Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 16, 2004
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 123145
TIFFANY FREE LIVELY,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
We granted leave to appeal1 to consider whether the
materiality of a false statement is an element of the
statutory offense of perjury, MCL 750.422 and 750.423. The
Court of Appeals held that materiality is an element that
must be submitted to the jury,2 but the plain language of
MCL 750.423 sets forth a definition of perjury that does
not require proof of materiality. Because the Legislature
has decided that materiality is not an element, the trial
1
468 Mich 942 (2003).
2
254 Mich App 249; 656 NW2d 850 (2002).
court did not err in refusing to submit that issue to the
jury. We thus reverse the judgment of the Court of Appeals
and reinstate defendant’s perjury conviction.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
This case arises from an underlying divorce action.
Defendant’s husband sued her for divorce. A default
judgment was entered. Defendant moved to set it aside. At
the hearing on that motion, defendant testified that she
was unaware of the divorce proceeding until after the
judgment had entered and that the complaint for divorce had
never been served on her. She also submitted an affidavit
to that effect in support of her motion. The trial court
set aside the default judgment.
The prosecutor charged defendant with one count of
committing perjury in a court proceeding, MCL 750.422. The
prosecutor alleged that defendant had falsely testified
both that she had not been served with the complaint for
divorce and that she had lacked knowledge of the divorce
proceeding. Defendant moved to dismiss the charge on the
ground that the allegedly false testimony was not material.
The trial court denied the motion and ruled that the
testimony was material.
The case proceeded to trial. The prosecution
presented testimony from the divorce attorney for
2
defendant’s husband, an officer who served the complaint on
defendant, and a caseworker for the friend of the court.
Defendant did not object to the court’s use of a standard
criminal jury instruction, CJI2d 14.1, which, at the time,
did not include materiality as an element for the jury to
consider. Defendant did, however, request an instruction
on specific intent that referred to a false statement on a
material matter. The court denied defendant’s request to
include the phrase “on a material matter” in the
instruction. The jury found defendant guilty.
The Court of Appeals reversed the conviction. It
concluded that the materiality of a false statement is an
element of perjury. The Court noted that in United States
v Gaudin, 515 US 506; 115 S Ct 2310; 132 L Ed 2d 444
(1995), the Supreme Court had concluded that materiality is
an element in a federal prosecution for making false
statements on federal loan documents, and had rejected the
contention that materiality in perjury cases is a
traditional exception to the rule that all the elements of
an offense must be submitted to a jury. The Court of
Appeals rejected case law suggesting that materiality is an
issue for the court, rather than the jury, to decide. See
People v Noble, 152 Mich App 319; 393 NW2d 619 (1986);
People v Hoag, 113 Mich App 789; 318 NW2d 579 (1982).
3
Thus, the Court of Appeals concluded that the trial court
erred in precluding the jury from considering materiality,
and it determined that this error was not harmless beyond a
reasonable doubt.
We granted the prosecution’s application for leave to
appeal.3
II. STANDARD OF REVIEW
This case requires us to determine whether the
materiality of the false statement is an element of the
statutory offense of perjury. We review de novo this
question of law. People v Mendoza, 468 Mich 527, 531; 664
NW2d 685 (2003).
III. ANALYSIS
To provide the proper context for our interpretation
of Michigan’s perjury statute, we must discuss the
constitutional principle set forth in Gaudin, supra. The
Supreme Court explained in Gaudin that every essential
element of an offense, including—where it is an element—
materiality, must be submitted to the jury. Gaudin
involved a federal statutory offense and the government had
3
468 Mich 942 (2003).
4
conceded that materiality was an element.4 Gaudin thus
provides that if materiality is an element of a perjury-
related offense, then it, like all other essential
elements, must be submitted to the jury as a matter of
federal constitutional law.
The holding in Gaudin offers no guidance on the
interpretive question before us, i.e., whether materiality
is an element of perjury under our state perjury statute.
See Gaudin, supra at 525 (Rehnquist, C.J., concurring)
(“Nothing in the Court’s decision stands as a barrier to
legislatures that wish to define—or that have defined—the
elements of their criminal laws in such a way as to remove
issues such as materiality from the jury’s
consideration.”). In other words, Gaudin simply makes
4
The federal statute at issue in Gaudin provides:
Whoever, in any matter within the
jurisdiction of any department or agency of
the United States knowingly and wilfully
falsifies, conceals or covers up by any
trick, scheme, or device a material fact, or
makes any false, fictitious or fraudulent
statements or representations, or makes or
uses any false writing or document knowing
the same to contain any false, fictitious or
fraudulent statement or entry, shall be
fined not more than $ 10,000 or imprisoned
not more than five years, or both. [Gaudin,
supra at 509, quoting 18 USCS 1001 (emphasis
added).]
5
clear that if materiality is an essential element under our
state statute, then it must be submitted to the jury. If,
however, we conclude that materiality is not an element,
then the holding in Gaudin has no bearing on our
determination.
The central question we must resolve, then, is whether
our Legislature has defined the offense of perjury to
include materiality as an element. This Court has
previously indicated that, at common law, materiality was
an element of perjury. See, e.g., People v Fox, 25 Mich
492, 496-497 (1872). Our Legislature, however, has
constitutional authority to change the common law. Const
1963, art 3, § 7; Donajkowski v Alpena Power Co, 460 Mich
243, 256; 596 NW2d 574 (1999). It appears that this Court
has never expressly decided whether MCL 750.423 or its
predecessors altered the common-law definition of perjury.
To discern the meaning of our perjury statute, we
apply the interpretive principles recently set forth in
Mendoza, supra:
Relying on established doctrines of
interpretation, one cannot disagree that the
first step in discerning legislative intent
requires review of the statutory text adopted by
the Legislature. House Speaker v State
Administrative Bd, 441 Mich 547, 567; 495 NW2d
539 (1993). See also MCL 8.3a (“All words and
phrases shall be construed and understood
according to the common and approved usage of the
6
language . . . .”). If unambiguous, the
Legislature will be presumed to have intended the
meaning expressed. Lorencz v Ford Motor Co, 439
Mich 370, 376; 483 NW2d 844 (1992). [Mendoza,
supra at 550 (Cavanagh, J., concurring in
result).]
MCL 750.423 provides:
Any person authorized by any statute of this
state to take an oath, or any person of whom an
oath shall be required by law, who shall wilfully
swear falsely, in regard to any matter or thing,
respecting which such oath is authorized or
required, shall be guilty of perjury, a felony,
punishable by imprisonment in the state prison
not more than 15 years. [Emphasis added.]
Our Legislature has thus defined perjury as a
willfully false statement regarding any matter or thing, if
an oath is authorized or required. Noticeably absent from
this definition is any reference to materiality. The
Legislature could easily have used a phrase such as “in
regard to any material matter or thing,” or “in regard to
any matter or thing material to the issue or cause before
the court,” but the Legislature did not use such language.
The phrase “any matter or thing” is a broad one. The
commonly understood word “any” generally casts a wide net
and encompasses a wide range of things. “Any” has been
defined as:
1. one, a, an, or some; one or more without
specification or identification. 2. whatever or
whichever it may be. 3. in whatever quantity or
number, great or small; some. 4. every; all . .
7
. . [Random House Webster’s College Dictionary
(2d ed, 1997).]
Thus, it is reasonable to conclude that the Legislature
intended for perjury to consist of a willfully false
statement concerning every matter or thing for which an
oath is authorized or required, because it did not limit
the matters or things in question on the basis of their
materiality.
Reinforcing our conclusion that the Legislature’s
failure to include a materiality requirement in MCL 750.423
is dispositive is the fact that several perjury-related
statutes not at issue here do require that the false matter
or statement be material. See MCL 28.422a, 32.1131,
168.729, 257.254, 324.5531(2), 380.1003, 500.2014,
500.4509, 600.8813, 764.1e(2), and 765.25.5 These statutes
demonstrate that the Legislature knows how to make
materiality an element of a perjury-related offense. Thus,
the failure to make materiality a requirement in the
perjury statutes at issue here must be given meaning.
In light of the broad scope of the statutory phrase
“any matter or thing,” we conclude that the Legislature
5
We also note that the federal perjury statute
expressly requires that the false statement be material.
See 18 USC 1623.
8
intended that a willfully false statement about any matter
or thing concerning which an oath was authorized or
required falls within the statutory definition of perjury
and thus may be charged as perjury if a prosecutor so
chooses.6
We note that many prior decisions of this Court have
not analyzed the statutory language or adequately
differentiated the statutory offense from its common-law
6
The dissent opines that our decision will allow a
prosecutor “unfettered discretion to charge a party or
witness with perjury for any discrepancy made under oath,
no matter how trivial.” Post at 1. In responding to this
argument, we find it useful to quote our response to a
similar argument by the dissent in People v Chavis, 468
Mich 84, 94, n 6; 658 NW2d 469 (2003):
The dissent also criticizes our opinion as
allowing the prosecutor “unfettered discretion,”
post at 99, in determining when to bring charges
under the statute. It is invariably the case
that the prosecutor always has great discretion
in deciding whether to file charges. Such
executive branch power is an established part of
our constitutional structure. Any apprehension
that the prosecutor may abuse this power should
be tempered, in part, by the knowledge that there
are significant systemic protections afforded
defendants, including the defendant’s right to a
preliminary examination and right to a jury
trial. Moreover, there are other protections
against the misuse of power that spring from
daily scrutiny by the media as well as from
periodic elections, which call all office holders
to account to their constituents.
9
counterpart.7 See, e.g., People v Collier, 1 Mich 137, 138
(1848); Hoch v People, 3 Mich 552, 554 (1855); Flint v
People, 35 Mich 491 (1877); Beecher v Anderson, 45 Mich
543, 552; 8 NW 539 (1881); People v McCaffrey, 75 Mich 115,
123-124; 42 NW 681 (1889) (quoting the predecessor to MCL
750.423, yet still assuming that materiality is required);
People v Almashy, 229 Mich 227, 230; 201 NW 231 (1924);
People v Kert, 304 Mich 148; 7 NW2d 251 (1943). These
cases are overruled to the extent that they are
inconsistent with our opinion today.8
7
The dissent is therefore quite right to observe that
for well over a century and a half Michigan courts have
assumed that materiality is an element of perjury. This
long history might be a reason to apply stare decisis and
acquiesce in the judiciary’s redefinition of perjury, if
not for the fact that we are compelled by Gaudin to revisit
our perjury jurisprudence. As noted, Gaudin holds that
materiality, like any element of a crime, must be submitted
to and decided by the jury. Therefore, despite our
precedent to the contrary, we are constitutionally
compelled to reject the dissent’s assertion that
“materiality is a question of law for the trial court to
determine . . . .” Post at 4. Once we jettison one
fundamental tenet of our 150-year jurisprudence on perjury,
we have no reason to shy away from the other question posed
by this appeal—whether materiality is truly an element of
perjury as defined by our Legislature.
8
The Court of Appeals has treated materiality as an
element, but has also construed prior decisions of this
Court to require that this element be decided by the trial
court rather than a jury. See People v Hoag, supra; People
v Jeske, 128 Mich App 596; 341 NW2d 778 (1983); People v
Noble, supra. Obviously, the holdings in those cases are
Footnotes continued on following page.
10
Although the prior case law in this area has not been
a model of clarity, the statutory definition of perjury is
clear. We are bound to follow the Legislature’s directive
that materiality is not an element of this offense. Our
Legislature is responsible for defining the elements of
criminal offenses, and we therefore adhere to those
definitions.9
Chief Justice Rehnquist’s concurring opinion in Gaudin
expressly recognized that legislatures are free to define
“the elements of their criminal laws in such a way as to
remove issues such as materiality from the jury’s
consideration.” Gaudin, supra at 525. That is precisely
inconsistent with Gaudin, which requires that a jury decide
essential elements of an offense. We make clear that these
cases should no longer be followed.
9
The dissent’s analysis of stare decisis is incomplete
because it fails to consider reliance interests. In
Robinson v Detroit, 462 Mich 439, 466; 613 NW2d 307 (2000),
we explained that this Court “must ask whether the previous
decision has become so embedded, so accepted, so
fundamental, to everyone’s expectations that to change it
would produce not just readjustments, but practical real-
world dislocations.” Here, the dissent fails to explain
how our overruling of earlier case law that (1) improperly
read an element into a perjury statute and (2) required the
court rather than the jury to decide that element, will
produce any real-world dislocations.
11
what our Legislature has done. We must respect that
legislative choice and apply the plain statutory language.10
10
While it is not necessary to our decision, we note
that other state legislatures have made a similar choice to
alter the common law by eliminating the element of
materiality from their perjury statutes. For example, in
Beckley v State, 443 P2d 51 (Alas, 1968), the Alaska
Supreme Court construed a statute similar to our own and
concluded that it did not require proof of materiality.
The Alaska statute provided: “‘A person authorized by law
to take an oath or affirmation, or a person whose oath or
affirmation is required by law, who willfully and falsely
swears or affirms in regard to a matter concerning which an
oath or affirmation is authorized or required, is guilty of
perjury.’” Id. at 54. The Alaska Supreme Court concluded:
The statute is unambiguous. It clearly
indicates the intent of a legislative body to
enlarge the scope of the crime of perjury as it
existed at common law so as to make it a crime
for one to willfully and falsely swear in regard
to any matter in respect to which an oath is
authorized or required, regardless of the
question of materiality of such matter to an
issue before the court.
Materiality is not mentioned in the Alaska
perjury statute; therefore it is unnecessary, in
order to prove the crime of perjury, to establish
that the matter concerning which willfully false
testimony under oath was given was material to an
issue before the court. The crime is complete if
one shall willfully swear falsely in regard to
any matter respecting which an oath is authorized
or required. [Id. at 54-55.]
The court further noted that the Rhode Island Supreme Court
had reached the same conclusion regarding a similarly
worded statute in that state. See State v Miller, 26 RI
282; 58 A 882 (1904).
We find the Alaska Supreme Court’s reasoning
persuasive. Like the Alaska law, our statute unambiguously
Footnotes continued on following page.
12
The dissent would follow earlier decisions of this
Court treating materiality as an issue to be decided by the
trial court, rather than the jury. The dissent’s position,
however, is inconsistent with the United States Supreme
Court’s decision in Gaudin. As a matter of federal
constitutional law, all essential elements of an offense
must be submitted to a jury. We are no longer free, in
light of Gaudin, to follow earlier case law treating
materiality as an element for the trial court to decide as
a matter of law. We must conclude either that materiality
is an element that must be submitted to the jury, or that
it is not an element at all.11 As discussed above, we have
defines perjury to exclude the common-law element of
materiality.
11
The dissent purports to follow Gaudin by insisting
that materiality is not really an element, but simply a
question of law to be decided by the trial court. But if,
as the dissent contends, a defendant may not legally be
convicted of perjury without proof of materiality, then
materiality would, by definition, be an essential element
of the offense. See Black’s Law Dictionary (7th Ed)
(defining “elements of crime” as “[t]he constituent parts
of a crime . . . that the prosecution must prove to sustain
a conviction”).
The dissent cannot have it both ways. Either
materiality is an essential element that must be submitted
to the jury under the federal constitution or it is not an
element at all. The dissent would essentially create out
of whole cloth a special “sub-element” category that is
immune from the strictures of the federal constitution. In
light of Gaudin, this Court’s obligation under the federal
Footnotes continued on following page.
13
read the statutory language as it is clearly written. The
statutory text simply does not require proof that the false
statement was material.
IV. CONCLUSION
The plain language of our perjury statute alters the
common law and does not require proof of materiality. We
thus reverse the judgment of the Court of Appeals and
reinstate defendant’s perjury conviction.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
constitution is to require all essential elements of an
offense to be submitted to a jury. We adhere to that duty
and conclude that materiality simply is not an element
under the language of our perjury statute.
14
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 123145
TIFFANY FREE LIVELY,
Defendant-Appellee.
_______________________________
MARKMAN, J. (concurring).
I concur with the majority and would reverse the
judgment of the Court of Appeals and reinstate defendant's
perjury conviction, but I would do so for different
reasons. Further, I agree with the thoughtful analysis of
the majority concluding that the plain language of the
perjury statutes, MCL 750.422 and 750.423, clearly does not
require as an element of perjury that a false statement be
material. Indeed, it does not appear that the dissent
itself disagrees with this conclusion.1 Finally, I agree
1
Although the dissent observes that it "disagree[s]
with the majority’s assertion that in all prior cases
dealing with perjury, our courts did not properly analyze
the statutory language," post at 3, the dissent neither
invokes any particular past statutory analysis in support
of this observation, nor sets forth any contrary statutory
analysis of its own. The dissent's argument is predicated
Footnotes continued on following page.
with the majority that United States v Gaudin, 515 US 506,
510; 115 S Ct 2310; 132 L Ed 2d 444 (1995), requires that
the issue of materiality, if it is indeed an element of
perjury, must be submitted to the jury for its
determination.
I write separately because, in my judgment, it is
unnecessary to address the most difficult question in this
case—whether, under the standards of Robinson v Detroit,
462 Mich 439, 466; 613 NW2d 307 (2000), longstanding
precedents in Michigan, holding that the materiality of a
false statement constitutes an element under MCL 750.422
and 750.423, should be overruled. As the dissent correctly
observes, post at 4, and the majority does not dispute,
ante at 9 n 7, it has been the law of Michigan for more
than 150 years that materiality constitutes an element of
perjury. It is unnecessary to address the application of
Robinson to the instant question because defendant's
statement here was clearly "materially" false. Therefore,
whether Michigan's prior case law is maintained or not,
defendant here was properly convicted of perjury.
exclusively upon the authority of precedent. While I do
not find the dissent unreasonable and, indeed, do not
reject its principal argument, there is nonetheless nothing
in the dissent that purports to repudiate the majority's
thorough statutory analysis.
2
Defendant's false statement was made in support of her
motion to set aside a default judgment, and pertained to
whether she was aware that a divorce action had been filed
and whether she had been served with the complaint. In
granting her motion, the trial court stated that with the
divorce "only ten days old," and with "[s]ome question" in
his mind regarding defendant's lack of notice, it seemed
desirable to set aside the default. The trial judge
remarked, "Listening to it all, it sounds to me like the
mother ought to have known there was a divorce going on,
but I'm not convinced. So at any rate, we'll set it
aside." I agree with the prosecutor that the gist of these
remarks was that the trial judge was unsure whether
defendant was lying, but that he chose to give her the
benefit of the doubt and vacate the default. Contrary to
the Court of Appeals, I do not believe that the trial judge
was asserting that defendant's false statements were
immaterial to his decision on her motion. However, even if
the Court of Appeals is correct in its estimation of the
judge's remarks, the test for materiality is not whether
false testimony actually affected the outcome of court
proceedings, but merely whether it could have affected such
proceedings. People v Kozyra, 219 Mich App 422, 432; 556
3
NW2d 512 (1996); People v Jeske, 128 Mich App 596, 603; 341
NW2d 778 (1983).
In the context of a motion to set aside a default
judgment—a proceeding in which matters of actual notice and
service will often prove determinative, see MCR 2.603(D)—
statements pertaining to whether notice has been served or
received will almost always carry with them the potential
to influence the court. Because such statements will
typically go to the heart of the rationale for default
placed in question by a motion to set aside a judgment, it
will almost always be true that such statements could have
affected the proceedings. Therefore, they will almost
always constitute "material" statements and, where false,
will almost always constitute "materially" false
statements. In the instant case, defendant's statements
carried with them the potential to influence the outcome of
her motion to set aside the default judgment, and the trial
court’s statement that “I’m not convinced” that defendant
is lying, “so . . . we’ll set it aside,” indicates that her
statements, in fact, did influence the outcome.
Thus, even if "materiality" is an element of perjury,
and even if the trial court's failure to send this issue to
the jury constituted error, Gaudin, supra at 510, the error
was harmless under the present circumstances because no
4
reasonable juror could have concluded that defendant's
false statements in their context were not "materially"
false.2 For the reasons set forth, I respectfully disagree
with the Court of Appeals that a contrary result could have
obtained on the part of a reasonable juror. Thus, I
conclude that the prosecutor has shown beyond a reasonable
doubt that the trial court's failure to instruct the jury
on materiality was, at most, harmless error.
I concur with the majority in reinstating defendant's
conviction, but I would avoid reaching the question whether
longstanding Michigan precedents concerning the meaning of
MCL 750.422 and 750.423 should now be reversed.3
Stephen J. Markman
2
Viewing the error here—one depriving the jury of an
instruction concerning an element of the crime—as of
constitutional dimension, see People v Duncan, 462 Mich 47,
51; 610 NW2d 551 (2000), and assuming arguendo that this
question was preserved, I agree with the Court of Appeals
that this error does not constitute a structural defect
incompatible with harmless error analysis, People v
Carines, 460 Mich 750, 765 n 11; 597 NW2d 130 (1999), but
is subject instead to the preserved constitutional error
standard of People v Anderson (After Remand), 446 Mich 392;
521 NW2d 538 (1994). Under this standard, the burden is
upon the prosecutor to demonstrate beyond a reasonable
doubt that the error is harmless.
3
The Legislature, of course, might well choose the
occasion of this opinion to make clear its present
intentions on "materiality" as an element of Michigan's
perjury statutes.
5
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 123145
TIFFANY FREE LIVELY,
Defendant-Appellee.
_______________________________
CAVANAGH, J. (concurring in part and dissenting in part).
Today, the majority determines that MCL 750.423, which
sets forth the definition of perjury, does not require
proof of materiality. The majority’s decision allows a
prosecutor unfettered discretion to charge a party or
witness with perjury for any discrepancy made under oath,
no matter how trivial. While I concur with the majority
that materiality is not an element for the jury to decide,
I believe that the issue of materiality is a question of
law, which is a threshold requirement for the trial court
to determine. Therefore, I respectfully dissent.
A person accused of perjury in a court proceeding is
charged under MCL 750.422. MCL 750.422 states the
following:
Any person who, being lawfully required to
depose the truth in any proceeding in a court of
justice, shall commit perjury shall be guilty of
a felony, punishable, if such perjury was
committed on the trial of an indictment for a
capital crime, by imprisonment in the state
prison for life, or any term of years, and if
committed in any other case, by imprisonment in
the state prison for not more than 15 years.
MCL 750.423 defines perjury and became effective on
September 18, 1931. MCL 750.423 states the following:
Any person authorized by any statute of this
state to take an oath, or any person of whom an
oath shall be required by law, who shall wilfully
swear falsely, in regard to any matter or thing,
respecting which such oath is authorized or
required, shall be guilty of perjury, a felony,
punishable by imprisonment in the state prison
not more than 15 years.
From May 18, 1846, to the time MCL 750.423 was enacted
in 1931, perjury was defined as follows:
If any person authorized by any statute of
this state to take an oath, or if any person of
whom an oath shall be required by law, shall
willfully swear falsely, in regard to any matter
or thing, respecting which such oath is
authorized or required, such person shall be
deemed guilty of perjury . . . . [RS 1846, ch
156, § 2.]
Since 1846, our Legislature has defined perjury as
falsely swearing “to any matter or thing.” Also since that
time, this Court has repeatedly held that alleged perjured
statements must have been material to an issue or cause in
the prior proceeding.
In People v Almashy, 229 Mich 227, 230; 201 NW 231
(1924), this Court stated, “It is fundamental that both the
2
oath and the facts sworn to must be material in order to
justify conviction of perjury.” In People v Kert, 304 Mich
148, 154-155; 7 NW2d 251 (1943), this Court stated, “While
perjury . . . is defined as a wilful false swearing in
regard to any matter or in respect to which such oath is
authorized or required, it is always necessary to show that
the perjury was in regard to a material fact.” Numerous
other cases have also stated that claims of perjury must
allege materiality. See People v Cash, 388 Mich 153, 159;
200 NW2d 83 (1972); People v Vogt, 156 Mich 594, 595; 121
NW 293 (1909); People v Ostrander, 110 Mich 60, 61; 67 NW
1079 (1896); People v McCaffrey, 75 Mich 115, 120, 124,
126; 42 NW 681 (1889); Flint v The People, 35 Mich 491, 493
(1877); People v Fox, 25 Mich 492, 496 (1872) (majority
opinion by Cooley, J.); People v Gaige, 26 Mich 30, 33
(1872); People v Collier, 1 Mich 137, 138 (1848) (“It is a
well-settled rule, that it must appear on the face of the
indictment that the false allegation was material to the
matter in question; for if it be of no importance, though
false, it will not be perjury . . . .”); see also Model
Penal Code, § 241.1; ULA Penal Code 241.1.
I disagree with the majority’s assertion that in all
prior cases dealing with perjury, our courts did not
properly analyze the statutory language. Even Chief
3
Justice Corrigan, the author of the majority opinion in
this case, wrote an opinion when she was at the Court of
Appeals stating that materiality is an essential element of
statutory perjury. People v Kozyra, 219 Mich App 422, 428-
429, 432; 556 NW2d 512 (1996). In Kozyra, supra at 432,
the Court of Appeals stated, “One of the essential elements
of perjury is that the issue or cause to which the
defendant swears is material. . . . For purposes of a
perjury prosecution, a statement is material if it could
have affected the course or outcome of the proceeding.”1
The idea that materiality is a question of law for the
trial court to determine is not a novel one. For over 150
years, this Court has recognized this proposition. Today,
the current majority states that for over a century and a
half, justices who have come before them have been wrong.
I do not agree with such a notion.2
1
While I disagree that materiality is an element of
perjury for the jury to determine, the necessity that the
allegedly perjured statement be material to the proceedings
has been consistently held in our jurisprudence.
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I also do not agree that this issue is controlled by
federal constitutional law. I agree with the majority that
all essential elements of an offense must be submitted to a
jury, as stated in United States v Gaudin, 515 US 506, 523;
115 S Ct 2310; 132 L Ed 2d 444 (1995); however, I believe
that the issue of materiality is not an element. Rather,
consistently with our past jurisprudence, materiality is a
Footnotes continued on following page.
4
“The application of stare decisis is generally the
preferred course because it promotes the evenhanded,
predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the
judicial process.” People v Petit, 466 Mich 624, 633; 648
NW2d 193 (2002) (citations and internal quotation marks
omitted). Even if this Court determines an error was made,
“‘[b]efore this court overrules a decision deliberately
made, it should be convinced not merely that the case was
wrongly decided, but also that less injury will result from
overruling than from following it.’” Id. at 634, quoting
McEvoy v Sault Ste Marie, 136 Mich 172, 178; 98 NW 1006
(1904). Even if past Courts erred, I find it hard to
fathom that the majority believes that less injury will
result to our citizens when they can be charged with
perjury over immaterial discrepancies.
The majority states that I have not considered
reliance interests and have not explained how overruling
earlier case law “will produce any real-world
dislocations.” Ante at 11 n 9. I note that there are
likely no superficial reliance interests to consider when a
question of law. As such, it is well within the purview of
the courts to determine.
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case involves a matter of criminal justice. How unlikely
it would be for this Court to decide not to overrule a past
case because criminals have been relying on it to further
their criminal conduct. Notably, the majority’s argument
can be made any time a case involves a matter of criminal
justice. However, I do not believe that, merely because a
case involves a criminal matter, the edicts of stare
decisis are discarded. This Court’s 150-year history of
recognizing that materiality is a question of law and our
citizens’ reliance on this Court’s consistent application
of the law must not be discarded merely because of a
perceived lack of reliance interests.
Further, the majority quotes from People v Chavis, 468
Mich 84, 94 n 6; 658 NW2d 469 (2003), and states that
prosecutors have always had great discretion in whether to
file charges. The majority also notes, “'Any apprehension
that the prosecutor may abuse this power should be
tempered, in part, by the knowledge that there are
significant systemic protections afforded defendants,
including the defendant’s right to a preliminary
examination and right to a jury trial.'” Ante at 9 n 6,
quoting id. However, by eliminating any determination of
materiality by the court, a preliminary examination and
jury trial will offer little protection to those charged
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for trivial matters. The majority certainly does not mean
to advocate jury nullification, yet that is what it is
doing when it mentions the protections of a jury trial.
While the prosecutor must prove his case beyond a
reasonable doubt, the problem is in the nature of the
charge. The perjury charge may be related to an
inconsequential discrepancy, yet if it is proven beyond a
reasonable doubt, the jury has no choice but to convict.
Finally, while the majority is comforted by the
prosecutor’s daily scrutiny by the media and periodic
elections, I am certain this provides little comfort to the
witness, undoubtedly a witness who testified in a manner
that was contrary to that sought by the prosecutor, who
sits in prison.
Accordingly, I concur with the majority that
materiality is not an element of perjury for the jury to
determine. However, I would hold, consistently with this
Court’s decisions for over 150 years, that the issue of
materiality in a perjury prosecution is a question of law
for the trial court to determine. Therefore, I
respectfully dissent.
Michael F. Cavanagh
Marilyn Kelly
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