WPIC 118.22 Perjury—False Swearing—Inconsistent Statements

Use this instruction when the case is filed under RCW 9A.72.050, alleging inconsistent statements made by the defendant in the course of an official proceeding. Do not use WPIC 118.12 (Perjury or False Swearing—Requirements of Proof) if this instruction is given.

In the first paragraph, use the bracketed word “material” depending on whether perjury or false swearing is before the jury. The instruction's bracketed second paragraph should be used when the jury could find that one of the statements was not material, in which case the statement would constitute false swearing rather than perjury. For further discussion of materiality, see the Comment below.

RCW 9A.72.050(1), (2).

The instruction's bracketed second paragraph should be used only in those cases that require the jury to analyze false swearing. The statute authorizes the prosecutor to charge two inconsistent material statements as alternatives in a single count, if each statement was given in the course of an official proceeding and one or the other statement was both false and known to be false. RCW 9A.72.050(1). These allegations, if proved, would support convictions of first degree perjury, rather than only of false swearing. Accordingly, the Washington Supreme Court has held that the statute's application to false swearing is as follows: “[T]he State may charge successive false statements that are alleged to be material, but if it fails to prove that one of the statements is material, then the defendant may be convicted only of false swearing.” In re Pearsall-Stipek, 141 Wn.2d 756, 774–75, 10 P.3d 1034 (2000).

The statute also provides that a defendant may be convicted only of the lesser degree if different degrees of perjury are involved in the two statements. See RCW 9A.72.050(2). Language about the two degrees of perjury is omitted from the instruction because it does not appear that second degree perjury could be involved. Perjury in the second degree cannot be committed in an official proceeding. State v. Wilson, 83 Wash. 419, 145 P. 455 (1915).

The present statute, adopted in 1975, made a change in the law. Under the prior law, cases held that the prosecution had to show which of the statements was false. State v. Wallis, 50 Wn.2d 350, 311 P.2d 659 (1957). Moreover, the statute conflicts with cases that hold that contradictory statements by a defendant, sworn or unsworn, are not direct evidence of the falsity of testimony. See State v. Wallis, 50 Wn.2d at 311; Nessman v. Sumpter, 27 Wn.App. 18, 615 P.2d 522 (1980); WPIC 118.12 (Perjury or False Swearing—Requirements of Proof).