Perjury

Perjury charges are very serious. Contact an experienced New York City perjury crime lawyer immediately if you find yourself under investigation or arrest for perjury. A person commits perjury when he swears falsely. While this sounds simple, it is in reality complex because the perjury statute is filled with terms of art that carry very precise legal definitions. For example, most people know that if you take the stand during a trial and you lie, you are committing perjury. However, the concepts of both taking an oath and giving testimony are much broader than what most people think. Moreover, there are many defenses to perjury that make it hard to prove that a person actually committed perjury, even if it appears that he is lying. This is probably why people like Roger Clemens and Barry Bonds were ultimately acquitted of perjury charges during their respective steroid scandals.

A person "swears falsely" when that person intentionally makes a false statement which he does not believe to be true while he is either giving testimony or when his statement is under oath in a subscribed written instrument.

A person intentionally makes a false statement which he does not believe to be true when that person's conscious objective or purpose is to do so. This means that if a person mistakenly says something that is false, he is not committing perjury if he subjectively believes the statement is true.

The term "testimony" is defined as any oral statement made under oath in a proceeding before any court, body, agency, public servant, or other person authorized by law to conduct such proceeding and to administer the oath or cause it to be administered.

"Oath" includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated.

In any prosecution for perjury, the falsity of any statement may not be established by the uncorroborated testimony of a single witness. This means that a statement cannot be perjurious even if the contradicting statement is believable unless it is corroborated by other evidence. There must be additional evidence which tends to prove that the statement in question is false. This means that in a "he said, she said" context, a person cannot be convicted of perjury even if one version of events is believed versus the other, unless there is additional evidence that shows the person lied in his statement.

When a person makes two statements under oath which are inconsistent to the degree that one of them is necessarily false, and where the circumstances are such that each statement, if false, is perjurious, the inability of the prosecution to establish which of the statements is the false one, does not preclude a prosecution for perjury provided that it is shown that the two statements are irreconsileable. This means that if a person takes an oath and gives two distinct versions of events about something and the two versions are such that one of them must be false, then the person can be prosecuted for perjury even if the government cannot establish which of the two versions is the false one. For example, if I testify that I was in California the night the murder was committed and then I later testify that I was actually in Canada when it happened, then I can be convicted of perjury even if the government doesn't know which statement was the false one. This is true because I must have lied in one of these statements because they are inconsistent to the point of them being irreconsileable.

With regard to all degrees of perjury, there is an affirmative defense in which a person is not guilty of this crime if he can prove that he retracted his false statement in the course of the proceeding in which it was made before such false statement substantially affected the proceeding and before it became manifest that its falsity was or would be exposed. This means that if you "come clean" during your testimony and correct it before it ends and before its obvious that you are lying, you are not guilty of perjury. Like with all affirmative defenses, however, the burden is on the defendant to provide evidence of this.

There are three degrees of perjury under New York law. In its most basic form, "swearing falsely" is Perjury in the Third Degree. Adding certain factors to how and when the false statement was procured, aggravates the degree. For a more detailed explanation regarding the degrees of perjury, what the government needs to prove to sustain a conviction, and what the applicable sanctions are, see below. If you, or a loved one, is accused of perjury, do not hesitate to contact John Buza, an experienced lawyer and former Manhattan prosecutor, for a free consultation.

  • Perjury in the First Degree
Perjury in the First Degree is codified in New York Penal Code Section 210.15. It is a class D felony. There is no minimum period of mandatory incarceration if a person with no prior felony convictions is convicted of a class D (non-violent and non-drug) felony, however, the maximum period of incarceration is an indeterminate sentence of 2 1/3 - 7 years. An indeterminate sentence is one in which the person is sentenced to a range and the department of corrections determines how much of that range the person must serve before he is eligible for release. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 2 - 4 years and the maximum is 3 1/2 - 7 years. There is no period of mandatory parole after the person is released from custody.

For the government to sustain a conviction for Perjury in the First Degree, the government must prove the following three elements beyond a reasonable doubt. It must prove:
  1. the person intentionally made a false statement which the person did not believe to be true;
  2. the false statement consisted of testimony; and
  3. the false statement was material to the action.


  • Perjury in the Second Degree
Perjury in the Second Degree is codified in New York Penal Code Section 210.10. It is a class E felony. There is no minimum period of mandatory incarceration if a person with no prior felony convictions is convicted of a class E (non-violent and non-drug) felony, however, the maximum period of incarceration is an indeterminate sentence of 1 1/3 - 4 years. An indeterminate sentence is one in which the person is sentenced to a range and the department of corrections determines how much of that range the person must serve before he is eligible for release. If the person has been previously convicted of a prior felony within 10 years of the new conviction, excluding time spent in prison, the minimum period of incarceration is 1 1/2 - 3 years and the maximum is 2 - 4 years. There is no period of mandatory parole after the person is released from custody.

For the government to sustain a conviction for Perjury in the Second Degree, the government must prove the following four elements beyond a reasonable doubt. It must prove:
  1. the person intentionally made a false statement which the person did not believe to be true;
  2. the person did so under oath in a subscribed written instrument for which an oath was required by law;
  3. the person did so with the intent to mislead a public servant in the performance of his official functions; and
  4. the false statement was material to the action, proceeding, or matter involved.


  • Perjury in the Third Degree
Perjury in the Third Degree is codified in New York Penal Code Section 210.05. It is a class a class A misdemeanor, which is punishable by up to one year in jail.

For the government to sustain a conviction for Perjury in the Third Degree, the government must prove the following two elements beyond a reasonable doubt. It must prove:
  1. the person intentionally made a false statement which the person did not believe to be true; and
  2. the person did so while either: (i) giving testimony; or (ii) was under oath in a subscribed written statement.

A false statement is considered "material" to an action, proceeding or matter when it reflects on the matter under consideration during the action or proceeding in which it is made, or tends to support and give credit to the witness in respect to a main fact in issue.

Accusations of perjury are serious. If you, or a loved one, is accused of perjury, do not hesitate to contact John Buza, an experienced lawyer and former Manhattan prosecutor, for a free consultation.