Found in Penal Code 118 PC, California law defines "perjury" as deliberately giving false information while under oath.
You are subject to prosecution for perjury if you willfully give false information in any of the following circumstances:
- when testifying in court,
- when being deposed,
- in a signed affidavit,
- in a signed declaration,
- in a DL 44 drivers license application at the DMV, or
- in a signed certificate.
Penalty for committing perjury
The judge has discretion, however, to grant probation and impose little or no actual jail time.
Typical defenses to a perjury charge
Common defenses that we have successfully asserted in Penal Code 118 perjury cases include:
- Our client's false statement was merely mistaken, rather than knowingly false
- Our client simply misunderstood the question
- The false statement related to a minor rather than a significant issue
- Our client was not technically under oath
Although California law treats perjury very seriously, very few perjury cases are totally cut and dry. This can be a difficult charge for the prosecutor to prove. Innocent people do get wrongly accused.
We're a criminal defense firm of former police and former prosecutors with decades of experience investigating, prosecuting -- and now defending -- perjury cases. Based on our experience, we've prepared the article below.
If after reading this article, you would like more information, we invite you to contact us at one of our local criminal law offices.
In California law, the legal definition of perjury can be broken down into 4 facts that the prosecutor must prove (otherwise known as "elements of the crime"):
- That you made a deliberate or willful statement,
- knowing that the statement was false,
- that you were under oath to tell the truth at the time you made the statement, and
- that the statement was (or related to) a "material" fact.1
Let's take a closer look at each of these 4 elements...
You made a deliberate or willful statement
If you intentionally make a statement (either verbally or in writing) that is conveyed to another with the intent that it be taken as true, then you satisfy the first element of Penal Code 118 PC.2
This is an important point -- you must actually convey the false statement. Merely saying or writing something intended only for yourself will not amount to perjury.
Having said that, your silence can actually amount to a "statement" it you intend it to be a substitute for your verbal or written expression.3 Consider an example:
Example: As part of the jury selection process, groups of prospective jurors are questioned together. When the judge or attorneys ask questions, jurors typically raise their hands to indicate "yes" answers and leave their hands down to indicate "no" answers. The silence implied if you fail to raise your hand (indicating a negative response to a question) could constitute perjury if the truthful answer to the question is yes.4
This scenario applies to a very specific set of facts (that is, the jury selection process). However, it stands to reason that your silence could invite a California perjury law charge in any situation when your silence qualifies as a deliberate or willful false statement. This leads us into the next element.
Knowing that your statement was false
This element goes to the heart of a California perjury case. If you don't knowingly provide false information, then you have not perjured yourself. "Mistake of fact" as a legal defense will always apply in a perjury case.5
In order to be convicted of perjury under Penal Code 118 PC, you must knowingly make an unequivocally false statement. Literally true but misleading or unresponsive statements do not amount to perjury.6 Similarly, a witness who gives literally true answers may not be convicted of this offense for failing to volunteer more explicit information.7 Take another example:
Example: The judge asks Rick, a prospective juror in a criminal case, if anybody in his immediate family has ever been arrested. Rick tells the judge that his son has been arrested for drug possession. He fails to tell the judge that he, himself, has also been arrested for the same offense.
Although Rick didn't confess his own arrest, his statement that his son has been arrested is true. The way that Rick answers the question is could be considered misleading (it implies that his son was the only one arrested) but it is nonetheless true. Consequently, even though Rick fails to volunteer his own arrest, he escapes liability for perjury based on the literal truth of his statement.
That said, you can, however, subject yourself to a California perjury charge if you make a willful statement while being unaware of its truth.8 If you make a statement knowing that you are unaware of whether it is true -- with the intent that it should be accepted as true -- you could be prosecuted as if you had made a false statement.9
Example: The judge follows up by asking Rick if his son has had any subsequent "run-ins" with the law. Rick's answer is "absolutely not."
In reality, Rick's son lives in another state and the two haven't spoken or communicated in years. While it could be true that Rick's son hasn't suffered any subsequent arrests, Rick knew when he answered that he had no actual knowledge about his son's legal situation.
When Rick testifies that his son "absolutely" hasn't suffered any other arrests (intending that the judge accept his answer as the truth), he commits perjury.
It bears repeating that making a statement knowing that you are unaware of whether it is true -- with the intent that it should be accepted as true -- can land you in just as much legal trouble as if you had falsely testified.
Finally, even though it may prove to be false, an oath of office that contains an unfulfilled promise of future conduct doesn't qualify as perjury.10
You were under oath to tell the truth at the time you made the statement
Offering false testimony in a civil or criminal court proceeding is the most obvious and common way to trigger liability for a California perjury charge. Providing false information during a deposition or in an affidavit, certificate, or declaration will also subject you to prosecution for this offense.
As for the above "legal terms," an affidavit is a written statement verified by oath or affirmation. A certificate is a written testimony to the truth of any fact. And a "declaration" is a written statement certified to be true under penalty of perjury.11
(1) Providing false information during a court proceeding, a deposition, or in these documents,
(2) delivering them to another, with
(3) the intent that your statements will be received as true constitutes perjury.12
Let's look at some examples:
You are filling out a job application at the office where you are seeking employment. At the end of the employment application, there is a place where you sign "under penalty of perjury" that the information that you provide is true.
In response to a question about whether you have ever been terminated from previous employment, you answer "no". However, the truth is that you were fired from your last job because your boss suspected you of embezzling money from the company.
After completing your application, you decide not to apply for the job after all. You can't find a trash can, so you leave the application on a nearby desk. Someone later picks up you application and submits it on your behalf.
Under this scenario, you have not committed perjury. You never delivered the application, nor did you intend for it to be read. But...
If after completing the application, you turn it in, then you do commit perjury under California law. You (1) provided false information in a "declaration" by stating that you hadn't been terminated, and (2) "delivered it" when you turned it in, and (3) intended that your "no" answer be taken as the truth.
It should be noted that the fact that an oath wasn't properly administered, received, or properly written will not necessarily serve as a defense to a perjury charge.13
That your statement was (or related to) a "material" fact
In order to be prosecuted for perjury under California Penal Code 118 PC, the statement must be what the law calls "material."
In general, a "material" fact is one of real importance or of great consequence. With respect to California perjury law, a statement is material if, at the time it was made, it
- was used to affect the outcome of the proceeding in which it was made, or
- had the probability of influencing the outcome of the proceeding for which it was made.14
There is no requirement that the statement actually influence the proceeding.15 Nor is there a requirement that you know that the statement was material.16
Furthermore, a statement that isn't material on its face (but may have some indirect tendency to prove or disprove an issue that is critical to the proceeding) may nonetheless satisfy the "material" requirement. If the statement relates to a material fact, you still face a perjury conviction.17
Let's look at an example:
Dave is charged with stealing a woman's purse on a downtown street. He isn't arrested at the scene, but is later "picked up" by officers in a nearby location based on the victim's description of his appearance.
When the prosecutor asks Dave if he smokes, he replies that he quit smoking and hasn't had a cigarette in years...facts which, by themselves, don't seem particularly significant.
However, the officer who arrests Dave testifies that he found "Lucky strikes" in Dave's pocket and remembers that Dave was "putting out" a cigarette when the officer approached him.
When the police ask the woman what was in her purse when it was stolen, a pack of Lucky strikes was among the items that she listed.
Although Dave's testimony that he didn't smoke wouldn't necessarily seem material to a theft case, it was a lie that related to a material fact...his identity as the thief. In truth, he had been smoking and that he was carrying the same cigarettes taken from the victim. This tended to prove that he was, in fact, the person whom the woman identified.
Consequently, Dave's false testimony about smoking would satisfy the "material" element and could subject him to a separate perjury charge.
In addition, "false testimony that affects the credibility of a witness is material and will support a perjury conviction".18
There are a variety of situations that may trigger a perjury charge. Some examples include:
- Intentionally providing and delivering false information on a driver's license, loan, or immigration application that has a phrase reading something along the lines of "I declare under penalty of perjury that the above information is true and correct"
- Intentionally providing and delivering false information on a tax return, statement, or report that requires an oath, regardless of whether the oath was actually taken19
- Intentionally rendering a false translation of another's testimony if you are a "sworn" interpreter20
- Testifying as to your opinion if you don't honestly believe in the opinion about which you are testifying21
- Knowingly and intentionally making a materially false statement in a police report that you, as a law enforcement officer, file with your agency (which can also be prosecuted under Penal Code 118.1 - police officers filing false reports) 22
California law recognizes another type of perjury -- subornation of perjury under Penal Code 127 PC. If you willfully convince or persuade someone else to commit perjury -- and they do, in fact, commit perjury -- then you have committed a crime along with the actual perjurer.
In order to prove that you committed subornation of perjury, the prosecutor must establish
- that you convinced someone else to testify falsely,
- that perjury was, in fact, committed,
- that the statements of the perjurer were material,
- that the statements were willfully made with the knowledge that they were false, and
- that you knew that the perjurer's statements were false.23
Let's look at an example:
Example: Alan punches his wife Betty. Their neighbor Charlie witnesses this. Betty calls the police. Alan is arrested for Penal Code 273.5 - Corporal Injury on a Spouse or Cohabitant.24
The D.A. subpoenas Charlie to be a witness at trial. But Alan convinces Charlie to lie on the witness stand and testify that "I never saw Alan lay a hand on her."
In this example, Charlie commits perjury, since he falsely testifies about a material fact. Similarly, Alan commits subornation of perjury, because he convinces Charlie to testify in such a manner.
If you are convicted for subornation of perjury, you will be prosecuted and punished as if you were the one who personally committed the perjury.25
Perjury under Penal Code 118 PC is a felony. If convicted, the judge has discretion to sentence you either to:
a. felony probation with up to one year of county jail, OR
b. California State Prison for a term of 2, 3 or 4 years.
Obviously, the judge has a lot of discretion in dolling out punishment for perjury (anywhere from no jail time to up to 4 years). In deciding this, the judge will likely consider the defendant's prior criminal record, if any, and whether the perjury caused someone else harm (such as causing an innocent person to be wrongly convicted of a crime).
Along those lines, if you are convicted of perjury (or of subornation of perjury) that leads to the conviction and execution of another, you will be sentenced for aggravated perjury. Aggravated perjury is punishable by death or life imprisonment without the possibility of parole.26
There are a number of defenses that our California criminal defense lawyers have been successful in asserting in Penal Code 118 cases. Below are some of the most common.
Mistake or misunderstanding
If, at the time you make your statement, you honestly or justifiably believe it to be true, you did not commit perjury...even if the statement turns out to be false statement.27 This is because you wouldn't be "willfully" making a false statement, one of the essential elements of a perjury charge.
Example: You testify on behalf of your friend Steve, who was being prosecuted for burglary that occurred in Long Beach. You testify that you saw Steve standing on the corner of 3rd and Main in Santa Monica on June 21st at 3:00 p.m. -- the same time he was charged with committing the burglary in Long Beach. You state that when you saw him, you honked your horn but there was no indication that he heard you. You are being honest.
Evidence later conclusively shows that Steve did in fact commit the burglary in Long Beach. You must have been mistaken about having seen him in Santa Monica. Nevertheless, you did not perjure yourself. A mistaken belief (even if false) cannot sustain a perjury conviction.
Based on the same principal, if you misunderstood a direction, question, or other instruction that caused you to make the apparently false statement, this would serve as an effective defense.
Example: In one of the affidavits that you are required to fill out as a part of your divorce proceeding, you under-report your income. The form asks for your total earnings and you mistook that to mean your "take home" pay. As a result, the income you report is significantly less than what you truly earned.
Based on these facts, you did not commit perjury since you didn't intentionally provide false information. You simply misunderstood the instructions.
The bottom line is this -- if you didn't intend to make a false statement, you are innocent. Period.
Another person's testimony that conflicts with yours is insufficient in-and-of itself to sustain a perjury conviction.28 In order to prove your guilt, the prosecutor offer additional evidence to prove that your statement was, in fact, false.29
However, if a jury believes, based on your own conflicting testimony, that your statement was false, no further corroboration is necessary.30
Example: John testifies during his DUI trial that he only drank two beers before he drove...a statement that the prosecution alleged was false based on his blood alcohol concentration of 0.15%. He further testifies that he was drinking at a bar by himself and that the bar didn't serve food, only drinks.
On cross-examination, John concedes that his bar bill was $30. The jury concludes that there is no way that John paid $30 for only two beers when he was by himself in a bar that didn't serve food.
Based on his own conflicting testimony, John could be convicted of perjury for testifying that he only had two beers before he drove.
You quickly recanted your statement
While there is no requirement that you be given an opportunity to correct your alleged false statement, promptly doing so may help prove that you didn't intentionally provide false information.31
You weren't the one who committed the crime
While this defense will not apply in a case where you personally testify either in court or in a recorded deposition, it may apply if your alleged false statement is made in writing.
In an age where the California crime of identity theft (Penal Code 530.5) 32 is rampant, it's very possible for someone to get a hold of your name, address and identifying information. The person could then sign your name to credit applications, purchases, traffic citations.
It may appear (based on the documents) that you attested to false information. But in reality, it wasn't you at all
Call us for help...
If you've been accused of committing perjury under Penal Code 118 PC, we urge you to contact us at Shouse Law Group. Let's see what we can do to get the charge reduced or dismissed, and keep a felony off your record.
We have local offices throughout California, including Los Angeles, Lancaster, San Diego, San Bernardino, Riverside, Ventura, Orange County, Long Beach, San Jose, Sacramento, Oakland and the San Francisco Bay Area.
1 Cabe v. Superior Court, (1998) 63 Cal.App.4th 732 ("In order to lawfully hold a person to answer on the charge of perjury under [California Penal Code] section 118, evidence must exist of a "willful statement, under oath, of any material matter which the witness knows to be false.")
2 People v. Griffini, (1998) 65 Cal.App.4th 581 ("...for purposes of defining perjury, the making of a deposition, affidavit or certificate is deemed to be complete ... from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true.'")
3 California Evidence Code section 225 -- Statement ("'Statement' means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.")
4 People v. Meza, (1987) 188 Cal.App.3d 1631 (Held that defendant's silence in response to a question asked collectively of the prospective jurors in a criminal case could constitute perjury under California Penal Code 118 PC.)
5 California Jury Instruction - Criminal 7.24 -- Willfulness and knowledge required ("A statement made under an actual mistake and in a belief that it is true is not perjury even though the statement is false.")
6 See Cabe v. Superior Court, above ("Thus, no perjury charge was permissible under the rule that a witness may not be convicted of perjury for an answer, under oath, that is literally true, even where the answer was not responsive to the question asked and arguably misleading by negative implication.")
7 In re Rosoto, (1974) 10 Cal.3d 939 ("It is thus apparent that when, as here, a witness' answers are literally true he may not be faulted for failing to volunteer more explicit information. Although such testimony may cause a misleading impression due to the failure of counsel to ask more specific questions, the witness' failure to volunteer testimony to avoid the misleading impression does not constitute perjury because the crucial element of falsity is not present in his testimony.")
8 California Jury Instruction - Criminal 7.24 -- Willfulness and knowledge required ("Perjury requires that the statement be made willfully by a person who knows that the statement is being made under [oath] [penalty of perjury] and who...[is aware that [he] [she] is ignorant of the truth or falsity of the statement].")
9 California Penal Code section 125 -- Unqualified statement not known to be true. This section is used in connection with California Penal Code section 118. ("An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false.")
10 California Penal Code section 120 -- Oath of office (An oath of office as relates to the future performance of official duties is not subject to a perjury prosecution.)
11 See People v. Griffini, above ("A 'declaration' is an unsworn written statement certified to be true under penalty of perjury...A 'certificate' is a written testimony to the truth of any fact...An 'affidavit' is a written statement verified by oath or affirmation.")
12 See People v. Griffini, above ("...for purposes of defining perjury, 'the making of a deposition, affidavit or certificate is deemed to be complete ... from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true.'")
13 California Penal Code section 121 -- Oath; irregularity in administration ("It is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner, or that the person accused of perjury did not go before, or was not in the presence of, the officer purporting to administer the oath, if such accused caused or procured such officer to certify that the oath had been taken or administered.")
14 People v. Feinberg, (1997) 51 Cal.App.4th 1566 ("The test for whether a statement is material in a perjury prosecution ([California] Pen. Code, � 118) is whether the statement or testimony might have been used to affect the proceeding in or for which it was made, or whether the statement could probably have influenced the outcome of the proceedings.")
15 People v. Darcy, (1943) 59 Cal.App.2d 342 - overruled on other grounds ("The test in a perjury charge is not that injury actually occurred as a result of the false statements, but that the falsehoods could have influenced or changed the status of the subject of the statement to the benefit of the falsifier or the detriment of others.")
16 California Penal Code 123 -- Materiality and effect on testimony; knowledge of witness ("It is no defense to a prosecution for perjury that the accused did not know the materiality of the false statement made by him; or that it did not, in fact, affect the proceeding in or for which it was made. It is sufficient that it was material, and might have been used to affect such proceeding.")
17 Ex Parte Davis, (1921) 52 Cal.App. 631 ("The matter sworn to need not be directly and immediately material. It is sufficient if it be so connected with the fact directly in issue as to have a legitimate tendency to prove or disprove such fact by giving weight or probability to the testimony of a witness testifying thereto, or otherwise.")
18 People v. Rubio, (2004) 121 Cal.App.4th 927
19 California Penal Code section 129 -- False return required to be under oath ("Every person who, being required by law to make any return, statement, or report, under oath, willfully makes and delivers any such return, statement, or report, purporting to be under oath, knowing the same to be false in any particular, is guilty of perjury, whether such oath was in fact taken or not.
20 People v. Walker, (1924) 69 Cal.App. 475 (States that an interpreter may be prosecuted for California perjury if he/she willfully renders a false translation.)
21 People v. Webb, (1999) 74 Cal.App.4th 688 ("Opinion testimony constitutes perjury, 'if the witness does not honestly hold the opinion to which he or she testifies.'")
22 California Penal Code section 118.1 -- Peace officers; false report ("Every peace officer who files any report with the agency which employs him or her regarding the commission of any crime or any investigation of any crime, if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false, whether or not the statement is certified or otherwise expressly reported as true, is guilty of filing a false report...")
23 People v. Jones, (1967) 254 Cal.App.2d 200 ("The elements of the the crime of subornation of perjury consist of: a corrupt agreement to testify falsely (See People v. Coffey, 161 Cal. 433, 443-446 [119 P. 901, 39 L.R.A. N.S. 704]); proof that perjury has in fact been committed ( People v. Ross, 103 Cal. 425, 428 [37 P. 379]); the statements of the perjurer were material ( People v. Nickell, supra, 22 Cal.App.2d 117); People v. Metzler, 21 Cal.App. 80, 82 [130 P. 1192]); and evidence that such statements were willfully made with knowledge as to the falsity thereof. ( People v. Ross, supra, at p. 427.) Moreover, one who procures another to commit perjury must know that the perjurer's statements are false. ( People v. Carpenter, 136 Cal. 391 [68 P. 1027]; People v. Ross, supra.).")
24 Penal Code 273.5 - Corporal Injury to a Spouse or Cohabitant - is one of the primary California domestic violence laws. It applies when you inflict injury, even slight, on a current or former spouse, cohabitant or the parent of your child.
25 California Penal Code section 127 -- Subornation of perjury; definition; punishment ("Every person who willfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured.")
26 California Penal Code section 128 -- Procuring execution of innocent person; punishment ("Every person who, by willful perjury or subornation of perjury procures the conviction and execution of any innocent person, is punishable by death or life imprisonment without possibility of parole.")
27 California Jury Instruction - Criminal 7.24 -- Willfulness and knowledge required ("A statement made under an actual mistake and in a belief that it is true is not perjury even though the statement is false.")
28 California Jury Instruction - Criminal 7.23 -- Perjury; proof necessary ("...the defendant may not be convicted of perjury where the only proof of the falsity of the statement[s] is the testimony of one witness [other than the defendant] which contradicts defendant's statement[s].")
29 Judicial Council Of California Criminal Jury Instruction 2640 -- Perjury ("You may not find the defendant's statement was false based on the testimony of <insert name of witness> alone. In addition to the testimony of <insert name of witness>, there must be some other evidence that the defendant's statement was false.")
30 See jury instruction 2640, above ("...if you conclude, based on the defendant's own testimony, that the allegedly false statement was in fact false, then additional evidence is not required.")
31 People v. Baranov, (1962) 201 Cal.App.2d 52 ("...a correction by the defendant, or his attempted correction, of testimony before the tribunal where he originally appeared, may be of some value in showing that he was mistaken in giving his former statements, or that he inadvertently omitted significant evidence when first testifying, so to support the conclusion that he did not wilfully intend to testify falsely.")
32 Penal Code 530.5 is the primary statute addressing the California crime of identity theft. In the most general terms, identity theft is the unauthorized use of personal identifying information to obtain credit, goods, services, or medical information in the name of another person.