The following article is from the publication "Under Cover." "Under Cover is the official publication of the California Department of Insurance Fraud Division and is published quarterly. Reprinting of articles is encouraged. Please credit Under Cover and forward a copy of any reprints to the editor."
Winter 1999, VOL. 3, NO. 1
DISTRICT ATTORNEYS SPEAK OUT
The Unreviewed Deposition Code of Civil Procedure, Section 2025(q) and Perjury Prosecutions
By Steve M. Katz
Deputy District Attorney
Kern County District Attorney’s Office
Some of the technical rules regarding perjury may make it seem very difficult to prosecute the crime where a deponent reviewed and signed his or her deposition. However, with the proper pleading and proof, even the unreviewed deposition can serve as the evidence to support a perjury charge.
The law says a witness can give false testimony and then later correct that testimony, or correct it after the transcription of the testimony. Recantation by a witness is no defense, but correction or attempted correction may be offered as relevant on the issue of intent. People v. Baranov, 201 Cal App. 2d 52, 19 Cal. Rptr. 866 (1962).
Penal Code Section 124 requires proof of "delivery" (perjury is not complete until the statement is delivered with the intent that it be uttered or published as true). Code of Civil Procedure Section 2025(q) allows that a deponent may "change the form or substance of the answer to any question" within thirty days of the court reporter sending the deponent written notice of the completion of the transcript. If the deponent does not review the transcript within the allotted time the testimony can be used as if it were reviewed. Can we prosecute perjury in the unreviewed deposition?
The problem arose in People v. Hjelm, 224 Cal. App. 2d 649, 37 Cal. Rptr. 36 (1964). The defendant never reviewed his deposition. The appellate court ruled that the prosecution could not prove the delivery of the statements. Although Code of Civil Procedure 2025(q) did not exist when Hjelm was decided, it does not appear that the code overruled the Hjelm decision. The Hjelm court focused on the specific intent of perjury: "The court was not presented here with the problem, as in a civil case, whether or not a deposition could be used, but rather with a criminal charge in which specific intent was an integral part." 224 Cal. App. 2d 657. Although a footnote in Chavez v. Zapata Ocean Resources, Inc. 155 Cal. App. 3d 115, 201 Cal. Rptr. 887 (1984) said Hjelm was overruled, it is not settled whether that footnote actually addressed the delivery requirement of perjury.
Many deponents never review their transcribed deposition testimony. So how does the prosecutor prove delivery in those instances? Frank Meyer of the Sacramento County District Attorney’s Office said his office faced this issue. They specifically alleged in their complaint that the defendant was provided with written notice and an opportunity to review and change the transcript, but did not do so. Therefore, the testimony was delivered with the intent to publish it as true, within the meaning of both Code of Civil Procedure Section 2025(q) and Penal Code Section 124. This approach successfully overcame challenges at both the trial court and appellate level to the prosecution of a perjury charge based upon unreviewed testimony.
Civil practitioners often do not clearly cover Code of Civil Procedure Section 2025(q) in depositions. Rather, they will agree on the record that "the usual stipulations apply," meaning the deposition can be used in the civil case if not reviewed by the deponent. The approach used by the Sacramento County District Attorney’s Office should overcome any allegation by the defense that the defendant did not deliver the perjury even where civil counsel simply put on the record "the usual stipulations apply." Insurance defense practitioners could help prosecutors tremendously by putting the dictates of Code of Civil Procedure Section 2025(q) on the record and eliciting testimony from a deponent that he/she understands what the section means. It may also be helpful if the deponent is clearly advised, on the record, of what constitutes perjury.