Crimes Against Public Authority

Escape

False Information to a Police Officer (FIPO)

Hindering a Police Officer

Obstruction of Justice

Perjury and False Swearing

  • CR28-531.  Perjury, 13 V.S.A. § 2901 (06/20/12)
  • CR28-541.  False Swearing, 13 V.S.A. § 2904 (06/20/12)

Resisting Arrest

Reporter’s Note

Endeavored to Obstruct Justice.  The term “endeavored” does not require success in a defendant’s attempt to obstruct justice; instead, a mere effort satisfies that element. See State v. Wiley, 2007 VT 13, ¶ 15, 181 Vt. 300. In State v. Fucci, 2015 VT 39, ¶ 8, the defendant argued that, under Wiley, an “endeavor” is synonymous with an “attempt.” The Court clarified that it had used “attempt” for its ordinary connotation rather than its special legal meaning, as defined in 13 V.S.A. § 9(a). While acknowledging that other courts have held that the effort necessary to fulfill the actus reus element of the federal obstruction-of-justice statute is less than that for attempt, the Court declined to decide in Fucci “whether under Vermont law the steps necessary for an endeavor are the same as for an attempt.”

Perjury.  The model instruction contains an essential element of wilfulness.  The requirement that the false testimony be given “wilfully” was included as a supplemental instruction in State v. Wood, 99 Vt. 490, 498 (1926).  The jury was told that false testimony given “wilfully” means that it was given knowingly and understandingly.  Id. at 498.

When a defendant is charged with perjury under 13 V.S.A. § 2901, the State must prove that he or she made the false statement in a proceeding in a court of justice.  The model instruction also requires that the defendant made the false statement when he or she was lawfully required to depose the truth, even though it may be presumed that an oath had been administered as required by law.  State v. Lawrence, 134 Vt. 373, 375 (1976) (citing State v. Chamberlin, 30 Vt. 559 (1859)).

“A false statement under oath generally may be punished as perjury only if it was material to an issue in the proceeding in which it was made.”  State v. LaCourse, 168 Vt. 162, 163-64 (1998).  The Supreme Court suggested, without deciding, that the question of materiality is an essential element of the charge that must be submitted to the jury.  Id. at 164 (citing United States v. Gaudin, 515 U.S. 506 (1995)).

Perjury must be proven “by the testimony of two witnesses, or by the testimony of one witness with independent corroborating evidence.”  State v. Tinker, 165 Vt. 548 (1996) (quoting State v. Wheel, 155 Vt. 587, 607 (1990)).  The testimony of one witness, corroborated by the testimony of another or by circumstances, is sufficient, “if thereby the crime is proved beyond a reasonable doubt.”  State v. Woolley, 109 Vt. 53, 57 (1937).  “The independent corroborating evidence must be equal in weight to the testimony of another witness, and it must be, by itself, inconsistent with the innocence of the defendant.”  State v. Tonzola, 159 Vt. 491, 497 (1993) (quoting People v. Fueston, 717 P.2d 978, 980 (Colo. App. 1985), rev’d on other grounds, 749 P.2d 952 (Colo. 1988)).  The Vermont Supreme Court recently affirmed the requirement of corroborating evidence in State v. Hutchins, 2005 VT 47, 178 Vt. 551.

Resisting Arrest. The statute specifies that the attempt to prevent the arrest must take place “when it would reasonably appear that the latter is a law enforcement officer.”  13 V.S.A. § 3017.  The instruction explains that the element is satisfied by a standard of objective reasonableness, i.e. under all the circumstances, it would have appeared to an objective reasonable observer that the person attempting to make the arrest was in fact a law enforcement officer.

The crime of resisting arrest requires proof that the defendant was attempting to prevent a “lawful arrest.”  Compare State v. Peters, 141 Vt. 341, 347 (1982) (explaining that for the crime of simple assault on a police officer, the state must show only that the officer was performing a lawful duty at the time of the arrest) with 13 V.S.A. § 3017 (explaining that for the crime of resisting arrest, the arrest itself must be lawful).  In some cases, the state may need to prove that a warrantless arrest was proper under Vermont Criminal Procedure Rule 3, such as by showing that the arresting officer had probable cause to make an arrest.  In such a case, the explanation of the term “lawful arrest” should be expanded to include a fact-specific instruction asking the jury whether or not the officer had probable cause to believe that the specified predicate acts had been committed.  See Arthur v. State, 24 A.3d 667, 676–77 (Md. 2011) (explaining issue under nearly-identical state statute).

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