrigan, the author of the majority opinion,

had herself authored an opinion during her tenure at the Court of Appeals establishing the same.8

Furthermore, the dissenters found ridiculous the majority’s dismissal of stare decisis. The

majority previously had ruled in Robinson v. Detroit, 462 Mich. 439 (2000), that departure from

the doctrine is not warranted if it would result in any “real-world dislocations,” 680 N.W.2d at

882, and faulted the dissent for ignoring “reliance interests.” In reply, the dissent said, quite

rightly, “I note that there are likely no superficial reliance interests to consider when a case

involves a matter of criminal justice. How unlikely it would be for this Court to decide not to

overrule a past case because criminals have been relying on it to further their criminal conduct.”

Id. at 887. However, the Michigan Supreme Court did finally agree with the argument of H.N.

Walker, the district attorney who had unsuccessfully prosecuted Benjamin Collier by arguing

that materiality was not an element of the revised statute.

8 See People v. Kozyra, 219 Mich. App. 422 (1996).

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 PART II

In New York state, a line of cases emerged in the late seventies and early eighties

regarding the prosecutorial phenomenon known as “the perjury trap.” A perjury trap occurs

when a prosecutor convenes a grand jury and places a witness under oath with the sole intent of

eliciting perjurious testimony from that witness. Two of the earliest cases to raise the concept of

a perjury trap were federal – United States v. Remington, 208 F.2d 567 (2nd Cir. 1953) and

Brown v. United States, 245 F.2d 549 (8th Cir. 1957). Despite the outlandishness of the grand

jury tactics employed in Remington, the case is more noteworthy because of Learned Hand’s

dissent where he first postulated the notion that the government, through its strong-arm tactics,

had impermissibly secured a perjury indictment.9 Brown dealt more directly with a prosecutor’s

premeditated attempt to indict for perjury, and that opinion developed the nascent legal rules of

the perjury trap that New York would employ in its seminal case of People v. Tyler, 46 N.Y.2d

251 (1978).

The facts of the Brown case led the court to firmly believe that the grand jury was

convened for no reason other than to secure a perjury indictment.10 It was evident to the court

that the questions put to Brown were unrelated to any investigatory purpose of the grand jury.

The opinion flayed the tactics employed by the United States District Attorney:

We do not, however, subscribe to the proposition that the Constitution of the United
States or the laws enacted thereunder authorize an inquisition into the life and conduct of
9 Bennet L. Gershman, The Perjury Trap, 129 U. Pa. L. Rev. 624
10 Brown, who worked for the IRS, was directed by his supervisor to fly to Omaha for a “special assignment.”
When he arrived, a special agent immediately ushered him in front of a grand jury where he was questioned for two
hours about events that had occurred four years prior in the eastern district of Missouri.

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 a defendant with reference to matters that are not relevant or material. Extracting the
testimony from defendant had no tendency to support any possible action of the grand jury
within its competency. The purpose to get him indicted for perjury and nothing else is
manifest beyond all reasonable doubt.

Brown therefore gave rise to the notion of proper prosecutorial purpose in summoning witnesses

and the need for materiality in questioning in grand jury proceedings11, two concepts that New

York adopted.

On December 20, 1978, the New York Court of Appeals decided three perjury cases, one

of which was the seminal case of People v. Tyler.12 According to the facts, a grand jury had

convened to investigate the relationship between Supreme Court Justice Andrew Tyler and

figures in the gambling world, in particular Raymond Marquez, the reputed head of one of the

largest illegal gambling operations in the city. The grand jury’s effort were geared towards the

discovery of bribery and official corruption, and Tyler’s perjury indictment arose from answers

that he gave in response to questions about a single meeting with Marquez which three police

officers witnessed during an undercover surveillance operation. Under questioning, Tyler

testified incorrectly to the details surrounding this meeting – how long it lasted, where he had

initially met the defendant, that he had left the meeting alone, etc…. In the nineteen months that

the grand jury had convened, the only charges it could muster against Tyler were four counts of

perjury. The court of appeals rejected Tyler’s conviction and laid down the Brown reasoning:

It is not properly a principal aim of the Grand Jury , however, to ‘create’ new crimes
in the course of its proceedings. Thus, where a prosecutor exhibits no palpable
interest in eliciting facts material to a substantive investigation of crime or official
misconduct and substantially tailors his questioning to extract a false answer, a valid
perjury persecution should not lie. Id.

Furthermore, the prosecutor had failed to show that the meeting was at all relevant to that which

the grand jury sought; in other words, he had “evinced minimal interest in establishing the
11 Sarah Sun Beale, et al., GRAND JURY LAW AND PRACTICE, Ch. 11 § 11:11 (2nd ed.)
12 The other two were People v. Schenkman, 46 N.Y.2d 232 (1978) and People v. Pomerantz, 46 N.Y.2d 240
(1978). The court upheld the perjury convictions in both cases.

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materiality of the meeting.” Id. His examination was likened more to a recall quiz than to the

legitimate pursuit of the substance of the conversation that took place between Marquez and

Tyler. This the prosecutor had only glossed over, providing the court with a key clue that his

only true motive was to ensnare Tyler in a lie. If he had truly been interested in the substance of

the conversation, he would have wielded his full powers of examination on that subject, yet he

did not. Moreover, perjury contains a mens rea requirement, and one cannot be charged with

perjury for being mistaken.13 The witness must intentionally falsify testimony under oath. To

that end, the Tyler court tasked the prosecutor with making a reasonable effort at prodding the

witness’s memory with cues to help stimulate his recall. The court said “It is not so much that a

witness deserves an opportunity to refresh his recollection; it is that the foundation established by

stimulation of recollection bears on resolution of the ultimate issue: whether defendant is

deliberately falsifying.” Id. This the prosecutor had failed to do, even though it was well within

his means to do so because he had independent proof with which to confront the witness.

Therefore, the rule of Tyler is that “the examiner has an inescapable burden to . . . demonstrate

that the witness is testifying falsely intentionally, rather than mistakenly, whether it is with

respect to surrounding details or to substantive matters relevant to an authorized investigation.”

How heavy this prosecutorial burden will be turns on how memorable the event in question.14

Significant details of memorable events require less probing since a supposed inability to recall a

memorable event evinces more intent to lie than a genuine inability to recall insignificant details

about a forgettable event, that is, there is a wide gulf between intentional lying and lapses of

memory.

Despite the wide latitude afforded grand juries and prosecutors in their fact-finding

endeavors, the perjury trap defense does provide at least some limitation on the boundaries of

13 See N.Y. Penal Law § 210.00 (5)

14 Richard A. Greenberg, NEW YORK PRACTICE SERIES, Criminal Law Ch. 24 § 24:13

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investigatory power. In New York, it is limited to those proceedings where the defendant can

show, beyond a preponderance of the evidence, that the prosecutor’s sole intent was to secure a

perjury indictment.15 This does afford witnesses some protection from a malicious prosecutor,

but maybe not enough. At any rate, the witness is at least safe from the pillory.

15 See People v. Kirsh, 176 A.D.2d 652 N.Y. 1991), People v. Davis 53 N.Y.2d 164 (1981).