Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

R.C. 2921.11 -- Perjury.
R.C. 2941.11 -- Allegations in perjury indictment.
State v. Marcum, Columbiana App. No. 03 CO 36, 2004-Ohio-3036 -- Defendant told the grand jury no shots were fired at a truck turning donuts in his father's front yard. Subsequently he entered a non-Alford plea to felonious assault, admitting he had fired a shot. This led to a conviction for perjury under a subsequent indictment. (1) His statement to the grand jury was material as it could have resulted in the erroneous indictment of his father. (2) Perjury charge should have been dismissed as preindictment delay prejudiced the defendant by giving the prosecutor an unfair advantage through use of the admissions required as a part of the prior plea bargain.
Nix v. Whiteside (1986), 475 U.S. 157 -- The Sixth Amendment right to counsel is not violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at trial.
State v. Jacobozzi (1983), 6 Ohio St. 3d 86 -- To sustain a conviction under R.C. 2921.11(A) the state must prove beyond a reasonable doubt that the statements made in an official proceeding were false. It fails to do so when circumstantial evidence offered to prove the state's case is consistent with the defendant's account of the same events.
State v. Goodin (1978), 56 Ohio St. 2d 438 -- Paragraph two of the syllabus: "Where no direct evidence is adduced showing that the sworn statement made by one accused of in fact false, and where the only circumstantial evidence indicating any falsity consists of testimony of witnesses that on prior occasions the accused had made, or by his silence had adopted, unsworn statements necessarily inconsistent with his sworn statement, such evidence, as a matter of law, is insufficient to support a conviction for perjury."
State v. Palicki (1994), 99 Ohio App. 3d 143 -- Defendant was indicted for perjury after his testimony at a suppression hearing was contradicted by a videotape of the search obtained from the Highway Patrol. Held that tape did not have to be suppressed because it had not been turned over to the defense as Brady material. Opinion does not address whether disclosure was required to the extent the tape constituted the prior statement of the defendant.
State v. Childress (1990), 66 Ohio App. 3d 491 -- Constitutional (Miranda type) warnings are sometimes required when a witness appears before a grand jury. Witness called before the same grand jury a second time, and charged with perjury on that basis, should have been advised of her privilege to refuse to answer questions which might further incriminate her.
State v. Bell (1994), 97 Ohio App. 3d 576 -- (1) Submission of false affidavits in support of a motion to reduce child support is a sufficient basis for a perjury prosecution. (2) Falsification is a lesser included offense to perjury.
State v. Weis (September 24, 1981), Franklin Co. App. Nos. 80AP-933, 941 (1981 Opinions 2890, 2895-2896) -- In a perjury prosecution based on contradictory statements, an affidavit sworn to before a notary public does not qualify as a statement made in an official proceeding.
State v. Pirman (1994), 94 Ohio App. 3d 203 -- Witness recanted trial testimony leading to motion for a new trial. Prosecutor charged witness with perjury and witness exercised Fifth Amendment privilege at hearing on the motion. Prosecutorial vindictiveness was not raised in the trial court and appeals court declines to find plain error.
Schmidt v. Statistics, Inc. (1978), 62 Ohio App. 2d 48 -- Headnote: "The giving of false testimony in a judicial proceeding, even though the allegation is made that the person giving the testimony knew it to be false, does not give rise, either at common law or by statute, to a civil action for damages resulting from such testimony."

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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.