dissenting:
I would affirm, as a matter of public policy, the trial court’s dismissal of the perjury counts against the defendant.
The instant prosecution arises from allegedly false answers that the defendant gave in a discovery deposition in June 1990. That deposition was given in a civil libel action that the defendant brought against Keystone Printing Service, d/b/a The News Sun, and a reporter for that paper. In the civil suit, the defendant claimed that he was libeled in a series of newspaper articles published in The News Sun. Ultimately, the libel action was dismissed by the parties pursuant to a settlement agreement in which the newspaper agreed to pay a sum of $50,000 to the defendant.
We infer from facts stated in the record that the instant perjury prosecution began shortly after the litigants settled the civil libel suit. Under the particular circumstances of this case, it appears that the perjury prosecution was brought at the behest of a litigant who was discontented with the outcome of litigation that he chose to settle. The allegedly false statements that underlie the instant perjury indictments were made in a discovery deposition, not an evidence deposition, and thus would not have been admissible at trial in the libel action. The trial judge who presided over the civil suit testified that he was not aware of any particular answers given in discovery depositions while he presided over the libel action. The trial judge also acknowledged that he did not rule on any substantive matters raised in the civil action, since the case was dismissed pursuant to a settlement agreement between the parties. The trial judge specifically confirmed that he could not have relied on the allegedly perjurious answers made in the discovery deposition in ruling on the libel action, since he was not aware at the time that such answers had been given.
Under the circumstances, one cannot help but wonder how the prosecuting attorney became aware of the allegedly perjurious statements that underlie the instant indictments. Even assuming that the prosecutor searched through all of the discovery depositions taken in all of the closed civil cases filed in Lake County, it is doubtful whether he could have found the statements which underlie the instant perjury prosecution, since it appears that the disputed deposition was never filed in the trial court. The unique facts of this case suggest that a civil litigant, dissatisfied with the outcome of litigation, informed the prosecuting attorney of an opponent’s allegedly false deposition statements and demanded the instant perjury prosecution.
To avoid a plethora of such criminal prosecutions, our courts have wisely and consistently required not only the filing, but also use of a sworn statement by a decisionmaker — whether a judge, grand jury, jury or other tribunal — before that statement will be regarded as "material” within the meaning of the perjury statute. (See, e.g., People v. Mason (1978), 60 Ill. App. 3d 463; People v. Briddle (1980), 84 Ill. App. 3d 523; People v. Cantrell (1979), 79 Ill. App. 3d 626.) The majority sets a dangerous precedent when it expands the definition of "materiality” to permit the instant prosecution to go forward. In the future, disgruntled litigants who are dissatisfied with the outcome of particular litigation will search interrogatories and depositions in closed cases for possibly perjurious statements, and then rush to the State’s Attorney’s office to demand perjury prosecutions against opposing parties and hostile witnesses. As a matter of public policy, I conclude that the valuable prosecutorial resources and court time should not be wasted in prolonging a dispute that formed the basis of a civil action which was closed pursuant to a settlement agreement between the parties. Accordingly, I dissent from the majority’s conclusion that the trial court erred in dismissing the perjury indictments against the defendant.