concurring:
I agree with the majority’s conclusion that the trial court erred in granting the motion of the defendant, Lloyd Davis, to dismiss the perjury indictments that had been returned against him. However, I write separately to express my belief that the decision in People v. Mason (1978), 60 Ill. App. 3d 463, upon which the trial and appellate courts relied, was misguided and wrong with respect to its determination of what constitutes materiality under our perjury statute. I also write separately to express my belief that People v. Mason should be expressly overruled by this court in this case.
The Illinois perjury statute states in pertinent part:
"Perjury, (a) A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true.” (720 ILCS 5/32 — 2 (West 1992).)
Materiality is an essential element of the crime of perjury. In Mason, the court held that a false statement made in an evidence deposition was not "material” under our perjury statute, because the deposition was never used at trial. Contrary to the Mason court’s analysis, however, materiality does not depend upon whether the false statement is used at trial: materiality is determined at the time of the making of the false statement, and a statement may be perjurious even where it is not later introduced or used at trial. (See United States v. Noveck (1927), 273 U.S. 202, 206, 71 L. Ed. 610, 612, 47 S. Ct. 341, 342; Mackin v. Illinois (1885), 115 Ill. 312, 323.) An interpretation of "materiality” which recognizes that a statement may be perjurious, even though not submitted to or relied upon by a trier of fact or used at trial, is consistent with past precedent of this court and has been adopted by Federal and State courts.
Background
In September 1991, defendant, Reverend Lloyd R. Davis, was indicted in the circuit court of Lake County for the offenses of criminal sexual assault, aggravated criminal sexual abuse, child pornography, and perjury. Several months after the indictments were issued, Davis filed a motion to dismiss the perjury indictments (725 ILCS 5/114 — 1(a)(8) (West 1992)), arguing that the indictments did not state offenses under the Illinois perjury statute (720 ILCS 5/32 — 2 (West 1992)).
The perjury indictments alleged that Davis had given eight false answers in a discovery deposition that was taken as part of a civil suit that Davis had instituted in the circuit court of Lake County (Davis v. Keystone Printing Service, Inc., et al. (Cir. Ct. Lake Co.), No. 87— L — 1347). In this civil suit, Davis claimed that he had been libeled by a series of articles written by reporter Adrienne Drell and published by Keystone Printing in an area newspaper. The articles allegedly accused Davis of having engaged in certain homosexual activities with members of his congregation. In his discovery deposition, Davis denied such activities. His denials formed the basis of the perjury charges later filed against him.
In support of his motion to dismiss the perjury indictments, Davis offered the testimony of Judge Stephen Walter of the circuit court of Lake County. Judge Walter stated that Davis’ civil suit against Keystone Publishing and Drell had been assigned to him in 1988 and remained on his call until it was dismissed in November of 1991 and that he had been aware that there was at least one discovery deposition given by Davis while he was presiding over the case. The deposition was brought to Judge Walter’s attention when Drell filed a petition for sanctions under Rule 137 (134 Ill. 2d R. 137) asking for an award of fees for having to defend the action. The sanctions petition asserted, in essence, that Davis lacked good faith in pursuing the case when he knew that the allegations made in the newspaper report were true. However, Judge Walter struck the petition for lack of specificity with respect to the basis for the amount of fees requested, and Drell did not refile the petition. Judge Walter never ruled on the merits of the petition, and testified that he did not rely on Davis’ discovery deposition in dismissing the petition for sanctions. The judge explained that the matters he ruled on consisted largely of discovery-related motions and motions in limine involving evidentiary issues.
The trial court allowed Davis’ motion to dismiss the perjury indictments, believing that the dismissal was mandated by the holding in People v. Mason (1978), 60 Ill. App. 3d 463. The trial court judge stated that he was "astound[ed]” that Mason was the law in this State. Based upon Mason, the trial court felt constrained to dismiss the perjury indictment against the defendant and later denied the State’s motion to reconsider its dismissal of the perjury indictment against the defendant.
The appellate court upheld the trial court’s dismissal of the perjury indictments, relying upon the analysis in Mason to conclude that the discovery deposition was not material, because it had not been relied upon by Judge Walter in any of his rulings before the civil suit was dismissed. The State appealed.
Analysis
The focal point of Davis’ argument in this appeal is the decision in People v. Mason (1978), 60 Ill. App. 3d 463. In that case, the defendant gave an evidence deposition that was important to the State’s case in a separate criminal proceeding. Although the defendant was summoned to appear at the trial, and was ready to testify, he was not called as a witness and his deposition was never introduced at the criminal proceeding. The State later attempted to prosecute the defendant for allegedly false statements in his deposition. He was convicted of perjury and appealed.
The appellate court in Mason reversed the defendant’s perjury conviction. The court held that, because the deposition was never used at the criminal proceeding, the defendant’s false statements were not "material” to the proceeding. In so ruling, the appellate court in Mason reviewed Illinois case law on the meaning of the term "material.” The court noted the general rule that the current test of materiality is whether the "false testimony has a natural tendency to influence the trier of fact.” (Mason, 60 Ill. App. 3d at 466.) The court also noted that the "purpose of the perjury statute is, in part, to insure the validity of the fact-seeking process.” (Mason, 60 Ill. App. 3d at 466.) The court concluded that since the deposition was not used at trial, the defendant’s statements in his deposition were not "material,” because they had not influenced the trier of fact in the criminal proceeding.
The court in Mason held that "Illinois courts have required not only a filing, but, as we believe, use of the sworn statement before a trier [of fact].” (Emphasis in original.) (Mason, 60 Ill. App. 3d at 468.) In my opinion, the ruling in Mason denigrates the purpose and sanctity of the oath, thwarts the discovery process and is an affront to an orderly system of justice.
Contrary to the ruling in Mason, the pertinent inquiry is not whether the fact finder was actually affected by the perjurious statements, but whether the statements could have influenced the finder of fact. Materiality is derived from the relationship between the proposition of the allegedly false statement and the issues in the case. (People v. Harris (1968), 102 Ill. App. 2d 335, 337.) Thus, the test of materiality for an allegedly perjured statement is whether the statement tends to prove or disprove an issue in the case. (See Mackin v. People (1885), 115 Ill. 312, 323; People v. Toner (1977), 55 Ill. App. 3d 688, 693; People v. Beacham (1977), 50 Ill. App. 3d 695, 700-01; King, Perjury in Illinois, 17 Ill. L. Rev. 596, 602 (1923).) A statement is deemed material when it did influence, or could have influenced, the finder of fact. (People v. Briddle (1980), 84 Ill. App. 3d 523, 527.) The Mason court erroneously focused exclusively on whether the challenged statements did actually influence the fact finder, and failed to consider whether the statements could have influenced a finder of fact.
Decisions from other jurisdictions have held that the materiality of a false statement is to be determined at the time the statement was made, and that the pertinent inquiry is not whether the statement did in fact influence the trier of fact, but whether it could have influenced the trier of fact. (70 C.J.S. Perjury § 13, at 262 (1987) (citing Wattenmaker v. United States (1929), 34 F.2d 741, Wright v. State (1941), 241 Ala. 529, 3 So. 2d 326, State v. Fail (1926), 121 Kan. 855, 250 P. 311, and Commonwealth v. Lafferty (1980), 276 Pa. Super. 400, 419 A.2d 518); see also Model Penal Code § 241.1(2), 10 U.L.A. 574 (1962) ("Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding” (emphasis added)).) As one source has stated:
"The test of the materiality of a statement, as an essential element of perjury under federal or state law, is whether the false statement would or could influence a tribunal or jury on the issue before it. Alternatively stated, the test is not whether the false testimony did in fact influence a pertinent determination, but whether, viewed objectively, it directly or circumstantially had a reasonable and natural tendency to do so.” (60A Am. Jur. 2d Perjury § 32, at 1088 (1988).)
"The materiality of false statements is to be determined with reference to the circumstances existing at the time the statements were made, without regard to subsequent events.” 60A Am. Jur. 2d Perjury § 33, at 1090 (1988).
Thus, the crime of perjury is complete when the oath is taken and the false statement is made with the necessary intent. (United States v. Norris (1937), 300 U.S. 564, 574, 81 L. Ed. 808, 813, 57 S. Ct. 535, 539; United States v. Noveck (1927), 273 U.S. 202, 206, 71 L. Ed. 610, 612, 47 S. Ct. 341, 342.) With respect to allegedly false statements in an affidavit, the prevailing view is that "the offense [of perjury] is complete the moment the accused has signed and sworn to the false instrument with such intent, and it is immaterial that the affidavit is never used for the purpose intended or that it is not sufficient for such purpose.” (60A Am. Jur. 2d Perjury § 45, at 1097 (1988).) The United States Supreme Court in United States v. Noveck (1927), 273 U.S. 202, 206, 71 L. Ed. 610, 612, 47 S. Ct. 341, 342, stated that "[t]he crime of perjury is complete when the oath is taken with the necessary intent, although the false affidavit is never used. [Citations.]”
In the case at bar, the libel action brought by Davis hinged on the truth or falsity of the newspaper articles. Thus, the "issue or point in question” at the time Davis made the purportedly false statement under oath was whether or not Davis engaged in the sexual conduct alleged in the articles. Davis’ denials of such conduct were made during the course of discovery with respect to his libel suit and were clearly material to the overriding issue in that litigation, i.e., whether Davis had, in fact, engaged in the conduct which Drell and Keystone Printing had attributed to him. The materiality of Davis’ allegedly perjured statements in his discovery deposition is readily apparent from the record. When Judge Walter gave his testimony before the circuit court, Judge Walter acknowledged that Davis’ denials of homosexual activity were material to the issues raised by the pleadings in the libel suit, "to the extent that a primary issue in the complaint was the accuracy of a report that [defendant] had been involved in homosexual activity.”
Davis’ allegedly perjured statements in his deposition sought to justify his libel suit by refuting the veracity of the reports published by Drell and Keystone Press. Moreover, Davis’ allegedly perjured statements were the basis for the petition for sanctions filed by Drell. Settlement of the libel suit may have been prompted by Davis’ allegedly perjured statements in his deposition testimony. In light of these circumstances, Davis’ allegedly perjured statements in his deposition were "material” to the libel suit, since the statements were critical to the proceedings and could have influenced the trier of fact if the case had gone to trial.
The oath is a crucial legal tool to insure that deponents and witnesses tell the truth. However, Davis’ position, as well as the holding in Mason, devalue the significance of the oath and fundamentally undermine the entire truth-seeking process of our justice system. As this court has recognized, "[t]he law attaches superior effect to statements made under oath, and the [perjury] statute is designed to insure that all such statements merit the trustworthiness which the law assigns to them.” (Loraitis v. Kukulka (1953), 1 Ill. 2d 533, 538.) "Our whole judicial system rests upon the assumption that sworn witnesses tell the truth.” (King, Perjury in Illinois, 17 Ill. L. Rev. 596, 601 (1923).) A person "who wilfully lies under oath should not escape punishment,” simply because the false statement is never actually submitted to a trier of fact. King, Perjury in Illinois, 17 Ill. L. Rev. 596, 601 (1923).
Thus, I concur in the reversal of the appellate and trial court decisions. However, I find it desirable and necessary to express my view that the holding in Mason, that Illinois courts require the "filing” or "use” of an allegedly perjured statement before a trier of fact in order to conclude that the statement was material, should be overruled. A statement made under oath is material if it could have influenced the trier of fact with respect to an issue in the case. Under this rule, which is followed by the Federal courts and a majority of other jurisdictions, Davis’ allegedly perjured statements in his deposition were "material” to his libel suit. I agree thát the circuit court should have denied Davis’ motion to dismiss the perjury indictments.
JUSTICE FREEMAN joins in this concurrence.