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By Stephen Taylor
Some SIU’s have been disappointed when their perjury referrals were turned down for prosecution. The usual reason for the rejection was that the deposition questioning was too weak. To get a perjury case issued, there must occur a clear and unambiguous lie without any debate about what the question meant.
A large amount of perjury cases issued result when the deponent has concealed medical history to avoid apportionment of the new injury between the pre-existing condition and the new event. Sometimes the deponent may feel that they have recovered from the pre-existing condition and that they are justified in concealing it for privacy reasons. After the depo, when the SIU discovers previously unknown medical records, the SIU often assumes that perjury was committed due to the witness’ failure to disclose the previously unknown history.
Perjury requires the lie to be material. It will be an issue when the witness had no reason to think the question was material. Witnesses can lie to you all they want about immaterial things. It is not enough to say the witness didn’t protest or ask for clarification. Every ambiguity will be resolved in favor of the prospective criminal defendant. Avoiding the ambiguity is the problem of the interrogator. There will be more chance of getting a perjury prosecution and verdict if the witness is told, on the record, that the purpose of the deposition is discovery and that it is the intention of the individual doing the questioning to discover every previous medical complaint, examination or contact they have had in order to resolve all concerns about possible apportionment of the claim.
In a deposition, the claimant does not have to volunteer anything. In fact, they have probably been coached by the plaintiff’s attorney to say as little as possible and answer everything with “yes” or “no.” It is the job of the interrogator to cover all the possible issues with questions that will bring out the desired information if the witness is truthful. When perjury cases are turned down by the district attorney’s office, it is often because the deposition questions were just not good enough.
The claimant does not have to read the interrogator’s mind. If, for instance, the question is for any doctor the deponent saw for a back injury, the deponent will not divulge the two doctors she saw for back disease or disorder. Deponents will key in on limiting words. In asking for a disclosure of medical services for a specified symptom, there will be disclosure only if the witness agrees on the symptom.
Avoid using limiting words until the issues have first been covered with broad questions designed to force admission of an issue. Limiting words may be used to bring out one specific thing at a time, but the general topic must be concluded with a question such as, “Other than what you have told me, is there any other … (complaint of pain, medical exam or treatment, trauma, etc.)?”
Interrogators must remember that when depositions are being conducted, a record is being made which allows the district attorney to review for perjury and, ultimately, one for a jury to review for conviction. Further, there should not be too much concern with the comfort or discomfort of the players; instead, the audience is what matters most. Failing to cover the basics and the specific issues in dispute properly will result in a social encounter with the witness instead of a transcript that can be used to convict on a felony and send someone to prison. Lies told may not become apparent until later research, so the normal interrogation check-list should not be abandoned. All of the standard questions must be asked to get important details on the record. Nothing should be assumed and the presence or absence of facts should not be taken for granted.
On the record, the following should be included: complete identification, starting with the birth date and including place of birth, name born under, all marriages with dates and locations, all other AKAs and the circumstances the other names were used. Also, the driver’s license information, including the physical description listed, should be read into the record. There should be no questions remaining as to the identity claimed by the person being deposed.
Biographical questions should be asked, including name of high school and date dropped out or graduated, colleges attended, with dates and degrees and work history starting at age 18 (but for at least five years). If deponent claims to not know addresses, get street names, cities, etc. This information can be used to sort out other people with similar names in medical files and public records. If deponent resists this area, he or she could be hiding medical records, criminal records or prior insurance claims. Direct questions should be asked about criminal past. If the case is a stress case, there might be a wider latitude in this area. Otherwise, the minimum is, “Have you ever been convicted of a felony? Answer ‘yes’ or ‘no.’” Then, after each yes and explanation, a follow-up question of, “Other than that one, have you been convicted of any others?” must be asked until which time the response is finally, “No others.”
The biographical questions reveal the relative sophistication of the witness and the deponent’s recall of common social and business questions. In a later perjury case, it may be important that the witness could remember and answer questions on living, work and school issues from 1989, but at the same time pretends to have forgotten the slip-and-fall lawsuit against a grocery store or the chiropractors seen in 1988 (to the tune of $7000 in treatment) while a whiplash claim was made. These boring and non-controversial questions about what the witness was doing in the past will be used as a demonstration that memory was working for those years. If this part is skipped, and only questions relative to medical treatment obtained during those years are asked, the witness has a better argument that he or she honestly forgot 1989 and there was no willful and conscious deception.
Medical history should be covered from the present back to birth. For the typical, “I hurt my (insert body part)” case, it is necessary to obtain information on all doctors (including chiropractors) seen for any reason, their names and addresses, all medical facilities visited, names and addresses, and the purpose of each contact. Questions regarding disclosure of all diagnostic tests must be asked, including those done at specialty offices without a doctor being present. After each disclosure, the interrogator should ask, “Other than Doctors X, Y and Z, have you seen any other doctors?” If the deponent declines to reveal an abortionist, a particular subject can be excluded from the question. “Other than doctors not mentioned whom you have seen for gynecological matters only, you have seen no other doctors than those disclosed here? Answer ‘yes’ or ‘no.’” As with the criminal questions, this line should be followed up until the deponent says that there are no more.
The medical services questions may be worked into the biographical questions to clearly demonstrate that the witness was led through the childhood, high school, college/career building, marriage and family stages of life with memory working normally.
If the deposition is intended to cover deponent’s rehabilitation and recovery or lack thereof, the deponent should be pinned down on exactly what activities are no longer possible. If video surveillance is being considered, it is best to do it prior to the deposition so that the interrogator can see if the witness will admit to doing the things that you have proof he is able to do.
The district attorney’s offices will be interested in the perjury case if there is deposition testimony claiming that the deponent stayed in bed for the entire month of July, too injured to turn the pages of a book, while there is July video of him playing basketball at the local playground. Although the fact pattern does not have to be that good, it is preferred that the testimony and physical evidence/witness statements clearly show deceit. The witness should be pinned down, using a calendar if necessary, about exactly what he or she has been doing with his/her time while off injured.
Motive is ignored on most district attorney referrals. MOTIVE IS IMPORTANT! The claimant should be questioned on finances to expose or rule out any reason why the witnesses would be better off on worker’s comp and not working. Any financial events in the year prior to the claim should be discovered as well as lawsuits, child support, existence of children acknowledged or claimed, wage attachments and actions by any tax agency (not just IRS). There should be questions about divorce and separation, job transfers, layoffs and disciplinary events such as write-ups or hours being cut. And, once again, every issue should be ended with, “Other than that which you have already told me, is there any other?” Events in the life of family and friends could be involved. If the spouse has a problem or change of status, the witness may have decided that he or she could stay home on worker’s comp rather than find a new job elsewhere.
In order to accept a case for deposition perjury, the district attorney’s office will require a transcript of the depo and photocopies of whatever it was the witness was hiding (medical reports, accident reports, previous accidents/claims). The referral letter must show jurisdiction in the county for prosecution, cite the false statements verbatim (with depo page and line number) and explain how the witness’s statement will be proven false.
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