There’s been a lot of talk recently about the President of the United States not wanting to talk to the Special Counsel because the President would be in a “perjury trap.” A recent article from the Washington Post discusses the President’s dilemma which, in my opinion, gives a very incomplete discussion of what a perjury trap is and how an ordinary citizen can fall into the trap. The link to this article can be found at the bottom of this post.
The opinion writer gives a definition that a “‘perjury trap’ occurs when investigators ask a question knowing that the person being interviewed will respond with a lie. When it happens, it’s usually because the suspect doesn’t realize that the investigators know something critical.”
It is a felony to lie under oath. It’s also a felony to lie to federal investigators even when you’re not under oath. But this definition is incomplete because perjury traps occur not just when an investigator already knows something but also when an investigator does something.
In many a murder investigation (and eventual trial), a witness is interviewed by a detective and gives the detective information. Let’s assume that the detective is satisfied with that information and that information helps their investigation. One can expect that the witness will then be hit with a Grand Jury subpoena.
Why? The detective and the prosecutor want this information under oath for two main reasons. One is that if the witness at a much later trial gives different, contradictory information, the prosecutor can then use the earlier Grand Jury testimony not only to contradict the witness’ new trial testimony, but also to use as evidence of the guilt of the accused.
So if the witness was the sole eyewitness to the murder, and told the Grand Jury that the defendant did it, this Grand Jury transcript can be used to convict the defendant even if the witness recants later and claims he/she never saw the shooting. A defendant can be convicted of murder, or any other crime, if the jurors at trial believe the witness told the truth at the Grand Jury even if that witness refuses to identify the defendant at the later trial.
The second reason the detective and the prosecutor want the testimony under oath is to put the witness in a perjury trap. If the witness told the Grand Jury that the defendant did it, and told the defendant’s jury at the later trial that he didn’t, or anything else that contradicts the witness’ earlier testimony, the prosecutor has two contradictory statements that are both under oath. The prosecutor can then charge the witness with the felony of perjury. It is this threat that the witness faces that is meant to “encourage” the witness to stick to the same story that the witness told the Grand Jury.
Now consider a very different scenario which also happens all the time and is really relevant despite one of the lawyers for the President of the United States recently stating that “truth isn’t truth.” Consider a murder investigation where a witness is interviewed by a detective and gives the detective information where the detective is not satisfied. This information does not help their investigation, or rather, does not help lead to the conclusion they want to reach. Some detectives are completely honest, will document the results of this part of the investigation, and move on. Some detectives will not document this part of the investigation in the hopes that the defense lawyers will not learn the information, and move on.
Some detectives will tell the witness that the defendant is a very bad man and that the detectives need to hear “the truth”. Here, the truth isn’t truth. The “truth” becomes what the investigators want to hear to help make their case stick against their suspect. And these detectives will misinform witnesses to encourage “the truth”. Some will engage in trickery. Some will engage in threats (like saying it would be a shame if DCFS had to investigate the witness’ parenting skills which could lead the witness losing their kids).
Here, the “truth” is what the detective wants to hear, and once the witness is willing to repeat that “truth”, that witness can be expected to be hit with a Grand Jury subpoena to repeat that “truth” under oath. Once stated in front of the Grand Jury, that witness is in the same described perjury trap, where telling the actual truth at trial can be met with a perjury prosecution for failing to tell the “truth” that the detective and prosecutor want to hear.
Not everyone who is served with a Grand Jury subpoena requires a lawyer, but some do. The Law Office of William Wolf, LLC has years of experience representing witnesses who face perjury traps or perjury prosecutions. If you’re hit with a Grand Jury subpoena, call our Law Office right away at 312-888-1124 or email us at email@example.com. We can help.
Link to Washington Post article: