cdTOCtest

materiality to the jury, a “procedural defect ... that was
changed after more than a century and a half does not
represent the kind of bedrock procedural element that
should be retroactively applied.” 161 N.J. at 64.

C. Irregularities

It is no defense to a perjury prosecution that the oath
or affirmation was taken or administered in an irregular
manner. A document presented as being made upon oath
or affirmation shall be deemed to have been duly sworn
or affirmed. N.J.S.A. 2C:28-1c.

In a prosecution under 18 U.S.C. § 1623 (1970),
proscribing knowingly making any false material
declaration under oath in any proceedings before or
ancillary to any court or Grand Jury in the United States,
a defendant was convicted for making inconsistent
statements at his guilty plea and in an affidavit for the
purpose of withdrawing his plea. United States v. Stassi,
443 F. Supp. 661, 664 (D.N.J. 1977).

D. Retraction

Retraction of the falsification in the course of the
proceeding or matter in which it was made prior to the
termination of the proceeding or matter without having
caused irreparable harm to any party is an affirmative
defense to perjury. N.J.S.A. 2C:28-1d.

In State in the Interest of J.S., 273 N.J. Super. 450 (Ch.
Div. 1994), the defendant attempted to retract false
statements implicating others in a burglary after he had
pleaded guilty but prior to sentencing. The court
concluded that the attempted retraction was made
within the same “matter,” and the same “proceeding,” as
it occurred prior to disposition. 273 N.J. Super. at 461.
Presumably this holding would not apply where the
defendant has exercised his right to a jury trial, and
retracts the false testimony after the verdict, but,
assuming he was convicted, before any sentencing.

E. Corroboration

No person shall be convicted of perjury where the
proof of falsity rests solely on the testimony of a single
person other than the defendant. N.J.S.A. 2C:28-1e.

The requirement, firmly embedded in our law, of
corroboration in perjury cases is an exception to the rule
of most cases that one witness’ testimony suffices, and has
been criticized by courts and commentators. State v.

Williams, 122 N.J. Super. 377, 379 (App. Div. 1973)

(citing examples).

The rule requiring corroboration of the testimony of

a single witness in perjury prosecutions does not apply to

a prosecution for attempted subornation of perjury.

Williams, 122 N.J. Super. at 381.

F. Immunity Withheld from Perjury Prosecution (See

also, IMMUNITY, this Digest)

N.J.S.A. 2A:81-17.3, the statute conferring

immunity on persons invoking their privilege against

self-incrimination, and N.J.S.A. 2A:81-17.2a(2), the

immunity statute applicable to public employees, do not

exempt those who otherwise enjoy use and derivative-use

immunity from prosecution for perjury.

G. Guilty Pleas and Perjury Prosecution

N.J.R.E. 410 prohibits the use of statements made in

the course of plea proceedings when no guilty plea

resulted or when the plea was later withdrawn. One of

the two exceptions within the rule is “in a criminal

proceeding for perjury, false statement, or other similar

offense, if the statement was made by the defendant

under oath, on the record, and in the presence of

counsel.” N.J.R.E. 410(2). In State v. Rodriguez, 280 N.J.

Super. 590 (App. Div. 1995), the Appellate Division

rejected the defendant’s argument that the exception for

the use of statements made in connection with a

withdrawn guilty plea in perjury prosecutions would

impermissibly chill his right to testify at trial. While a

defendant has a constitutional right to testify, he does not

have a right to commit perjury. Id., at 594 (citing cases).

H. Warning Defense Witnesses About Perjury

Prosecution

Although it is in some circumstances appropriate for

the trial court to warn a witness of the dangers of perjury,

the court errs when it crosses the line from encouraging

the witness to testify truthfully to discouraging the

witness from testifying at all. In State v. Vassos, 237 N.J.

Super. 585 (App. Div. 1990), the Appellate Division

concluded that the trial court’s interruption of a defense

witness to warn him that his testimony could subject him

to perjury prosecution, and striking his testimony when

he subsequently refused to continue, violated the

defendant’s right to a fair trial.