Giving wildly different evidence at appeal court than at original court hearing

Kevin3 · 10-05-2017 11:25pm #1

Just a scenario that crossed my mind, what if at a District Court hearing a person gives evidence on behalf of the prosecution. A part of the evidence is robustly challenged by the defense and a direction is sought to dismiss based on some legal argument about the evidence given. The defense is unsuccessful but lodges an appeal to the Circuit Court.

The witness, now aware of the avenue the defense will go down, changes their evidence to close down the apparent issue.

Can the defence raise the inconsistency between the evidence given at the lower court and the appeal court?

hullaballoo · 11-05-2017 12:11am

Yes of course. The testimony given in court is about as "on the record" as it gets so yes, it can be dealt with in the same way as any prior inconsistent statement with the added benefit that the witness has totally undermined their own credibility by lying at one or other of the hearings, which is also perjury and leaves the stupid idiot open to criminal prosecution.

I know I'm posting like I'm stating the obvious but I have seen this scenario play out in appeals (albeit not criminal) numerous times.

Usually, the representatives of the prosecution and the accused will be the same people above as below too. It can be very entertaining.

Victor · 11-05-2017 12:25am

Of course, there are many defences available to any given accusation and at an initial trial (or indeed at the appeal), the parties (or other witness) and their advisors might not want to go down a particular road, e.g. because it is embarrassing. Facts discovered at trial might influence the approach at the appeal and emphasis may change.

But giving conflicting evidence, especially as one of the parties, destroys credibility and the judge is likely to not believe anything you are saying.

seagull · 11-05-2017 1:36pm

hullaballoo wrote: »

Yes of course. The testimony given in court is about as "on the record" as it gets so yes, it can be dealt with in the same way as any prior inconsistent statement with the added benefit that the witness has totally undermined their own credibility by lying at one or other of the hearings, which is also perjury and leaves the stupid idiot open to criminal prosecution.

I know I'm posting like I'm stating the obvious but I have seen this scenario play out in appeals (albeit not criminal) numerous times.

Have you ever seen anyone charged with perjury in these cases. It doesn't seem to be used all that much. Just how blatant and extreme do the lies have to be before the witness is charged?

I can be very entertaining.

Do you get bonus points for making the judge laugh?

hullaballoo · 11-05-2017 2:12pm

seagull wrote: »

Have you ever seen anyone charged with perjury in these cases. It doesn't seem to be used all that much. Just how blatant and extreme do the lies have to be before the witness is charged?

It happens but it is not a decision that is easily made and there are obviously degrees of lying, from feigning forgetfulness to outright fraud.

It is also quite expensive to prosecute, so it would need to be particularly egregious. If it was in the criminal sphere, I would imagine a person caught out lying for the prosecution would more than likely find themselves being charged as it is deemed to be exceptionally serious where innocence is at stake.

In fact, more generally, there is an exception to almost all exclusionary rules of evidence that evidence that is exculpatory is admissible where innocence is at stake.

Do you get bonus points for making the judge laugh?

Thanks for that. I wouldn't know because I am excruciatingly dull.

GM228 · 11-05-2017 2:43pm

seagull wrote: »

Have you ever seen anyone charged with perjury in these cases. It doesn't seem to be used all that much. Just how blatant and extreme do the lies have to be before the witness is charged?

Do you get bonus points for making the judge laugh?

Here's a recent case of Ennis DC Judge Durcan requesting the prosecuting Garda to bring the matter to the DPP over the accused lieing about receiving a speeding offence FCPN.

https://www.irishtimes.com/news/crime-and-law/courts/district-court/nothing-as-appalling-as-a-liar-driver-committed-perjury-judge-1.2928295?mode=amp

Generally though that's the end of it as perjury is very difficult to prove as it's a crime of intent and requires under common law at least two witnesses to corroborate the falsehood of the testimony made on oath or another witness with additional substantial corroborative evidence.

Such cases are rare and I believe cases of subornation of perjury are even rarer again.

hullaballoo · 11-05-2017 3:53pm

I've certainly never come across any colleague brought up for suborning perjury. I know it comes up in American "law" shows a lot but how often does it really occur?

GM228 · 11-05-2017 4:09pm

hullaballoo wrote: »

I've certainly never come across any colleague brought up for suborning perjury. I know it comes up in American "law" shows a lot but how often does it really occur?

Possibly never in recent times, but I believe a handful of cases from the 18th, 19th and early 20th centuries.

hullaballoo · 11-05-2017 4:15pm

Always good to know it was also rare 300 years ago.

Johnboy1951 · 14-05-2017 12:26pm

GM228 wrote: »

Here's a recent case of Ennis DC Judge Durcan requesting the prosecuting Garda to bring the matter to the DPP over the accused lieing about receiving a speeding offence FCPN.

https://www.irishtimes.com/news/crime-and-law/courts/district-court/nothing-as-appalling-as-a-liar-driver-committed-perjury-judge-1.2928295?mode=amp

Generally though that's the end of it as perjury is very difficult to prove as it's a crime of intent and requires under common law at least two witnesses to corroborate the falsehood of the testimony made on oath or another witness with additional substantial corroborative evidence.

Such cases are rare and I believe cases of subornation of perjury are even rarer again.

That makes me wonder what if anything can be done by a witness who is not believed by the judge (although telling the truth) and the judge essentially accuses him in open court of committing perjury?

I can safely say that were I in such a position I would be hopping mad and even likely to let the judge know in no uncertain terms.

Peregrinus · 15-05-2017 2:35am

Johnboy1951 wrote: »

That makes me wonder what if anything can be done by a witness who is not believed by the judge (although telling the truth) and the judge essentially accuses him in open court of committing perjury?

I can safely say that were I in such a position I would be hopping mad and even likely to let the judge know in no uncertain terms.

It depends on what you me by "the judge essentially accuses him".

If there's a conflict of evidence and the judge says "I prefer the evidence of witness A", he is not accusing (or even "essentially accusing") witness B of perjury.

If the judge says "I was not persuaded by . . ." or "I do not accept . . ." or some such language, he is not accusing anybody of perjury.

In fact, unless the judge uses the word "perjury" or words like "lying" or "fraud" or "dishonest", I don't think there's any implication or accusation of perjury.

Johnboy1951 · 15-05-2017 8:20am

Peregrinus wrote: »

It depends on what you me by "the judge essentially accuses him".

If there's a conflict of evidence and the judge says "I prefer the evidence of witness A", he is not accusing (or even "essentially accusing") witness B of perjury.

If the judge says "I was not persuaded by . . ." or "I do not accept . . ." or some such language, he is not accusing anybody of perjury.

In fact, unless the judge uses the word "perjury" or words like "lying" or "fraud" or "dishonest", I don't think there's any implication or accusation of perjury.

Yes ........ and what I wondered about was as a consequence of that ..... something like linked to above

“I am appalled that someone who is an educated person, who has every opportunity in life and is on the road to becoming an accountant, came in here and told a pack of lies and perjured himself.”

So if the judges opinion is wrong, what redress does a person have?

Claw Hammer · 15-05-2017 8:52am

Johnboy1951 wrote: »

Yes ........ and what I wondered about was as a consequence of that ..... something like linked to above

So if the judges opinion is wrong, what redress does a person have?

An appeal, if one is available. Otherwise tough.

Peregrinus · 15-05-2017 8:54am

Well, if he was the defendant and he has been convicted, he can appeal the conviction.

If he was a witness in the case but not a party, I don't see that he has any redress.

From googling, the quote come from a case in which a defendant denied ever having received penalty notices in respect of a speeding offence and a motor tax offence. When it was pointed out that he had in fact paid the motor tax after the notice for the motor tax offence was sent and he was asked if he wished to reconsider his evidence, he conceded that he had been mistaken in his evidence about the tax notice.

He was the defendant and he was convicted, so he could have appealed. I don't know whether he did or not.

Johnboy1951 · 15-05-2017 10:03am

Claw Hammer wrote: »

An appeal, if one is available. Otherwise tough.

An appeal of what?

The witness's good name has been sullied by being called a liar in open court.
It would most likely be widely reported.
If the witness was a businessman/woman it could have serious affects personally and on their business.

Is it a matter of suck it up (and remember to refuse to give evidence ever again) or is there some course of redress available?

Johnboy1951 · 15-05-2017 10:08am

Peregrinus wrote: »

Well, if he was the defendant and he has been convicted, he can appeal the conviction.

If he was a witness in the case but not a party, I don't see that he has any redress.

Thank you, that addresses my question directly.

From googling, the quote come from a case in which a defendant denied ever having received penalty notices in respect of a speeding offence and a motor tax offence. When it was pointed out that he had in fact paid the motor tax after the notice for the motor tax offence was sent and he was asked if he wished to reconsider his evidence, he conceded that he had been mistaken in his evidence about the tax notice.

He was the defendant and he was convicted, so he could have appealed. I don't know whether he did or not.

yes, the link to that case is in an earlier post.
The quote was taken as an example and nothing else.

GM228 · 15-05-2017 10:32am

Johnboy1951 wrote: »

So if the judges opinion is wrong, what redress does a person have?

Johnboy1951 wrote: »

An appeal of what?

The witness's good name has been sullied by being called a liar in open court.
It would most likely be widely reported.
If the witness was a businessman/woman it could have serious affects personally and on their business.

Is it a matter of suck it up (and remember to refuse to give evidence ever again) or is there some course of redress available?

If you are hinting at the likes of defamation - to note is that judges are afforded judicial immunity from such, it is an absolute privilege and as such malice for example would be irrelevant.

So if someone is accused of perjury by a judge then no they have no redress on that point, other than as already pointed out to appeal any guilty verdict, but that would be an appeal of the guilty verdict rather than redress for any potentially false statement.

The chances of being given an opportunity to appeal are extremely slim in any case as going forward to trial on charges of perjury are very rare anyway. Usually they go no further than a judge requesting it be brought to the attention of the DPP.

Johnboy1951 · 15-05-2017 11:00am

GM228 wrote: »

If you are hinting at the likes of defamation - to note is that judges are afforded judicial immunity from such, it is an absolute privilege and as such malice for example would be irrelevant.

So if someone is accused of perjury by a judge then no they have no redress on that point, other than as already pointed out to appeal any guilty verdict, but that would be an appeal of the guilty verdict rather than redress for any potentially false statement.

The chances of being given an opportunity to appeal are extremely slim in any case as going forward to trial on charges of perjury are very rare anyway. Usually they go no further than a judge requesting it be brought to the attention of the DPP.

If the judges remarks were aimed at a witness then there is nothing to appeal.
There is no way such a witness could 'clear their name' either.

Thanks.

GM228 · 15-05-2017 2:32pm

Johnboy1951 wrote: »

If the judges remarks were aimed at a witness then there is nothing to appeal.
There is no way such a witness could 'clear their name' either.

Thanks.

A successful appeal to a guilty verdict does not necessarily mean "clear their name" for the accused either in relation to perjury (unless the conviction they are appealing is the charge of perjury itself). A conviction can be quashed for any number of reasons which may be inconsequential to any suggestion of perjury.

Don't forget they could still be found not guilty of whatever the original charge is, yet still be accused of perjury, and unless actually charged with perjury they also just like the witness who is accused have no way to "clear their name" in that regard.

GM228 · 15-05-2017 4:21pm

And then you have those who give "false and misleading" evidence in a personal injury case and still get an award of €18,000 for damages.

http://m.independent.ie/irish-news/courts/singer-who-gave-false-and-misleading-evidence-awarded-18k-over-traffic-incident-35716504.html

Judge Groarke said Mr McCormack had given false and misleading evidence and had sought to mislead the medical profession almost at every turn but felt it would be unreasonable and harsh on his part if in the circumstances he were to dismiss his case.

Admittedly it isn't clear if false and misleading evidence was given under oath or just to doctors, but still €18,000?

Johnboy1951 · 15-05-2017 4:33pm

GM228 wrote: »

A successful appeal to a guilty verdict does not necessarily mean "clear their name" for the accused either in relation to perjury (unless the conviction they are appealing is the charge of perjury itself). A conviction can be quashed for any number of reasons which may be inconsequential to any suggestion of perjury.

Don't forget they could still be found not guilty of whatever the original charge is, yet still be accused of perjury, and unless actually charged with perjury they also just like the witness who is accused have no way to "clear their name" in that regard.

Yes I understand the same applies to an accused (on a different charge) as well as a witness - anyone who might give evidence in fact.

It does seem 'unfair' on whoever is giving evidence and might attract the ire of a judge.

hullaballoo · 15-05-2017 4:51pm

I think it might be of value to go and see a few cases and how the courts operate.

Judges are generally very measured and aren't about to start flinging accusations of criminal wrongdoing at parties or witnesses to any given case, notwithstanding the position in relation to absolute privilege.

In fact, it's exceptionally rare for a judge to make any kind of comment about a witness for obvious reasons. They usually just thank the witness for their evidence, even where it's clear to everyone present that the evidence was inconsistent or untruthful.

As above, only where it is particularly egregious will anything be said or done about it.

People do not have their good names unjustly sullied from the bench with no recourse, so there is no real unfairness.

Johnboy1951 · 15-05-2017 4:58pm

hullaballoo wrote: »

I think it might be of value to go and see a few cases and how the courts operate.

Judges are generally very measured and aren't about to start flinging accusations of criminal wrongdoing at parties or witnesses to any given case, notwithstanding the position in relation to absolute privilege.

In fact, it's exceptionally rare for a judge to make any kind of comment about a witness for obvious reasons. They usually just thank the witness for their evidence, even where it's clear to everyone present that the evidence was inconsistent or untruthful.

As above, only where it is particularly egregious will anything be said or done about it.

People do not have their good names unjustly sullied from the bench with no recourse, so there is no real unfairness.

On that we disagree.
The system is unfair if in the event of something being said by the judge, there is no means of redress for the person who is the subject of the judge's ire.
There was no implication in what has been written that this happens regularly or at all.
The fact that it could happen is sufficient to make the system unfair.

GM228 · 15-05-2017 4:59pm

hullaballoo wrote: »

Judges are generally very measured and aren't about to start flinging accusations of criminal wrongdoing at parties or witnesses to any given case, notwithstanding the position in relation to absolute privilege.

In fact, it's exceptionally rare for a judge to make any kind of comment about a witness for obvious reasons. They usually just thank the witness for their evidence, even where it's clear to everyone present that the evidence was inconsistent or untruthful.

As above, only where it is particularly egregious will anything be said or done about it.

+1

Another reason why such cases are rare is because the allegations are rarely made in the first place.

GM228 · 15-05-2017 5:07pm

Johnboy1951 wrote: »

On that we disagree.
The system is unfair if in the event of something being said by the judge, there is no means of redress for the person who is the subject of the judge's ire.
There was no implication in what has been written that this happens regularly or at all.
The fact that it could happen is sufficient to make the system unfair.

As Hullaballoo pointed out it's rare that a judge will state such, when they do there's pretty good obvious reason for such.

At the end of day you are still afforded the presumption of innocence until proven guilty in a court of law and as already outlined that is very difficult to do, a judges opinion may carry a higher weight but any prosecution still has to be prosecuted to the same standard as any other criminal prosecution, beyond a reasonable doubt and all that.

hullaballoo · 15-05-2017 5:19pm

Johnboy1951 wrote: »

On that we disagree.
The system is unfair if in the event of something being said by the judge, there is no means of redress for the person who is the subject of the judge's ire.
There was no implication in what has been written that this happens regularly or at all.
The fact that it could happen is sufficient to make the system unfair.

I don't think we disagree. I said that it doesn't happen therefore there is no real (or actual) unfairness.

Any argument around whether there is intrinsic systemic unfairness is moot because it does not happen. No one's rights can be implicated by something that doesn't happen.

If it did happen, that might be unfair all right, but it doesn't happen so it isn't.

Bit of a merry-go-round but I'm sure it's logically sound. :pac:

Victor · 15-05-2017 10:42pm

hullaballoo wrote: »

In fact, it's exceptionally rare for a judge to make any kind of comment about a witness for obvious reasons. They usually just thank the witness for their evidence, even where it's clear to everyone present that the evidence was inconsistent or untruthful.

How often will a judge (as opposed to the parties) ask a witness for clarity?

hullaballoo · 16-05-2017 12:49am

Victor wrote: »

How often will a judge (as opposed to the parties) ask a witness for clarity?

It depends on the judge but tbh, if the judge is interrupting, the representatives are not doing their job in general. Some judges like to take over the cross-examination of witnesses but most competent barristers won't let them as it is crucial to maintain control over your witness.

If there is a point that the judge feels needs restatement, s/he will ask.

Peregrinus · 16-05-2017 2:22am

GM228 wrote: »

If you are hinting at the likes of defamation - to note is that judges are afforded judicial immunity from such, it is an absolute privilege and as such malice for example would be irrelevant.

Worth pointing out that the same applies to everyone in the court proceedings - not just the judge but the parties, the witnesses - everyone.

There's obviously potential for abuse or unfairness here, but this has to be weighed against the public interest in having a judicial process in which people aren't silenced by fear of adverse legal consequences for saying what they know or believe.

Johnboy1951 · 16-05-2017 10:33am

Peregrinus wrote: »

Worth pointing out that the same applies to everyone in the court proceedings - not just the judge but the parties, the witnesses - everyone.

There's obviously potential for abuse or unfairness here, but this has to be weighed against the public interest in having a judicial process in which people aren't silenced by fear of adverse legal consequences for saying what they know or believe.

The difference to me is that others in the court, such as prosecuting and defence legal teams are in an adversarial situation, where each has the opportunity to question and disprove and otherwise challenge statements by the other side. They equally have the opportunity to question the witness statements.

The same opportunity is not afforded to a witness in the scenario (however unlikely) that I outlined.

The judge has a special position and if s/he (ab)uses that, as in this hypothetical case, there is no opportunity for the witness to defend, or have defended, his 'good name' in that court or later.

I believe there should be some public means for such a witness to challenge a judge should this ever happen. Just because it is unlikely to happen is hardly a reason to not have a system in place to deal with it.

GM228 · 16-05-2017 11:57am

Johnboy1951 wrote: »

The difference to me is that others in the court, such as prosecuting and defence legal teams are in an adversarial situation, where each has the opportunity to question and disprove and otherwise challenge statements by the other side. They equally have the opportunity to question the witness statements.

The same opportunity is not afforded to a witness in the scenario (however unlikely) that I outlined.

The judge has a special position and if s/he (ab)uses that, as in this hypothetical case, there is no opportunity for the witness to defend, or have defended, his 'good name' in that court or later.

I believe there should be some public means for such a witness to challenge a judge should this ever happen. Just because it is unlikely to happen is hardly a reason to not have a system in place to deal with it.

The privilege is well accepted in many jurisdictions accross the world to be in the best interests for the effective administration of justice and in place for 100s of years. But if a witness feels hard done by he too could make wild accusations* of the judge and also have the same immunity - it works both ways.

*I'm not advocating a witness should actually make accusations, just making the point that the immunity isn't one sided.

Giving wildly different evidence at appeal court than at original court hearing

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