WPIC 118.02 Perjury—First Degree—Elements

With this instruction, use WPIC 118.12 (Perjury or False Swearing—Requirements of Proof), WPIC 118.15 (Oath—Definition), WPIC 118.16 (Official Proceeding—Definition), WPIC 118.17 (Material Statement—Definition), and WPIC 10.02 (Knowledge—Knowingly—Definition).

If the case involves inconsistent statements charged as allowed by RCW 9A.72.050, see WPIC 118.22 (Perjury—Inconsistent Statements). If retraction is involved, see WPIC 118.20 (Perjury and False Swearing—Retraction).

For a discussion of the phrase “this act” in element (6), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.72.020(1).

The perjury statute is to be construed strictly. A perjury charge cannot be maintained if the testimony of the accused was literally, technically, or legally true, even if the answer was evasive and was intended to be misleading. State v. Olson, 92 Wn.2d 134, 594 P.2d 1337 (1979); State v. White, 31 Wn.App. 655, 644 P.2d 693 (1982).

It has long been the rule that a charge of perjury cannot be based on a false oath in a proceeding before a body that does not have jurisdiction to inquire into the matter that is the subject of the proceeding. State v. Dallagiovanna, 69 Wash. 84, 124 P. 209 (1912). While a court may not have jurisdiction to proceed to judgment, it may have jurisdiction to take cognizance of the case in the first instance and until facts showing lack of jurisdiction appear, any false statement given up to that point may be perjury. See State v. Buchanan, 79 Wn.2d 740, 489 P.2d 744 (1971).

To sustain a perjury conviction, questions and answers that support the allegation must demonstrate both that the defendant was fully aware of the actual meaning behind the examiner's questions and that the defendant knew the answers were not truthful. State v. Stump, 73 Wn.App. 625, 870 P.2d 333 (1994).

Materiality is an element of perjury, but knowledge of materiality is not. In re Pearsall-Stipek, 141 Wn.2d 756, 777–78, 10 P.3d 1034 (2000).

RCW 9A.72.020(2) provides that the defendant's mistaken belief that the statement was not material is not a defense to perjury in the first degree. RCW 9A.72.070 sets forth certain irregularities that do not constitute a defense to perjury. No pattern instruction is proposed. An instruction can usually be drafted in the language of the statute.

For a discussion of the requirements of proof in a perjury or false swearing case, see the Comment to WPIC 118.12 (Perjury or False Swearing—Requirements of Proof).

First degree perjury conviction could be based on a written affidavit that the defendant knew was going to be used in litigation; the affidavit met the requirement that the statement be made “in an official proceeding.” State v. Jacobson, 74 Wn.App. 715, 876 P.2d 916 (1994).