Section 37.06 removes one of the ordinary burdens in a perjury prosecution. Where a person has made two sworn statements that cannot both be true, the State does not have to identify — or prove — which one was the lie.
What the Statute Says
An information or indictment for perjury under Section 37.02 or aggravated perjury under Section 37.03 that alleges that the declarant has made statements under oath, both of which cannot be true, need not allege which statement is false. At the trial the prosecution need not prove which statement is false.
What It Changes, and What It Does Not
What it changes. In an ordinary perjury case the State must identify a specific false statement and prove its falsity. Under this provision, proving that two sworn statements are irreconcilable substitutes for that showing.
What it does not change. The State must still prove every other element of perjury — that the declarant made the statement with intent to deceive and with knowledge of the statement's meaning, under an oath required or authorized by law. For aggravated perjury it must also prove the statement was made during or in connection with an official proceeding and was material.
Where These Cases Arise
- Testimony that changes. A witness says one thing at a deposition, grand jury, or examining trial and something different at trial.
- Affidavits versus testimony. A sworn affidavit that conflicts with later sworn testimony. In family violence cases, a complainant who gave a statement to police and then signs an affidavit of non-prosecution is sometimes threatened with this exposure — a dynamic that anyone in that position should discuss with their own lawyer.
- Civil and criminal overlap. Sworn statements in a divorce, custody, or civil case that conflict with criminal testimony.
Defenses
The statements are not irreconcilable. The whole theory depends on the two statements being incapable of both being true. Statements made at different levels of detail, in answer to differently worded questions, or about different time frames frequently can be reconciled — and reconciling them defeats the charge.
Ambiguous questions. A truthful answer to a question the witness understood differently than the questioner intended is not perjury. The transcript context matters enormously.
Memory, not deceit. Recollection genuinely changes — with time, with refreshed memory, with documents reviewed between proceedings. Perjury requires intent to deceive, and an honest correction is the opposite.
Recantation. Section 37.05 provides a defense where the declarant retracts the false statement before completion of the testimony at the official proceeding and before it becomes manifest that the falsity would be exposed.
Not under a required or authorized oath. The oath must have been one required or authorized by law.
Related
- Perjury (37.02) · Aggravated perjury (37.03) · Materiality (37.04)
- Assault family member · Tampering with a witness (36.05)
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.