Peoria, AZ asked in Family Law for Arizona

Q: Family law - called into court as respondent and was not put under oath but made a false statement. What now?

We were supposed to have an evidentiary hearing and the night before I fell and injured my wrist. I was in the hospital when I called to let the court know of my situation and was asked to quickly appear telephonically. I did and we rescheduled the court date, however I made a false statement. I was not sworn in and did not take oath so what happens now?

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1 Lawyer Answer
Kai Michael Henderson
Kai Michael Henderson

A: This is a tricky question and the facts provided do not provide enough to really flesh this out. If you are being charged with fraud or perjury, you should bring a question like this to the criminal forums.

It sounds as though you might have just been mistaken and did not mean to make the statement, and thus the knowing element is not available. It is unclear what the level of the false statement was. If it was perhaps I will be in the hospital until Wednesday and you knew you would be out on Tuesday, it is unlikely that any party will raise a substantive claim. In any given family law dispute there can be dozens of materially false statements that are relatively minor, hard to prove, and ultimately not entirely relevant to the outcome. Judges do not generally think much of them.

A person can be charged with perjury or fraud in a variety of situations though, so it is best to keep lying out of the Courtroom.

A.R.S. 13-2702 provides that a person commits perjury when they give "[a] false unsworn declaration, certificate, verification or statement in regard to a material issue that the person subscribes as true under penalty of perjury, believing it to be false." Whether or not you were under penalty of perjury is a question for your attorney as that would be a Class 4 Felony. A cursory examination of the case law does not show much in the way of appellate cases dealing with situations such as yours arising out of unsworn testimony in a civil matter. More research may be warranted if you wanted to know for sure.

However this leads into A.R.S. 13-2704. This statute generally has been discussed at the appellate level in Arizona in a criminal contexts, except for a couple of enterprising attorneys seeking to use the statute for a tort. However it does provide that it is a Class 1 Misdemeanor in "[m]aking any statement that he believes to be false in regard to a material issue to a public servant in connection with any official proceeding as defined in section 13-2801." A.R.S. 13-2801 provides that an "official proceeding" means a "proceeding heard before any legislative, judicial, administrative or other governmental agency or official authorized to hear evidence under oath." Any statute punishing courtroom behavior may also be subject to Judicial permission for the State to pursue, as it may be an interference of the Legislative or Executive branches into the operation of the Judicial branch.

There could be some contempt charges and it could affect the outcome of your case based on the Judge's view of your credibility. If the Judge knows affirmatively that you have lied in the past, that may make the Judge less likely to believe you in the future. These are issues to discuss with your attorney to see if you might want to address them with the Court to attempt to restore your credibility so you can better present your case. A person in this position would need to consult with an attorney.

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