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Much of what I have read gives the impression that Judges expect the parties in a divorce to lie. But if the lie is persuasive, it prejudices the Court. I do not see pointing this out to a Judge would be helpful. If perjury carries a sanction or charge of a felony, surely the Judge will think it is relevant. As the trier of facts, how can this be ignored, especially if it can be proved?

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  • 16
    What is one example of evidence which establishes that judges expect parties in a divorce to lie?
    – user6726
    Mar 25 at 5:07
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    However true your claim, how is the Question about Law, rather than something to do with administration? Mar 26 at 0:10
  • Is there existing law that makes lying in a court say a felony? Yes, there are a few. If this is common practice in a courtroom, especially a divorce, and if there seems to be no consequence from the judge for the lies, how can the non-lying party 1-point this out to the judge w/o showing this has been allowed to perpetuate 2 - ask the judge to make notice, 3 - ask for sanctions?
    – logmol
    Mar 26 at 12:30
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    You present evidence that casts doubt on or disproves the lies, or you catch the liar out when their own claims contradict each other.
    – Studoku
    Mar 28 at 8:29
  • I fear if being a poor witness was equated with perjury testifying would have been an intrinsically unfair thing to expect from a witness
    – Neil Meyer
    Aug 23 at 19:00
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Perjury is more than a lie

It is a knowing deceit undertaken with the express purpose of misleading the court on a material issue.

It isn’t misremembering, or contradicting oneself (or others), or stating falsehoods believing they are truths, or lying about things that don’t matter.

The fact that one party’s recollection of events are different from another’s is not perjury, that’s just humans being human.

Memory is neither accurate nor immutable; the mere act of recalling a memory changes that memory. This is particularly so if there is a strong personal investment in that memory - such as if it might help you win a court case, for example. This is such well-established science that even the legal profession understands it.

Remember, if the capital T Truth was obvious to everyone, there wouldn’t be a judge involved at all except to rubber stamp the agreement.

The role of the trier of fact is to engage with the contradictory evidence decide which they believe, which they don’t and which they are unsure about and then weigh that against the required standard of proof to see if the party bearing the onus of proof has met their evidentiary burden.

When someone does actually commit perjury, you bet that judges care.

Marcus Richard Einfeld (born 22 September 1938) is a former Australian judge who served on the Federal Court of Australia and was the inaugural president of the Human Rights and Equal Opportunity Commission. In retirement, he served two years in prison after being convicted of perjury and perverting the course of justice.

In summary, he lied on a Statutory Declaration in order to avoid a $77 speeding fine.

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    Are speeding fines in Australia just unusually high? Because otherwise, that's a hell of a way to be forced to do hard time. "So what are you in for?" "Speeding." Mar 25 at 14:00
  • @DarrelHoffman: If this site is to be believed, they go into the hundreds of AUD. This site suggests that Australia does not use income-based fines (which can be huge for sufficiently wealthy drivers), or at least it did not in 2016.
    – Kevin
    Mar 25 at 17:08
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    @DarrelHoffman And they all moved away from me on the bench there / And the hairy eyeball, and all kinds of mean nasty things / ’Til I said, “And creatin’ a nuisance” / And they all came back, shook my hand / And we had a great time on the bench.
    – KRyan
    Mar 25 at 18:01
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    @DarrelHoffman the fine Mr Einfeld was trying to avoid was $77. He wasn’t jailed for speeding, he was jailed for perjury.
    – Dale M
    Mar 25 at 19:19
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    One British ex-minister and his wife both went to jail for lying about a speeding ticket. He was speeding, got caught, had too many points already and convinced his wife to take the blame. Some time later they got divorced and she went public with the sad affair to hurt her ex. Result: Both in jail.
    – gnasher729
    Aug 23 at 17:25
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Perjury is a crime

In general, Perjury is defined as knowingly telling a lie (not necessarily just falsehood) to the court. The intention behind it is usually to prevent justice to get a correct verdict on correct facts. For example, to shield someone from or to blame someone for a crime. Such behavior is a problem for the courts, so there are usually laws that punish someone committing perjury.

defines it's Perjury in the TPC §37.02 & 03:

Sec. 37.02. PERJURY.

(a) A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning:

(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or

(2) he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.

(b) An offense under this section is a Class A misdemeanor.

Sec. 37.03. AGGRAVATED PERJURY.

(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

(1) is made during or in connection with an official proceeding; and

(2) is material.

(b) An offense under this section is a felony of the third degree.

Over the pond: Germany handling perjury

All links starting here are german, sorry!

In perjury can lead to a conviction being overturned - and the purjuror can and will get punished.

If discovered, you will not stay free, and perjury cases are generally handled quite fast as they can be done from the records of the court with little to no testimony being requested: False testimony without an oath under StGB §153 is punished with a hefty fine or 3 months to 5 years in prison. In case you were put under oath, you committed Meineid under StGB §154, which is punishable by at least one year in the ordinary case or 6 months to 5 years in a "lesser" (minderschwer) case where you rescinded your wrong testimony or it is immaterial to the case. If you are not sure and don't point that out when swearing on your testimony, you could even be punished for that as Fahrlässiger Meineid under StGB 161 unless you correct yourself or point out that you might misremember!

Yes, the german justice system hates wrong testimony so much that under oath the phrasing of "I am sure that X is true" instead of "I believe X to be true" might get you trouble. And the system in Germany handles Perjury cases quite fast: Once the criminal lawsuit is started, such cases can be handled in as little as two weeks, as in this example. This means, it can be a single session, where the facts of the perjury are repeated, the circumstances weighed and then the verdict declared.

Since the german judges act in part as a questioning party, they often know how to steer their questionnaires in ways that discover trouble with the testimony, and how to figure out what is likely the truth when testimony conflicts. The threat of putting a witness under oath - and the increased punishment for wrong testimony stemming from that - is one of the means to try to combat perjury.

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  • I'm curious how to parse (a)(1) in the Texas example. Does the "and the statement is required or authorized by law to be made under oath" apply to both branches of the preceding "or", or only the latter ("swears to the truth of a false statement"), but not the preceding ("makes a false statement under oath")? Mar 25 at 13:04
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    @CharlesDuffy I'd parse it as (A) or (B AND (C or D)): Either he lies under oath, OR he swears that he said the truth in a statement that [could/should] be under oath. ; Note that A already is under oath, so the could/should be under oath doesn't apply there
    – Trish
    Mar 25 at 13:48
  • @Trish: For that interpretation to be grammatically correct, the pronoun "he" would have to be repeated in B. In formation "subject verb-phrase or verb-phrase and subject verb-phrase," the conjunction "and" has a clause, rather than a verb phrase, to its right, and thus grammatically requires a clause, rather than a verb phrase, to its left.
    – supercat
    Mar 25 at 22:39
  • @supercat he makes is not part of A, but the starter, relieving Both A and B of the need for Subject and Verb. In fact,. He makes (A) or (B and (C or D))
    – Trish
    Mar 26 at 7:51
  • @Trish: B starts with the apparent verb "swears", and unless the person "makes swears" it doesn't make sense to pull "makes" out of A. If the statute had said "he makes a false statement under oath or he swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath" or "he makes a false statement under oath or swears to the truth of a previous false statement that is required or authorized by law to be made under oath", then the meaning would be as you state, but the authors didn't write either of those things.
    – supercat
    Mar 26 at 15:08
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In actual practice, most U.S. judges are absolute loath to find that someone is committing perjury or otherwise intentionally lying, and likewise are very averse to parties asserting that someone is doing so in court, even though it happens not infrequently. I would estimate that the percentage of cases in which there is perjured trial or hearing testimony is probably on the order of 10-15%. A classic mistake of people who represent themselves in court without a lawyer is to accuse people who are making assertions that aren't true of lying, which a judge almost always views dimly.

Occasionally, in a particularly clear case, someone will be sanctioned seriously for lying (especially lawyers, who have special obligations to tell the truth). But the vast majority of the time, judges are content to find one person or another's testimony more credible when there is conflicting testimony, most often attributed to factors other than intentional lying (like failure of memory, or inaccurate perception).

In the U.S., perjury prosecutions arising out of court hearing or trial testimony is vanishingly rare, although not actually non-existent. A state like Colorado, with more than five million residents and many thousands of evidentiary trials and hearings each year, at all levels of courts from traffic court to federal district court, probably has less than ten such prosecutions in the vast majority of years.

Monetary sanctions for attorney fees needlessly incurred, or contempt of court sanctions, are much more common for lying in court testimony.

Some of that reluctance is a matter of humility, recognizing that proving that a lie was intentional is very hard and that sometimes judges get it wrong and don't want to discourage people unduly from stating their sincere view of the truth in court. Some of that reluctance is arrogance, as most judges think that they are better at distinguishing lies from the truth in testimony that rigorous scientific studies of the capacity to do so, show that judges vastly overrate their own competence in this department.

For example, there have been a number of cases of women criminally convicted of making false rape accusations in criminal proceedings under oath, and having criminal sentences imposed upon them, that were ultimately proven to be accurate accusations with DNA evidence. Most judges very much want to avoid that kind of nightmare scenario if they can.

I have heard several judges from both South Korea and several judges from Japan state to me in personal discussions (while I was in law school, where many foreign judges studied to obtain graduate degrees beyond a first law degree) that they start from a foundation in a criminal case of assuming that all evidence provided by the prosecution is true and that all contrary defense testimony is a lie, until there is overwhelming corroborating evidence to the contrary.

I can't speak to civil law European judges who have a very different institutional culture from judges in either common law countries, or in East Asia.

This said, judges are, in some respects, an ideologically diverse bunch and your mileage may vary. Some judges care a lot. Others see it as part of the game. Others still are oblivious to the fact that it is happening.

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