Witness swearing oath on a Bible.

Do You Swear To Tell The Truth?

Perjury happens. Talk to any family law attorney, and at some stage all of us will have had a client come up to us after a hearing and ask “How can she/he get up there and just lie like that?” The irate client will ask what the oath to tell the truth actually means, and, more important, what can be done to the liar on the other side?

And in family law cases, normally very little can be done about a party or witness lying in terms of criminal charges for false swearing.

Witness Lying Under Oath

For our purposes, perjury depends upon whether a witness lied in court, i.e. a witness testified falsely. Per C.R.S. 18-8-502(1):

“A person commits perjury in the first degree if in any official proceeding he knowingly makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law.”

And perjury is a class 4 felony. Every person takes an oath to tell the truth when testifying in court or answering questions in a deposition under the threat of perjury – criminal prosecution for lying under oath. Verified pleadings (e.g. a Petition for Dissolution of Marriage), even answering questions for discovery involves swearing to tell the truth.

Perjury Prosecution?

Despite that oath and threat of punishment, people still lie under oath. But those lies almost never get punished, other than ruining their credibility with the judge and everyone involved for that particular hearing.

Part of the reason perjury charges just don’t happen out of family law cases is that the testimony at issue is often “he-said, she-said” with little concrete evidence – and C.R.S. 18-8-506 prohibits a prosecution based upon the uncorroborated testimony of another witness merely claiming that a witness lied.

Additionally, it is possible for two people, each with their own self-interest, and different perceptions, to testify about the same event with a different spin, without actually deliberately lying. Or they remember events differently, or forget events they’d rather not remember, so each of them could be telling the truth in their own minds. In other words, the crime requires more than a mere false statement – note the definition above – the witness “does not believe to be true” the testimony he/she is providing.

In short, it’s rare to catch a witness in a bald-faced, unadulterated, provable lie. Many times judges will find a witness not credible, and while everyone may think they perjured themselves, thinking is not the same thing as having sufficient evidence to prosecute a lying witness for perjury.

Space Crimes! Astronaut Charged with Lying Under Oath (not in Court)

Just last fall, the bitter divorce of NASA astronaut Anne McClain hit the front pages while she was aboard the International Space Station, when her now ex-wife Summer Worden accused her of space crimes – namely identity theft and improperly accessing bank accounts. Worden’s parents sent a letter detailing the issues to the NASA’s Inspector General, and Worden herself filed a complaint with the Federal Trade Commission (FTC).

Astronaut spouse charged with perjury

It’s worth noting that, even before these allegations, this was a particularly nasty divorce case. And these allegations just escalated things until the case was finalized in January of this year.

In a shocking turn of events, Worden has been charged with lying about the allegations according to a statement released by the United State’s Attorney’s Office in the Southern District of Texas. She is charged with making false statements to NASA’s IG office and to the FTC. If convicted she could face five years in prison.

Perjury Prosecutions Coming to Your Divorce Case?

Even when a lie is somewhat provable, a witness is rarely prosecuted for lying under oath. The allegations made by Worden are not all that unusual to hear out of a hotly-contested divorce case. Which is why this prosecution is so surprising. 

This extremely rare prosecution probably has more to do with the fact that the allegations were made against a NASA astronaut while she was in space, and those allegations were made to two separate federal agencies before hitting the NY Times. If a person airs their grievances publicly, when that person is proven to have lied under oath, he/she is more likely to be prosecuted.

Given that perjury charges are so unlikely to happen, lying under oath still has consequences. Judges notice lying – in one case a while back, during his ruling a now-retired judge in El Paso County told one spouse: “When I administered the oath for you to tell the truth today, I was wasting both of our time.” Lies by a party can, and often are, addressed less directly in divorce cases by way of adverse rulings.

The most certain way to address a provable lie is to ensure it is used against the party who lied. Undercutting the person’s credibility, and diminishing any sympathy a judge may have for the party is always a good tactic – and if a party is caught lying on one issue, that party’s credibility is likely shot on every other he-said, she-said issue in the proceeding.

At Graham.Law, we take our professional obligations seriously. Not only will our attorneys’ credibility never be in question, but we will ensure that our clients, and any other witnesses, tell the truth.

ADDENDUM – Prosecution for Lying Alive & Well in Colorado

OK, not exactly a Perry Mason moment in a Colorado family court, but lying to a custody evaluator. In a blog post on June 17, 2020, we reported on a mother in a custody battle who provided allegedly forged emails to the custody evaluator, and was prosecuted for forgery and attempting to influence a public servant. It seems a very tenacious father was able to persuade the police to take the conduct seriously.

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