King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Apr 18, 2019 14:32:41 GMT -6
WHEREAS there is no specific definition of the crime of perjury in Talossan law, which means that we default to the definition in the law of Wisconsin, and WHEREAS the definition of perjury in Wisconsin law (Wisconsin Statutes 946.31) includes, as one of the elements of the crime, that the false testimony be given "orally", and WHEREAS the nature of Talossa is such that sworn testimony is very rarely given orally, and WHEREAS we still want it to be a crime in Talossa to swear falsely, and WHEREAS the language in the United States code, with minor adjustments, rather admirably suits our needs,
THEREFORE be it enacted by the Ziu that
Whoever having taken an oath before a competent tribunal, officer, or person, in any case in which the law authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true is guilty of the crime of perjury.
Ureu q’estradra sa,
John, Regeu da Talossa
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Miestrâ Schivâ, UrN
Seneschal
the new Jim Hacker
Posts: 6,635
Talossan Since: 6-25-2004
Dame Since: 9-8-2012
Motto: Expulseascâ, reveneascâ
Baron Since: Feudal titles are for gimps
Duke Since: Feudal titles are for gimps
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Post by Miestrâ Schivâ, UrN on Apr 18, 2019 17:50:06 GMT -6
WHEREAS there is no specific definition of the crime of perjury in Talossan law, which means that we default to the definition in the law of Wisconsin, and WHEREAS the definition of perjury in Wisconsin law (Wisconsin Statutes 946.31) includes, as one of the elements of the crime, that the false testimony be given "orally", and WHEREAS the nature of Talossa is such that sworn testimony is very rarely given orally, and WHEREAS we still want it to be a crime in Talossa to swear falsely, and WHEREAS the language in the United States code, with minor adjustments, rather admirably suits our needs, THEREFORE be it enacted by the Ziu that Whoever having taken an oath before a competent tribunal, officer, or person, in any case in which the law authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true is guilty of the crime of perjury. Ureu q’estradra sa, John, Regeu da Talossa May I ask, sir, has any recent or potential event made you think that this is something which needs clarifying right now in Talossa; or is this "just in case"?
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King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Apr 19, 2019 8:54:27 GMT -6
There were some accusations of perjury repeatedly made in Cort, but no charges filed; and the misdeeds alleged didn't meet the definition of perjury either in Talossan (Wisconsin) law, or the definitions we find in law dictionaries. I thought some explicit clarification might be a good idea, going forward. I didn't see the value of adding another WHEREAS clause that might rub someone the wrong way.
— John R
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Post by Sir Alexandreu Davinescu on Apr 19, 2019 11:33:39 GMT -6
Yes, certainly it should not seem like it is motivated to criminalize anyone in particular's behavior. There have been some bills that have failed pretty much just for that reason, not because of their merits, so avoiding that is a good idea. Everyone can agree that perjury is wrong and we have a lousy definition of it, so fixing that is a good thing.
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Post by Viteu Marcianüs on Apr 19, 2019 13:41:11 GMT -6
I'm overlooking the background of John's reasoning here. I'm not opposed to this statute per se. Few things that would get my support- (1) exemption/exclusion of certain oaths. Certainly someone who takes the oath of citizenship but is a staunch proponent of a new organic law would be subject to criminal liability under this statute.
(2) the mens rea is lacking- "willingly and knowingly*. Someone should know that they're lying. An honest mistake of fact should not impose criminal liability.
(3) what type of crime is this (ie, we class crimes for punishment)
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King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Apr 19, 2019 14:05:02 GMT -6
To V's 1st two points:
1. The definition covers only oaths to tell the truth, not oaths in general. It covers *testimony*, not promises.
2. The mens rea is certainly there: "Who ... willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true". Willfully testifies to what he does not believe to be true.
As to the 3rd point, I'm not sure what to say. Perjury should certainly be considered a pretty serious felony; do we want to do more than simply declare it criminal, and leave the punishment to the Cort?
— John R
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Post by Viteu Marcianüs on Apr 19, 2019 14:54:29 GMT -6
To go in order- (1) I'm not entirely on board with that. Perhaps you would be inclined to include language to clarify that? (2) "Willfully" is not a clear term of intent. It is not the same as the four commons forms of mens rea, as recognized in section 2.02 of the Model Penal Code (US), to wit: purposely, knowingly, recklessly, or negligently. You can read a summary of the MPC's definitions of mens rea here. Nolo, a DIY legal publisher, explains that "usually adds nothing to the general mens rea requirement." You can read Nolo's summary here. Moreover, if you would like to read the actual MPC and some commentary, you can click here. The footnotes provide a thorough analysis of willful and what it can mean. According to this website, under Canadian law, willful has, at times been understood as "intentionally" or "recklessly." Notably, the Nolo summary explains "At times, however, the term "willfully" in a statute has been interpreted to require the government to prove not only that a person acted intentionally, but also that the person intended to break the law. (This is an unusual instance in which "ignorance of the law" actually is an excuse!) For example, in one case a federal law made it illegal to willfully bring in to the country more than $10,000 in cash without declaring it to customs officials. The U.S. Supreme Court decided that to convict a person of violating this law, the government had to prove that the person knew the law's requirements. (Ratzlaf v. U.S., 510 U.S. 135 (1994).)" You rely, I presume, on 18 U.S.C. § 1621. I quickly shepardized the statute with the search term "mens rea" and came up with United States v. Alvarez, 967 U.S. 709, 741 n. 2 (2012, dissent). I did not look at any Circuit or District Court decisions (I haven't the time). In any event, in Alvarez, the dissent (Thomas, joined by Scalia and Alito), implicitly acknowledges that "willful" is unclear and looks to other parts of the statute to find that it contains a "knowing" requirement. That is to say--I do not think we can fairly say that the "mens rea is certainly there" when there is persuasive authority that, if the Cort had to interpret the statute, it would have to figure out the mens rea. I am not acting contrarian for the sake of acting contrarian. I do not see why we would want to create ambiguity in a criminal statute. I would take "willfully" out and put in "knowingly" or would just amend it to "willfully and knowingly..." (3) El Lexhatx is replete with criminal statutes, labeling some as felonies and others as misdemeanors, each having classes. I am not of the mind that perjury should be solely a felony. I think some perjury, where you knowingly lie to the Cort to gain an advantage at notherr person's detriment, should be a felony. But I could also see an instance where taking an oath and lying out of fear, where another isn't going to suffer, should be punished but as a misdemeanor. I do not want to leave it open to the Cort to decide, and would much prefer more explicit language as to the type of perjury. Again, I'm not trying to be difficult; I actually do not disagree with codifying what perjury is. Given the foregoing, however, I cannot support this bill as is. As I said during the campaign, part of debate in good faith is acknowledging whether one's proposed changes are only to make it tolerable even if they plan to vote against it, or if proposed changes would garner support, as to inform the other party of whether the compromise will lead to support. I am saying that with the proposed changes, I would support this. I am also going to make it clear that I am open to other language (i.e., it does not have to be my particular changes; I'm open to a middle ground).
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King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Apr 19, 2019 17:00:48 GMT -6
1) What language would you suggest? I think what's there is sufficient, but I'm not married to it. It does say "an oath [...] that he will testify [...] truly, or that any written testimony [...] by him subscribed, is true". Those are the only oaths covered by this.
2) Now that I read it again, and in light of what you say, I think the word "willfully" doesn't add anything. I'd say that "states or subscribes any material matter which he does not believe to be true" covers the mens rea thing pretty well. Since it's the witness's *belief* as to the truth of his testimony that's at issue, he doesn't have to KNOW what he's testifying to is false, he just has to know that he doesn't believe it to be true. What possible act would "knowingly" rule out? (Which said, I don't hate it; I just don't get why it would be helpful.)
— John R
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Post by Viteu Marcianüs on Apr 19, 2019 17:11:50 GMT -6
As to (1), let me ponder this, and perhaps others might comment. I could see me dropping this issue if we did something wholly new in Talossa, include a short "bill jacket" that clearly states the Legislative intent if the issue ever arose.
As to 2, I'm on a train into the City. I think reading the first link would help explain the difference. Mens rea is important because it informs the person what the law actually is and what is needed for prosecution. I'm curious to see other's thoughts. I'll post why I think knowingly is appropiate when I'm in front of my computer tomorrow.
On another note, I appreciate your engagement and openness on this.
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Post by Viteu Marcianüs on Apr 23, 2019 10:50:22 GMT -6
I was hoping others would comment, but okay. I think it's important to use the generally accepted four types of mens rea. If for no other reason, there is substantial persuasive authority for what they mean. If we do not include an appropriate mens rea, we rely on the Corts to determine " only that mens rea which is necessary to separate 'wrongful from innocent conduct.'" I think use of "knowingly" is appropriate--a person is making an affirmative statement that something is true. Perjury is based on the purpose of lying. A person knows what they are saying is untrue and says it anyway. They are disregarding the facts. This is distinguishable from someone who asserts a fact as a belief. Even then, a qualifying "I believe this to be a fact" would not shield liability if the person knows that their fact is wrong. This is to say, I think the threshold issue for a perjury inquiry should be--Did the individual know that their assertion, as stated at that moment, was, as a matter fact, untrue, and assert it with disregard for the truth? "Knowingly" encapsulates this. If a person should have known a fact was not true, but they did not know it was not true, that should not impose criminal liability. If a person comes to learn that an assertion is, as a matter of fact, untrue, but they did not know it then, that is not perjury. Ultimately, what I'm getting at, is the basic concept of mens rea--the person must have a guilty state of mind. Knowingly asserting something as a fact with knowledge that the assertion is not fact or misleads from the truth speaks to the persons intent of trying to mislead the Cort.
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King John
King of Talossa
Posts: 2,415
Talossan Since: 5-7-2005
Knight Since: 11-30-2005
Motto: COR UNUM
King Since: 3-14-2007
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Post by King John on Apr 23, 2019 16:04:46 GMT -6
An interesting point is that in all the classic definitions of perjury that I've found, a person testifying to something he believes to be false, but which in fact turns out to be true, has committed perjury. I don't know whether anyone's ever been prosecuted for such an event, though.
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Post by Viteu Marcianüs on Apr 23, 2019 17:29:34 GMT -6
Can you provide a reference for that? Not that I am questioning the veracity, but I'm curious how it was determined to be perjury. I honestly am of the mind, and perhaps this was not the case back then, that if someone truly believes something to be accurate, but it turns out to be, that person did not commit perjury. I want to know whether the person's motive was to lie.
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Post by Viteu Marcianüs on Apr 23, 2019 18:34:01 GMT -6
I'd like for other to offer input on the bill and the foregoing discussion. John, in my estimation, presents a bill that I can support with some changes. We have engaged in a fair discussion on some issues I see, but right now it is only the two of us. I truly think that input from others could help us find compromised language that the entire Ziu could support. In fact, if the finished product, with compromised language, addresses the concerns (doesn't have to be my language) that I raised, I may be inclined to ask to be a sponsor.
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Post by Eðo Grischun on Apr 24, 2019 18:08:05 GMT -6
I've been reading along. My initial thought and concern already came up:
"(1) exemption/exclusion of certain oaths. Certainly someone who takes the oath of citizenship but is a staunch proponent of a new organic law would be subject to criminal liability under this statute." (Quote: V).
I'm not entirely satisfied that the language used in this proposal sets a limit at testimony only. Though, I'm having to exert some real mental muscle flexing to follow the flow of words that John has chosen to use. Could the language be made to read a little less convoluted and a little more lay?
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Post by Antaglha Xhenerös Somelieir on Apr 27, 2019 0:09:34 GMT -6
My question with this, and excuse me if im showing ignorance of the law here. But why would the case be to default to Wisconsin law? I would have thought it would be at least US law and definitions, and generally accepted international definitions. Which i believe the definition of Perjury would come under this, even without being clearly defined in Talossan law. From what i can tell from reading the Org Law, it would be upto the Justices to interpret how perjury is defined in Talossa, which would be in accorance with the rights of Talossans in accorance with the rights accorded in the constitution. And i believe that in the constitution, under section seven of the covenment of rights and freedoms states "No person shall be found guilty on account of any act or omission, unless, at the time of the act or omission, it constituted an offence under Talossan or international law, or was criminal according to the general principles of law recognized by the community of civilized nations, as interpreted by Talossan courts in line with Talossan traditions and needs" So i believe under this, as Perjury in the eyes of general principles of law recognised by the afformentioned community, would accept that perjury is both Written and Oral under Sworn testmony, or afformations. So under said provisions, even with my being unclear how wisconsin law plays into this, i believe that this law is uneeded based on the points i have made here, as i believe the courts would be bound to accept the general international definition of perjury, which isnt limited purely by oral testimony. unless my reading of this situation is wrong?
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