¶33
(concurring) — The majority concludes that RCW 9A.72.010(1) is unconstitutional insofar as it provides that materiality of a false statement giving rise to a conviction for perjury is a question of law for the courts. But although the majority states the basic rule that a statute should be construed to be constitutional where possible, it fails to follow this principle. The majority also fails to give effect to the legislature’s intent that a court assess materiality. As a result, the majority gives less protection to the exercise of First Amendment rights because it excises from the statute the requirement that a judge be convinced that the statement forming the basis for a criminal charge is a “material” misstatement before a person is put through the ordeal of a criminal trial.
Madsen J.¶34 Contrary to the majority’s belief, RCW 9A.72.010(1) can be construed as constitutional while giving effect to legislative intent that materiality be determined by the court.
¶35 RCW 9A.72.020(1) states that an individual is guilty of first degree perjury if he or she “makes a materially false *293statement which he [or she] knows to be false under an oath required or authorized by law.” RCW 9A.72.010(1) defines “materially false statement” as “any false statement oral or written, regardless of its admissibility under the rules of evidence, which could have affected the course or outcome of the proceeding.” Of concern here, RCW 9A.72.010(1) additionally provides that “whether a false statement is material shall be determined by the court as a matter of law.” There is no dispute in this case that materiality is an element of the crime of perjury and that the State must prove materiality beyond a reasonable doubt.8
¶36 Whenever possible, a statute must be construed as constitutional. State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997) (citing New York v. Ferber, 458 U.S. 747, 769 n.24, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982)). In addition, when interpreting a statute, a court should always attempt to ascertain and give effect to the legislature’s intent. State v. Williams, 158 Wn.2d 904, 148 P.3d 993 (2006). In RCW 9A.72.010(1), the legislature has expressly stated that the trial court must determine the materiality of the false statement alleged to constitute perjury.
f 37 If materiality is an element of the offense of perjury, then, as the United States Supreme Court held in United States v. Gaudin, 515 U.S. 506, 522-23, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995), the jury must pass on the materiality of the false statements alleged to constitute perjury. But this does not mean that a court cannot assess materiality *294for another purpose. In the course of its analysis in Gaudin, 515 U.S. at 521, the Court observed that “[i]t is commonplace for the same mixed question of law and fact to be assigned to the court for one purpose, and to the jury for another.” The Court gave as an example the question of probable cause to conduct a search, which is a question for the court when it arises in the context of a motion to suppress evidence obtained during the search, but a question for the jury when it is an element of the crime of depriving an individual of constitutional rights under color of law. Id.
¶38 Similarly, materiality is a mixed question of law and fact that can go to the court for one purpose and to the jury for another. The language stating that materiality is a question of law for the courts is immediately preceded by the definition of “materiality” and the express direction that materiality does not depend upon admissibility of the statement under the rules of evidence. RCW 9A.72.010(1) thus pertains to the kind of evidence that will, or will not, establish materiality. It is, therefore, reasonable to construe the statute to mean that the court can determine “materiality” as part of a preliminary inquiry by the court, assuring that a defendant will not stand trial for the crime of perjury when evidence of materiality is lacking, i.e., the false statement is immaterial as a matter of law. Construed in this way, the statutory language directing a judicial determination of materiality provides for an assessment akin to a Knapstad9 inquiry, i.e., the statute provides a procedure for dismissing a criminal prosecution where the evidence is legally insufficient to support a finding of guilt.
¶39 This gatekeeping role of the court may be of significant value, as the Florida Supreme Court has observed:
“[T]here is a mind-set in the average juror to condemn any false statement made under oath and, in the hands of a persuasive prosecutor, lies told under oath by an accused about any matter may lead to the conviction of the liar of perjury. In such *295instances, it is only the court that stands as a barrier between an immaterial lie and a jail cell.”
State v. Ellis, 723 So. 2d 187, 190 (Fla. 1998) (alteration in original) (quoting State v. Ellis, 722 So. 2d 824, 830 (Fla. Dist. Ct. App. 1997) (Miner, J., dissenting)).
¶40 As the United States Supreme Court has stated, while a trial judge cannot attempt “to override or interfere with the jurors’ independent judgment in a manner contrary to the interests of the accused” by entering a judgment of conviction or directing a verdict in favor of the prosecution, “[s]uch a limitation... has never inhibited [the trial court’s] ruling in favor of a criminal defendant.” United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977). Thus, if evidence of materiality is utterly lacking, or the evidence shows that the alleged false statement is immaterial, then dismissal of the charges can, and should, follow.
¶41 Construing the statute in this fashion preserves its constitutionality; gives, to the greatest extent possible, effect to the legislature’s intent that a court pass on the question of materiality; and is true to Gaudin’s recognition that the same mixed question of law and fact may be considered by the court and the jury, albeit for different purposes. Significantly, there is nothing in RCW 9A.72-.010(1) that says that the question of materiality can never be submitted to the jury, i.e., the statute does not say that only the court may consider materiality. Nor does the statute say that materiality as an element of the crime is to be decided by the court as a matter of law.
¶42 Finally, construing the statute in this way does not run afoul of this court’s decision in State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), as the trial court believed. Hughes held that where the legislature did not provide a procedure for juries to find aggravating factors in sentencing proceedings but instead explicitly provided for judges to find ag*296gravating factors, this court would not imply such a procedure. Id. at 149-50. But in the present case, there is no need to create or imply any procedure. The statute provides that a trial court will assess materiality as a matter of law. Holding that the trial judge must do so as a preliminary matter is consistent with the statute’s language — it does not provide for a new procedure contrary to the statute’s language. And holding that the jury must determine whether the State has proved the element of materiality beyond a reasonable doubt is not establishing any new procedure for juries.10
¶43 The court should construe the statute to mean that materiality is a preliminary question for the trial court. If the trial court finds there is evidence of materiality, then the evidence is admissible and the issue must be submitted to the jury to determine whether the State has proved materiality beyond a reasonable doubt. If there is no evidence of materiality, i.e., there is only evidence showing that the false statement that is allegedly perjurious is immaterial, then the court must dismiss the perjury charge. See Vandivier v. State, 822 N.E.2d 1047, 1052 (Ind. Ct. App. 2005).
¶44 I would hold that RCW 9A.72.010(1) is constitutional. I agree with the majority that remand is necessary but would direct the trial court to make a preliminary determination about the materiality of the allegedly false statement and submit the issue to the jury if there is evidence of materiality.
C. Johnson and Sanders, JJ., concur with Madsen, J.
That there is no dispute that materiality is an element is of critical importance, just as it was in United States v. Gaudin, 515 U.S. 506, 509, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995), where the United States Supreme Court noted that there was no dispute that materiality is an element of the crime of perjury under former 18 U.S.C. § 1001 (1948), the statute at issue. The Court commented in a subsequent case that “we merely assumed in Gaudin that materiality is an element of making a false statement under [former] 18 U.S.C. § 1001.” Johnson v. United States, 520 U.S. 461, 465, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997). In Johnson, the Court contrasted Gaudin with the later case of United States v. Wells, 519 U.S. 482, 117 S. Ct. 921, 137 L. Ed. 2d 107 (1997), where it held that materiality is not an element of making a false statement to a federally insured bank under 18 U.S.C. § 1014. Johnson, 520 U.S. at 465. The important message of Johnson is that a court must look to the specific statute at issue criminalizing the making of false statements and determine whether the legislating body defined the particular offense with materiality as an element.
State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
Cases from the days of early statehood on recognize the basic principle that the jury must find that the evidence sufficiently establishes all of the elements of the crime with which the defendant is charged. See, e.g., State v. Dale, 110 Wash. 181, 187, 188 P. 473 (1920); State v. Knowlton, 11 Wash. 512, 521, 39 P. 966 (1895); McClaine v. Territory, 1 Wash. 345, 353, 25 P. 453 (1890).