What Perjury Means Legally
When we talk about perjury, we should be clear that this is a legal term. It can be used informally to express a belief that someone has lied or been dishonest in civil court, but from a perspective of legal action, it is a specific action with specific standards to obtain a charge.
As defined by 18 U.S. Code 1623 – Perjury generally:
(a) In General.-Whoever, under oath or affirmation, in any proceeding before or ancillary to any court or grand jury of the United States, knowingly makes any false material declaration or Federal Rule of Civil Procedure, or commits perjury by falsely subscribing as permitted by section 1621 of this title, shall be fined under this title or imprisoned not more than five years, or both.
(b) Affirmations Threatening Penalty of Perjury.-For the purposes of subsection (a) of this section, the term "any proceeding before or ancillary to any court or grand jury of the United States" shall include any proceeding before any United States judge or magistrate and any proceeding before any court established under an Act of Congress providing for the administration of the District of Columbia.
(c) Subscribing Form of Written Statement . -For the purposes of subsection (a) of this section, the term "subscribing as permitted by section 1621" shall include the subscribing of a form of written declaration the form of which is prescribed by statute, or adopted by the Supreme Court of the United States, under which the declarant is subject to the same penalties as for perjury if the declarant did not believe the facts stated therein to be true.
So, legally, you must be under oath and lying in order to be charged with perjury. Another part of the definition that should be noted is that the declaration, statement, or testimony must be material to the proceedings. That is, if you just give a small piece of false information, but the case would not have turned out differently without it, then that is not perjury.
There are a few common actions that can be considered perjury:
Witnessing in a deposition that you saw the victim in a certain condition, but in court stating they were of sound mind. Witnessing in a deposition that you visited a location or person, but in court stating you did not. Saying that an action was done in front of you, even though you were not there when it was done.
Legal Implications of Perjury
Criminal sanctions for perjury are rare in civil cases because, for all the hype around the consequences of lying, most people don’t end up spending time in jail for telling a fib during trial. In order for prosecutors to bring criminal charges against someone for perjury, they must establish all five elements of the offense beyond a reasonable doubt.
Because the penalty for proven perjury is generally two years in state prison and a fine of at least $4,000, to say that prosecutors are selective regarding the cases they pursue would be an understatement. This is especially true in connection with civil courts and proceedings.
In the vast majority of cases, those found to have lied during a California civil proceeding will be subject to civil repercussions. This may include judicially sanctioned fines and of course the penalties associated with losing a civil trial.
Civil penalties for perjury are typically monetary. Those who lie during a California civil proceeding may be ordered to pay the court’s "reasonable expenses" caused by the testimony. This includes things like:
In addition to the aforementioned civil penalties, perjury can also result in a contempt of court order. This can result in a variety of civil sanctions including:
It’s worth pointing out that there is a pretty good chance you’ll pay more in court costs and attorney’s fees on account of a contempt of court order than the contempt order itself.
The Difference Between Perjury and Civil Lawsuits
While a first inclination could be to try and sue someone who has committed perjury in civil court, this is not typically an option. A civil lawsuit is a civil matter, though perjury is almost always handled like a criminal matter. In other words, if you have caught someone committing perjury in order to gain a certain slip or profit, you must call on the authorities to press charges. This makes it clear that perjury is serious enough that it generally requires criminal prosecution.
Perjury’s Application in the Civil Realm
Just as perjury is a criminal offense, it can also have significant repercussions in civil cases. In essence, all litigation relies heavily on the veracity of certain parties; truth and honesty are the cornerstones of any lawsuit. Perjured testimony can completely undermine the civil process, and therefore, it is important to address how exactly perjury can affect a civil case and what remedies are available for those adversely affected by perjurious statements.
Perjury is defined as an individual’s willful violation of the oath he or she took to tell the truth before giving a statement or providing testimony. Unlike the criminal procedure, allegations of perjury in civil cases arise with claims that a witness has deliberately given a false statement under oath. Therefore, if a defendant presents a false statement in a civil case, the opposing party may be able to file a claim of perjury against him or her. But the question of whether an opposing party can successfully claim that perjured evidence affected the outcome of a civil case is a contentious one. As such, courts continue to be presented with thorny questions regarding liability and remedies associated with perjury.
For example, even when the defendant in a civil case provides false statements under oath, victims cannot simply file a perjury claim against him or her. In one instance, a defendant in a negligence case refused to provide the true source of his injuries; by doing so, he committed perjury during a deposition. Nevertheless, because the plaintiff in this case had already uncovered evidence of negligence (which meant that the plaintiff’s damages were not based on the testimony that the defendant provided), the court found that the plaintiff could not bring forth the perjury claim that he had originally envisioned. In fact, the plaintiff’s counsel was later accused of having maliciously raised the perjury claim and therefore, almost had to face sanctions by the court.
In another case of fraud lawsuit, the court dismissed an opposing party’s claim of perjury by the defendant even though the defendant admitted to committing perjury. Here, the plaintiff attempted to challenge the defendant’s liability by arguing that she caused the plaintiff’s harm by presenting a document that contained false testimony. The court did not agree that the plaintiff’s subsequent damages award was affected by the defendant’s actions, and therefore, declined to reverse or grant a new trial on the damage award.
In California, the appropriate vehicle through which to allege perjury is a civil action for damages (found in Code of Civil Procedure Section 47). However, California courts have held that perjury is not a form of legal malpractice.
Can You Sue Someone for Damages Caused by Perjury?
Largely, yes. If you have been damaged by perjury then that damage must be proven, just like other forms of civil liability. But the options often depend on the level of statement that was made. A lower level of statement is "fraud," which may be civilly remedied. For example, if someone submitted a bill to an insurance company that had a false date on it and by virtue of that date the company did not pay that person , that’s insurance fraud or false representation. That’s a civil matter and can be prosecuted in civil court.
However, someone fabricating evidence in a criminal case, for example, is not going to cause civil damages to the other person unless the other person has been incarcerated in jail by virtue of that perjury. If someone lied under oath and was responsible for imprisoning someone, that person may have a civil action against the individual who committed the perjury, because the damages would be real. They are incarcerated.
Recent Examples and Precedence
In the world of legal proceedings, perjury is often a double-edged sword. Those considering a civil lawsuit must understand that even if they are successful in commencing an action and in securing a judgment, it does not guarantee its enforceability. A failure to enforce a judgment results in deflated expectations from the ultimate court outcome. The world of pre-judgment enforcement is a critical step in making an action more than just a paper judgment. Unfortunately, some individuals will go to extraordinary lengths to thwart their obligations under a judgment, leaving judgement creditors to pursue pre-judgment and post-judgement enforcement.
The Ontario Court of Appeal has recognized that "perjury is generally an instance of misconduct in the administration of justice sufficient to vitiate a trial" (Johnson v. Johnson, 1984 CanLII 31). Statutory jurisdiction does exist for criminal charges to be made for perjury committed under oath during a civil proceeding (see Subsection 131(1) Criminal Code).
Civil claims have been launched for the tort of perjury. These civil matters have largely been launched by third parties i.e. where the witness is not a party to the proceeding, but has placed the plaintiff’s litigation at risk by lying under oath. In Highwood Congregation v. Wall (2015) CarswellAlta 752 (Alberta Court of Appeal), a perjury award of costs was made against a non-party for her testimony that was believed to be false. In La v. Nguyen (2014) CarswellBC 1493 (British Columbia Supreme Court), La commenced her civil proceeding against Nguyen. Upon discovering that he had given a false affidavit on his financial disclosure to the court, La brought a motion for summary trial, which was granted. She then proceeded to cross-examine Nguyen on the affidavit and moved in a new action for malicious prosecution that was heard as part of the same hearing of the original action. Damages were awarded at the same hearing and Nguyen appealed. The very existence of the appeal was reflective of his gesture to conceal his assets, and his testimony was found to be false. The judge in the original action awarded $224,000 in cost damages against Nguyen, and $76,000 in cost damages in the malicious prosecution matter. The appeal court, however, did not agree that the costs were appropriate. The court stated that "it is difficult to see how Ms. La was materially harmed by Nguyen’s false evidence."
What is particularly interesting about these two awards of costs against a witness is that the first (Wall) was a clear cut case of perjury whereas the second (La) was contested. The courts can still penalize parties to a proceeding for questionable conduct whether under oath, or not.
Perjury is classified as a form of civil fraud and the tort recognizes that a fraudulent misrepresentation may result in economic loss. If the intent is to mislead the presiding court and undermine the administration of justice, there has been a fraud perpetrated on the court. In Tench v. Steinberg (1988) O.J. No. 948 (Ontario Small Claims Court Quigley), a debt collector for a loss prevention service of a department store took possession of products from an alleged shoplifter without any legal authority. The goods were never returned and the collector was sued for conversion (which involves the wrongful interference with the enjoyment of goods). The goods taken exceeded $30,000. The defence was that the plaintiff purchased the items, and the collector was never told otherwise. Justice Quigley stated that "I have no reason to doubt the plaintiff, and on the contrary have every reason to accept the truth of her evidence." The collector was found liable for 100% of the damages suffered, and was only in his role for a few years.
When a party to a civil proceeding testifies in good faith (e.g. not under oath), but has no recollection of the incident, he is entitled to that fact. In Park vs. Harnham (2017), ONSC 7992, the trial judge found as facts that a witness’s actions were "problematic". Notwithstanding this conclusion, the actions of the witness were not the basis upon which the court felt comfortable impugning the observation of the trial judge. The trial proceedings involved personal injury arising out of a slip and fall at a Tim Horton’s outlet.
The key takeaway is that perjury in a court proceeding, even in the civil realm, is an unnecessary tactic. Even where a witness is a non-party to the action the prospects of being found at fault is high.
Legal Guidance for Pursuing Perjury in Court
If you suspect that perjury has been committed in your civil case, it’s essential to discuss this issue with your attorney. This applies regardless of whether the perjury would affect you or not. It’s an area where evidence is critical and should be preserved properly.
One example of the need for preserving evidence is when a witness denies making a video or an audio recording . Specifically, if you suspect perjury on this basis, you should copy the recording immediately, even if you think it’s a mistake. If there’s a discrepancy about whether the witness saw such a recording later, you’ll have the tape to refer to if you copy it shortly after the events in question. Otherwise, it could be erased or damaged. Then, if you suspect that recording was faked, you may want to bring in someone who can analyze the recording for you.