Perjury During an Anti-Harassment / Restraining Order Hearing

My question involves criminal law for the state of: MA

The post pertains to he hearing described here:
http://www.expertlaw.com/forums/showthread.php?t=196320

Thanks to everyone who responded there, by the way. I did have my attorney participate and I believe that did help - her knowledge of the format as all the content of our defense pretty much came from me. Be that as it may, we beat the case. Not sure if I could have beat it on my own - but either way, we did beat it, and that is helpful.

Now on to the substance here. The plaintiff there overdid himself in his lying - which, believe me, is not easy given his exquisite record - and made a number of claims that are so ridiculous as to be comical. He did all of that under oath, naturally.

Proving the fact of perjury is likely not that difficult - especially given the fact that what he claimed in court contradicts what he had claimed in the affidavit submitted to initiate the process. So I guess the question is, what are my chances of having him prosecuted for perjury? Does it make sense to push the police or the DA to prosecute him? If so, what is the best way to proceed with that?

You should keep everyhing in the same thread. Nobody wants to bounce form thread to thread to follow your story.
The answer is while you can certainly make a complaint, you can't force the state to prosecute anybody for anything.
It's not going to help your situation in any event.

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Quoting flyingron

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You should keep everyhing in the same thread. Nobody wants to bounce form thread to thread to follow your story.
The answer is while you can certainly make a complaint, you can't force the state to prosecute anybody for anything.
It's not going to help your situation in any event.

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I thought of continuing with it in the same thread - but this is a different topic, to a degree.

And the question here is, to put it differently, what are my chances of having him prosecuted?

As to whether or not that will "help my situation" - I don't imagine having someone get away with this sort of conduct helps anybody in the society, so I can't see how prosecution of this individual can be a bad thing. Legally speaking, I am no longer in a situation that I need to address, by the way - his request for a restraining order has been rejected, I am not facing any other charges that I know of - so I no longer have a situation that needs help to speak of.

On account of general feasibility of such a prosecution unfortunately what keep hearing sounds very much along the same lines as opinions expressed in the discussion below:

https://www.avvo.com/legal-answers/i...iv-691876.html

Which, despicable as it may be, may indeed be the reality of the situation. So if anyone on this forum has relevant practical experience I would definitely like to hear about that.

It's not a different topic to any degree that matters.

Your chances of persuading a prosecutor to take action if they are not otherwise inclined to do so, is probably very small.

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Quoting plushevyitigr

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And the question here is, to put it differently, what are my chances of having him prosecuted?

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In most jurisdictions, just slightly more than zero percent. Perjury charges are rarely pursued by prosecutors and, when they are, they usually flow from cases with some degree of public import. For most cases, the determination by the trial court about which side's testimony is more credible is going to be the end of the story.

What does your lawyer think?

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Quoting Mr. Knowitall

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In most jurisdictions, just slightly more than zero percent. Perjury charges are rarely pursued by prosecutors and, when they are, they usually flow from cases with some degree of public import. For most cases, the determination by the trial court about which side's testimony is more credible is going to be the end of the story.

What does your lawyer think?

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Thanks.

Unfortunately, overall you seem to be right - which I find very worrisome. Not because of anything having to do with me personally but because this is the reality in which genuine psychopaths are encouraged to make use of the court system to further their objectives against whomever they desire.

My lawyer thinks it will likely fail specifically because no damage has resulted from his perjury. Which almost makes me wish I lost, ironically enough,

Part of the problem in perjury cases is proving that the witness lied. Just proving the witness got his/her facts wrong is not good enough. The state has to prove the witness knew that the statement was false at the time the statement was made. It happens quite frequently that people jump to the conclusion that someone lied just because they got the facts wrong or that the other person’s recollections are different from theirs. More often, though, the witness didn’t lie. He or she believed what he or she said was true. If the witness believes it to be true, it’s not perjury not matter how wrong they ended up being about the facts. In many cases proving that the witness actually lied rather than simply making a mistake is very hard to do, especially when the state has to prove it beyond a reasonable doubt.

Another problem is that he false statement must have been material to the case. If the jury sided with you then it may not have believed the witnesses’ testimony and may not have been at all material in the case.

For these reasons, perjury prosecutions are very rare. They are not nearly as easy to win as much of the public seems to think.

Taxing Matters,

Thanks for a great summation of what proving the charge of perjury entails. I suspect a lot of people in the general public do indeed not know what it entails; I for the most part had the same view of it as what you have described.

It clearly may be difficult to prove that someone has lied just based on them stating something false; naturally, people can be confused. Here however we have a case when the same person provides two mutually incompatible descriptions of the same event; you may not know which one of the two descriptions is false (I know that they both are but you don't need to believe me). You do need to acknowledge, however, that given that the two descriptions are mutually incompatible, one of them has to be false, and deliberately so. And given that both were presented under oath, you have perjury in at least one instance. And yes, the event was material - it was an instance of abuse he claimed.

Now I think there is one more factor involved: the reluctance to prosecute liars playing a victim for fear of discouraging real victims from coming forward. Which I find to be idiotic - sort of like saying, let's not prosecute shoplifters for fear that would discourage honest people from shopping.

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Quoting plushevyitigr

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It clearly may be difficult to prove that someone has lied just based on them stating something false; naturally, people can be confused. Here however we have a case when the same person provides two mutually incompatible descriptions of the same event; you may not know which one of the two descriptions is false (I know that they both are but you don't need to believe me). You do need to acknowledge, however, that given that the two descriptions are mutually incompatible, one of them has to be false, and deliberately so. And given that both were presented under oath, you have perjury in at least one instance. And yes, the event was material - it was an instance of abuse he claimed.

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Not necessarily. It will depend on the specifics of what was said. Here are the instructions judges give most juries when considering issues of truthfulness:

Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened. People often forget things or make mistakes in what they remember. Also, two people might see the same event but remember it differently. You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony.

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Quoting L-1

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Not necessarily. It will depend on the specifics of what was said. Here are the instructions judges give most juries when considering issues of truthfulness:

Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened. People often forget things or make mistakes in what they remember. Also, two people might see the same event but remember it differently. You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony.

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The "3 blind men and an elephant" metaphor springs to mind.

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Quoting L-1

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Not necessarily. It will depend on the specifics of what was said. Here are the instructions judges give most juries when considering issues of truthfulness:

Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened. People often forget things or make mistakes in what they remember. Also, two people might see the same event but remember it differently. You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony.

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L-1,

You are absolutely right. Specifics do matter.

Here are two versions of events he had presented.

V1 (presented in the affidavit). I blocked him and his fiance from accessing their washer in the basement when they went there.

V2 (presented in the courtroom). I was hanging out in the basement, him and his fiancee were afraid to go there, they had to call the police and have them extract me from the basement.

In truth, neither version occurred as all that happened was that his fiance and I were in the basement together for maybe 30 seconds and no interaction occurred - but no matter. V1 was presented a week afterwards, V2 three weeks after the date, so neither can be written off as a result of fear-induced stress and confusion.

So I would say few people would not be persuaded that one of the two times he did necessarily lie.

IMO, I would personally go with V1 if I were to design a narrative as V2 makes little sense. It would have me supposedly waiting for them to intimidate or assault them in the basement. But what if it was not their laundry night and I had to wait for a few days. Kind of makes little sense. But that is all details - what's relevant here is that I am not sure how V1 and V2 can be reconciled without one of them classified as a lie.

But what is the material difference between them? In other words, if the statement at trial was true and the first was a lie, so what? If the true statement had been given in the affidavit, it likely would not have changed the outcome of how this went, and vice versa. The prosecutor would have to be convinced that both were lies (and not simply mistakes in recollection), I think, before a prosecutor would touch it and I’m not seeing enough there to make me want to pursue it if I were that prosecutor. You admit being in the basement with the fiancé, so that part of the statement was true.

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Quoting Taxing Matters

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But what is the material difference between them? In other words, if the statement at trial was true and the first was a lie, so what? If the true statement had been given in the affidavit, it likely would not have changed the outcome of how this went, and vice versa. The prosecutor would have to be convinced that both were lies (and not simply mistakes in recollection), I think, before a prosecutor would touch it and I’m not seeing enough there to make me want to pursue it if I were that prosecutor. You admit being in the basement with the fiancé, so that part of the statement was true.

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Predictions and "what if?" games are hard and not an exact science, so you may be right - but I feel that is unlikely. If the true statement were given he would have to admit that:

1) he wasn't in the basement at all;

2) his fiance and I were there at the same time and no interaction occurred.

So, in short, he would have to admit that there was no harassment which is materially different from both V1 and V2 of the story he had relayed.

As to the material difference between V1 and V2 - yes, I'd say they are materially different. V2 is an allegation of passive behaviour that is even not clearly threatening in any way, form or shape. The basement is a communal area - and I could have been present there all I wanted. So V2, even if true, amounts to next to nothing as far as claims of harassment go.

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Quoting plushevyitigr

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As to the material difference between V1 and V2 - yes, I'd say they are materially different. V2 is an allegation of passive behaviour that is even not clearly threatening in any way, form or shape. The basement is a communal area - and I could have been present there all I wanted. So V2, even if true, amounts to next to nothing as far as claims of harassment go.

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V2 is what he said in court, when it really mattered. But you are saying that statement was not material because it couldn't support the charge anyway, and you got acquitted. So there’d be no perjury prosecution over that even if the witness lied. As for V1, the state still has to prove beyond a reasonable doubt that the statement was a lie and not a mistake. I don’t see enough here for the prosecutor to run with. Obviously the actual prosecutor doesn’t either, and there isn’t anything you can do to force the prosecutor to file perjury charges. I realize you are angry at this person for what happened, but you may have just accept that the courts aren’t going to provide you any satisfactory pay back to him for this.

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Quoting Taxing Matters

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V2 is what he said in court, when it really mattered. But you are saying that statement was not material because it couldn't support the charge anyway, and you got acquitted. So there’d be no perjury prosecution over that even if the witness lied. As for V1, the state still has to prove beyond a reasonable doubt that the statement was a lie and not a mistake. I don’t see enough here for the prosecutor to run with. Obviously the actual prosecutor doesn’t either, and there isn’t anything you can do to force the prosecutor to file perjury charges. I realize you are angry at this person for what happened, but you may have just accept that the courts aren’t going to provide you any satisfactory pay back to him for this.

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V1 is what he said in an affidavit which is also sworn. Why would that not really matter?

I am not sure why something should be viewed as immaterial simply because it ended up being an ineffective lie. V2 is exactly that - a lie he told in an attempt to further his objective. It is for the lack of intellect on the plaintiff's part, not for the lack of will to lie on his part that it failed.

Now I realize that the practice seems to be that that is the end of it - which doesn't make it any less pathological. We as a society essentially are sending psychopathic liars like this one a message that while we see who they are we are more or less OK with their behaviour and don't mind them taking another stab at it.

As to my anger - put it this way: I am far less angry at this individual who is just a random asshole out there than I am at the system that fails to reign him in.