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JB Umphrey
JB Umphrey, Lawyer
Category: Criminal Law
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Experience:  Handling criminal and probation matters for over 14 years.
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I have transcripts showing my wife stating that she never signed

Resolved Question:

I have transcripts showing my wife stating that she never signed an affidavit and provided a handwritten statement stating I had a firearm or a civilian permit to carry a firearm. The application for a restraining order states the opposite. Later she stated she never saw me bring a firearm into home ever. How can I file charges against her? Is it possible for me to file perjury charges?
Submitted: 2 years ago.
Category: Criminal Law
Expert:  JB Umphrey replied 2 years ago.
Welcome and thank you for your question!

Please clarify: what injury occurred because of her lies under oath?

How were her lies (made under oath) "material" to any injury you suffered?
Customer: replied 2 years ago.

A restraining order was granted and extended. I lost my home, temporary loss of custody of children, my job was lost because hse would not provide me with essential papers i needed for my job, eligibility for housing expenses relating to a fire. the only way i see our children is through supervised visitation.


 


 


After making the original statement she added that I said I would shoot our children in the head to prevent her from having custody. Never made the statement, don't own a firearm or possess a permit to carry.

Expert:  JB Umphrey replied 2 years ago.
So, it is your claim that it was because of her documented lies that the judge granted the restraining order and, if she had not lied, the judge would have not issued that order and you would not have suffered the harm you did? Is that correct?
Customer: replied 2 years ago.

Yes,


 


She presented a situation where the fear of harm was real and that the existance of firearms and that alledged shooting babies in the head comment, influenced the perception of the Judge.


 


When presented with her application for restraining order, and her handwriting she stated that the signature on the application was not hers.

Expert:  JB Umphrey replied 2 years ago.
Thank you. Did you file an appeal of the judge's order?

Did you file a motion for reconsideration of the judge's order and present proof of the lies in the motion for reconsideration?
Customer: replied 2 years ago.

No I have not


 

Expert:  JB Umphrey replied 2 years ago.
Thank you. There are two things I'd like to share:

First, perjury is a criminal matter. There's a high burden of proof for the prosecutor to prove and jury to consider. I will share the Connecticut criminal jury instruction here:

4.5-9 Perjury -- § 53a-156

Revised to May 20, 2011

The defendant is charged [in count ___] with perjury. The statute defining this offense reads in pertinent part as follows:

a person is guilty of perjury if, in any official proceeding, (he/she) intentionally, (under oath / in an unsworn foreign declaration), (makes a false statement / swears, affirms or testifies falsely), to a material statement which (he/she) does not believe to be true.

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 - Testimony at an official proceeding
The first element is that the testimony was given at an official proceeding (under oath / in an unsworn foreign declaration)1. An "official proceeding" is any proceeding held or that may be held before any legislative, judicial, administrative or other agency or official authorized to take evidence under oath, including any referee, hearing examiner, commissioner or notary or other person taking evidence in connection with any proceeding. The defendant must have, in the presence of an officer authorized to administer an oath, unequivocally taken upon (himself/herself) the obligation of an oath.

Element 2 - Intentionally made false statement
The second element is that the defendant intentionally (made a false statement / swore, affirmed, or testified falsely) knowing or believing the statement to be false. The testimony must have been intentionally and deliberately given falsely and not through inadvertence or by mistake; that is, it was the defendant's specific intent to deceive, and the defendant made the statements knowing or believing that they were false.

<See Intent: Specific, Instruction 2.3-1, and Knowledge, Instruction 2.3-3.>

The state must prove that the defendant made a statement that was untrue in fact and that the defendant believed that it was false.2

The truth or falsity of the defendant's testimony cannot be proved solely on the basis of the uncorroborated testimony of a single witness, even if you find that witness's testimony credible. Rather, it requires corroborated proof through independent and material facts and circumstances supplementing the testimony of the single witness. The corroborative testimony must be of such a character that, when taken in connection with all the other testimony, the falsity of the testimony is established beyond a reasonable doubt.

Element 3 - Material to the proceedings
The third element is that the statement made by the defendant was a statement material to the proceedings. The test of materiality is whether the false testimony was capable of influencing or had the potential to influence the fact finder in deciding the issues.3

[Affirmative Defense4
The statute defining this offense also defines an affirmative defense, which the defendant has raised. <See Affirmative Defense, Instruction 2.9-1.>

The defendant claims that (he/she) was coerced into giving the false testimony. Coercion has two elements. <Insert the elements from Coercion, Instruction 6.12-1.>]

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant gave testimony at an official proceeding (under oath / in an unsworn foreign declaration), 2) the defendant intentionally gave false testimony, and 3) the statement was material to the proceedings.

[<If defendant has not raised the affirmative defense:> If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of perjury, then you shall find the defendant guilty. On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements, you shall then find the defendant not guilty.]

[<If defendant has raised the affirmative defense:> If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements of the crime of perjury, you shall then find the defendant not guilty and not consider the defendant's affirmative defense.

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements, then you shall consider the defendant's affirmative defense. If you unanimously find that the defendant has proved (his/her) defense by a preponderance of the evidence, then you shall find the defendant not guilty. If you unanimously find that the defendant has not proved (his/her) affirmative defense by a preponderance of the evidence, then you shall find the defendant guilty.]
___________
If you believe that you have the materials to meet that burden, then contact the local prosecutor and request the filing of criminal charges.

If you do not have the materials to meet that high criminal burden, then you may want to shift your focus to filing a motion for reconsideration of the judge's order and present proof of the lies in the motion for reconsideration. The judge can rescind the original order if the facts/evidence requires it.

I hope that you found this information to be helpful and, indeed, informative and worthy of a positive rating so that I receive credit for assisting you today.

~~ J.B.
JB Umphrey, Lawyer
Category: Criminal Law
Satisfied Customers: 20232
Experience: Handling criminal and probation matters for over 14 years.
JB Umphrey and 8 other Criminal Law Specialists are ready to help you

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Handling criminal and probation matters for over 14 years.