cdTOCtest

II. FALSE SWEARING

A. Elements

N.J.S.A. 2C:28-2 proscribes two forms of false
swearing:

1. the making of a false statement under oath or
   swearing the truth of a previous statement not believing
   the statement to be true, N.J.S.A. 2C:28-2a; and


2. the making of inconsistent statements under oath
   where one is false and not believed by the defendant.
   N.J.S.A. 2C:28-2c.

a. Under N.J.S.A. 2C:28-2c, it is not necessary for
the prosecution to prove which statement was false, but
only that one or the other was false and not believed by
the defendant to be true.

N.J.S.A. 2C:28-1a and N.J.S.A. 2C:28-1c define
separate offenses each of which requires jury unanimity.
State v. Bzura, 261 N.J. Super. 602 (App. Div. 1993),
certif. denied, 133 N.J. 443 (1993). Thus the indictment
should clearly state which offense is being charged, and
if both, each should be set forth in separate counts. Id.
at 612. In a prosecution under 2C:28-1c, however,
which authorizes conviction for false swearing of
mutually inconsistent statements, it is not necessary that
the jurors agree about which statement is true and which
is false. Id. at 610.

B. Defenses

As in perjury prosecutions, irregularity in the oath is
no defense, and retraction is an affirmative defense. See
I.C. and I.D., supra.

C. Immunized Testimony and Prosecution for False
Swearing (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:81-17.2a2, the
immunity statute applicable to public employees, do not
exempt those who otherwise enjoy use and derivative-use
immunity from prosecution for false swearing.

D. Guilty Pleas and Prosecution for False Swearing

Prosecutions for false swearing are an exception to the
prohibition of N.J.R.E. 410 against the use of statements
made in the course of plea proceedings when no guilty

plea resulted or when the plea was withdrawn. See I.G.,

supra.

E. False Swearing vs. Perjury; Grading of Each

Unlike perjury, a third-degree offense, false swearing,

a fourth-degree offense, does not require that the false

statement be made in an official proceeding, nor that the

statement be material. Compare N.J.S.A. 2C:28-1a with

N.J.S.A. 2C:28-2a. Moreover, there is no requirement of

corroboration in a prosecution for false swearing as there

is in a perjury prosecution. See N.J.S.A. 2C:28-1e.