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CIVIL ACTION FOR PERJURY

The following information was developed to assist review and consideration of a proposed new law to provide for a statutory cause of action for civil perjury. Although Connecticut adheres to the Anglo/American doctrine that perjury is a serious crime that underpins our judicial system, civil perjury is not prosecuted in Connecticut and is rarely but occasionally, prosecuted in other states. Considering that anyone that testifies in a judicial proceeding, quasi judicial proceeding or formal discovery proceeding is required to swear to tell the truth "under penalty of perjury", the public is unaware that there is no real penalty for perjury. In fact, many lawyers may not be aware that Connecticut's perjury statute is never considered as applicable to perjury in a civil case. And yet, according to an article published in the New York Times on November 17, 1998 (attached), during the Monica Lewinsky scandal, civil perjury is, on occasion, prosecuted in both state and federal courts. However, these prosecutions are so rare that the Times article notes at page 4 that "For many years, some scholars and many practicing lawyers have suggested that lying under oath is epidemic in the courts." On page 2 of the article, a Florida Judge was quoted as saying "One of the most troubling things in our society today, is people who raise their hands, take an oath to tell the truth and then fail to do that. An analogy might be made to termites that get inside your house. Nobody sees it, nobody knows about it until the house collapses around you." This issue was presented both historically and analytically in a publication by the Washington and Lee Law Review (also attached) entitled "Lying On The Stand Won't

Cost You A Dime: Should Courts Recognize A Civil Action In Tort For Perjury?" This . treatise included a discussion of the Maine statute which provides a statutory cause of action for civil perjury, noting that very little litigation utilizing this law had been brought when the treatise was published in 1987. Since that time only three cases have been brought citing this statute evidencing that prospective litigants are probably dissuaded from bringing any civil action when they realize, as in other civil cases, that their lawyer must be paid in advance, with usually large retainers, for bringing an intentional tort case, and then withdraw, in most cases, if payments due are not forthcoming. The proposed statute in Connecticut is unique because a civil action will lie only if, during the time when a criminal prosecution may be brought, the matter is not prosecuted, then, and only then may a prospective claimant entertain the option of a private action. Accordingly, the Connecticut proposed statute not only supplements the criminal statute but more importantly, relieves the criminal justice division of diverting resources that the prosecutors believe should be directed elsewhere. The time has come for the Connecticut Legislature to recognize that witnesses no longer believe that lying under oath is dishonorable and is contrary to their religious beliefs, and that the result is the oath no longer underpins our civil judicial system which system's foundation is being gradually eroded until "the house collapses around" us. Our legislature has the opportunity to insure the integrity of the judicial system relative to an integral segment of our society, which is understood to be, and expected to be, based on the rule of law.

PREAMBLE Connecticut General Statutes, Title 53A, Penal code, Chapter 952, Offenses 53a-156(a) provides: "A person is guilty of perjury if, in any official proceeding, such person intentionally, under oath, or in an unsworn declaration under sections 1-65aa to 1-65hh Inclusive, makes a false statement, swears, affirms or testifies falsely, to a material statement which such person does not believe to be true."

53a-156(c) provides "Perjury is a class D felony." The Connecticut Appellate Court discussed the significance of the aforementioned statute In Simms v. Seaman, 129 Conn. App. 651, 23 A. 3d 1 (2011) where the court emphasized at page 673 "Furthermore, we also note while no civil remedies can guard against lies, the oath and the fear of being charged with perjury are adequate to warrant an absolute privilege for a witness' statement. .. " Notwithstanding the foregoing statute and the Appellate Court's interpretation and understanding relative thereto, it appears that Connecticut' Division of Criminal Justice does not prosecute civil perjury. Although the civil justice system requires the administration of an oath before testimony is given "the fear of being charged with perjury" is directly dependent upon the faithful execution of the penal law by the criminal justice division. Absent a real, not imagined, penalty for falsely testifying in a civil case the historic protection of an absolute privilege afforded to a witness in a civil proceeding is not warranted. Accordingly, in order to protect the availability of an absolute privilege, and to

provide for an exclusive remedy for a person victimized by perjured civil testimony but not subject any person to both criminal prosecution and subsequent civil liability, the following civil remedy is proposed: PROPOSED LEGISLATION

Any person who under oath makes a false statement, swears, affirms or testifies falsely, to a material statement which such person does not believe to be true against another party in a civil action shall pay that other person treble damages, provided that an action pursuant to this section is not commenced and no arrest warrant has issued within the time permitted for prosecution pursuant to the provision of section 53-156 and section 54-193 and any civil action pursuant to this section Is brought within one year after the time permitted for prosecution pursuant to section 54-193 has expired.

Justifications underlying the denial of a civil remedy for false testimony

1.

Criminal statutes against perjury sufficiently deter witnesses from giving

false testimony. Courts have determined that subjecting a defendant to both criminal prosecution and civil liability for perjury punishes the witness for the same offense twice. There are two problems with this reasoning. (1) The criminal statutes are not a deterrent because there are no prosecutions for civil perjury. (2) The deterrent effect that criminal statutes provide by punishing other intentional wrongs, assault, battery, libel, embezzlement, etc., has never been a basis for courts to refuse civil relief. 2. Judicial refusal of a civil action for perjury is in the public interest for the

finality of judgments based on the doctrine of res judicata and collateral estoppel, however these doctrines are based on either an attempt to relitigate the same claim or relitigation of an issue that was part of the previous action. Neither of these doctrines would conflict with a tort action brought against a party or witness based solely on the truthfulness of their testimony because neither the previous claim or an issue decided in the previous case is being relitigated. 3. Judicial refusal of a civil action for perjury prevents a flood of litigation that

would result therefrom The Maine statute provides a case in point evidencing the insignificant cases that have been brought under that statute. Why? Because the legal cost of bringing an intentional tort case is prohibitive, lawyers do not offer contingency

fee arrangements for intentional tort cases. 4. Judicial justification against a civil action for perjury encourages witnesses

to testify in court. Therefore a witness is provided with an absolute privilege from subsequent suits for any relevant testimony that the witness offered in court. This encourages witnesses to come forward and testify fully, freely, and honestly about the matters at issue without fear of later legal harassment. However, courts do not serve the public policy that supports the witness immunity rule by denying a victim an opportunity to seek redress from a dishonest and untruthful witness. The intent to commit perjury, without excuse or justification, should transform privileged conduct into a tortious act. Accordingly, public policy is served only if the witness immunity rule does not unnecessarily deny compensation to an injured party.

Sec. 52-568. Damages for groundless or vexatious suit or defense. Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asse1ts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.
(1949 Rev., S. 8309; P.A. 82-160, S. 234; P.A. 86-338, S. 9; P.A. 87-526, S. 1, 5; P.A. 93-191, S. 3, 4.) History: P.A. 82-160 substituted "civil action" for "suit"; P.A. 86-338 made section applicable to any person who asse1ts a defense to an action or complaint and added provision requiring payment of double damages if an action is commenced or defense is asserted without probable cause; P.A. 87-526 added Subsec. (b), authorizing public agency to bring comt action against person prosecuting freedom of information commission appeals found by commission to be frivolous, unreasonable and harassing; P .A. 93-191 deleted provisions authorizing court action against persons who brought frivolous, unreasonable or harassing appeals to the freedom of information commission, effective July I, 1993. See Sec. 1-241 re court action against persons who bring frivolous, unreasonable or harassing appeals to the Freedom oflnfmmation Conunission. See Sec. 52-226a re request for special finding. Action lies at common law; II C. 586; but cannot be joined with count on this statute. Id., 587. Joinder of plaintiffs. K. 146. Both malice and want of probable cm1se must be proved. 21 C. 515; 102 C. 444; 107 C. 294; 108 C. 40. "Malice" defmed; may be inferred. 9 C. 313. Evidence of want of probable cause. 3D. 432. Special damages. 2 D. 211. Excessive damages. 9 C. 313. Action for vexatious suit will lie against a private corporation. 22 C. 535. Is constitutional. 82 C. 5. Is not a penal statute. 87 C. 468. Judgment in original action against plaintiff conclusive that it was not vexatious. 75 C. 637. Malice as a necessary element; evidence to prove; 69 C. 512; 86 C. 6; Id., 250; 91 C. 448; 102 C. 439; 105 C. 177; 107 C. 294; advice of counsel as rebutting. 70 C. 235; 107 C. 295. See note to Sec. 52-570. Damages. 69 C. 512; 84 C. Ill; 86 C. 249; 91 C. 448; 102 C. 439. Various matters of evidence considered. 90 C. 545; 105 C. 177. Probable cause a defense; what constitutes. 93 C. 475; 105 C. 177; 107 C. 295. May not base action on this statute for malicious prosecution of suit in New York. ll 0 C. 534. Whether patticular facts constitute probable cause is 8lways a question oflaw; conclusion oftrier is reviewable on apJ)eal. 132 C. 571. Cited. 176 C. 353. Cited. 205 C. 255. P.A. 86-338 cited. 214 C. 1. Cited. 220 C. 225. Cited. 224 C. 29. Statute applies equally to claims against private litigants a11d attorneys and does

not suggest any basis for treating probable cause differently depending 011 the type of defendant against whom the action is brought and therefore in a vexatious litigation action against a law firm the presence or absence of probable cause should be judged by the general objective standard. 281 C. 84. Cited. 43 CA 1. Discussed reDistrict Court ruling on evidence of reasonableness in pursuing a claim and "advice of counsel" defense. 49 CA 582. Plaintiffs vexatious litigation claim based on defendant's filing of an adversary proceeding in Bankruptcy Court is preempted by federal bankruptcy law that provides sanctions for filing frivolous and malicious pleadings. 86 CA 596. Court adopted Indiana Court of Appeals' articulation of objective standard of probable cause: Standard which should govern the reasonableness of attorney's action in instituting litigation for a client is whether claim merits litigation against defendant in question on the basis of facts known to the attorney when suit is commenced; on the basis of the facts known to the law firm, a reasonable attomey familiar with the law of this state would believe that applicable statutes of limitation could be tolled by fraudulent concealment on the part of Retirement Centers. 89 CA 459. Prejudgment remedy is not a civil action for purposes of vexatious litigation. 100 CA 63. Statutory action for vexatious litigation differs from a common-law action only in that a finding of malice is not an essential element, but will setve as a basis for higher damages. I03 CA 20. Trial court properly concluded that law firm did not have a proper purpose in filing a shareholder litigation suit pursuant to Sec. 33-948 to permit inspection of corporate records, where stock repurchase offer had expired prior to filing of suit. Id. Vexatious litigation counterclaim by defendant was premature where the original lawsuit had not yet been terminated in defendant's favor at the time of pleading. 110 CA 511. Elements of a vexatious stilt. 14 CS 293. In an action for vexatious suit, plaintiff must show that the suit complained of terminated in his favor and that there was want of probable cause. Where defendants showed they had knowledge of facts sufficient to justify reasonable men in the belief that there were reasonable grounds for commencing and prosecuting the original action, there was no want of probable cause. 22 CS 272. Section relates only to vexatious suit and has no application to malicious prosecution. 24 CS 256. Complaint in action for vexatious suit must contain allegation prior suit terminated in plaintiffs favor. 31 CS 305. Vexatious suit may be brought as cause of action created by this statute in which treble damages may be awarded or may be instituted under common law in which case damages must be compensatory only. 4 Conn. Cir. Ct. 666.

Sec. 52-564. Treble damages for theft. Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.
(1949 Rev., S. 8305; 1963, P.A. 99.) Histmy: 1963 act provided recovery be treble damages rather than treble the value of the prope1iy stolen. See chapter 952, part IX, re larceny, robbery and related offenses. In a public prosecution for theft, the court will not on conviction award treble damages to the owner. 6 C. 105. Plaintiff not bound to prove his case "beyond a reasonable doubt". 30 C. 103. Rules of evidence are the same as in any civil suit. Id., 556. This is not a penal statute. 74 C. 135; 87 C. 468. Is constitutional. 82 C. 5. Statutory treble damages discussed. 188 C. 36. Cited. 206 C. 125; 216 C. 200; 236 C. 582; 241 C. 678. Statutory theft under section is synonymous with larceny as provided in Sec. 53a-119. 255 C. 20. Statutory theft requires that defendant wrongfully take, obtain or hold property of another. Id. Preponderance of the evidence standard of proof applies to statutory theft claims brought under section. 297 C. 26. Cited. I CA 303; 8 CA 96; 11 CA 161; 18 CA 20; 33 CA 303; 37 CA 7; 42 CA 599; 43 CA 1; 45 CA 46; Id., 324. Statute synonymous with larceny under Sec. 53a119. 47 CA 517. Liability for conversion is a precondition to finding of liability for treble damages under section. 86 CA 527. Because count of plaintiffs complaint alleging civil theft is devoid of any factual assertion that defendants acted with the requisite intent to permanently deprive plaintiff of her property, plaintiff failed to state a cause of action for civil theft, and count is legally insufficient. 99 CA 719. Plaintiff is required to prove the actions alleged by clear and convincing evidence in order to be entitled to an award of treble damages. 112 CA 160; judgment reversed in patt, see 297 C. 26. In order to prove liability under section, plaintiff only had to show that defendant engaged in conduct that was synonymous with larceny, and was not required to show that the funds had been stolen by defendant or anyone else; given defendant's knowledge conceming source and disposition of fimds in question, his continued failure to retum funds constituted an intentional decision on his part to deprive plaintiff of its use offunds. 136 CA 99.