NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: DD, TF, 5 years, E-1. (Category 2)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), having taken a lawful (oath) (affirmation) in a (trial by __________ court-martial of __________) (trial by a court of competent jurisdiction, to wit: __________ of __________) (deposition for use in a trial by __________ of __________) (__________) that (he) (she) would (testify) (depose) truly, did, (at/on board—location), on or about __________, willfully, corruptly, and contrary to such (oath) (affirmation), (testify) (depose) falsely in substance that __________, which (testimony) (deposition) was upon a material matter and which (he) (she) did not then believe to be true.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused (took an oath) (made an affirmation) in a (judicial proceeding) (course of justice), that is: (state the judicial proceeding or course of justice alleged);
(2) That the (oath) (affirmation) was administered to the accused in a (matter) (___________) in which an (oath) (affirmation) was (required) (authorized) by law;
(3) That the (oath) (affirmation) was administered by a person having the authority to do so;
(4) That upon such (oath) (affirmation) the accused willfully gave certain testimony, namely: (set forth the testimony alleged);
(5) That the testimony was material;
(6) That the testimony was false; and
(7) That the accused did not then believe the testimony to be true.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
(A “judicial proceeding” includes a properly constituted court-martial.)
(A “course of justice” includes a preliminary hearing conducted under Article 32, UCMJ.)
(An “oath” is a pledge that binds the person to speak the truth.)
(An “affirmation” is a solemn and formal, external pledge, binding upon one’s conscience, that the truth will be stated.)
“Material” means important to the issue or matter of inquiry, but that matter need not be the main issue in the case.
NOTE 2: Corroboration instruction. When an instruction on corroboration is requested or otherwise appropriate, the judge should carefully tailor the following to include only instructions applicable to the case. Subparagraphs (1), (2), or a combination of (1) and (2) may be given, as appropriate:
As to the sixth element of this offense, there are special rules for proving the falsity of a statement in perjury trials. Falsity can be proven by testimony or documentary evidence by:
(1) The testimony of a witness which directly contradicts the statement described in the specification, as long as the witness’s testimony is corroborated or supported by the testimony of at least one other witness or by some other evidence which tends to prove the falsity of the statement. You may find the accused guilty of perjury only if you find beyond a reasonable doubt that the testimony of (state the name of witness), who has testified as to the falsity of the statement described in the specification is believable and is corroborated or supported by other trustworthy evidence or testimony. To “corroborate” means to strengthen, to make more certain, to add weight. The corroboration required to prove perjury is proof of independent facts or circumstances which, considered together, tend to confirm the testimony of the single witness in establishing the falsity of the statement.
2) Documentary evidence directly disproving the truth of the statement described in the specification, as long as the evidence is corroborated or supported by other evidence tending to prove the falsity of the statement. To “corroborate” means to strengthen, to make more certain, to add weight. The corroboration required to prove perjury is proof of independent facts or circumstances which, considered together, tend to confirm the information contained in the document in establishing the falsity of the statement.
NOTE 3: Exceptions to documentary corroboration requirement. There are two exceptions to the requirement for corroboration of documentary evidence. Applicable portions of the following should be given when an issue concerning one of the exceptions arises:
An exception to the requirement that documentary evidence must be supported by corroborating evidence is when the document is an official record which has been proven to have been well known to the accused at the time that (he) (she) (took the oath) (made the affirmation).
(Additionally,) (An) (Another) exception to the requirement that documentary evidence must be supported by corroborating evidence is when the document was written or furnished by the accused or had in any way been recognized by (him) (her) as containing the truth at some time before the supposedly perjured statement was made.
If (this exception) (these exceptions) exist(s), the documentary evidence may be sufficient without corroboration to establish the falsity of the statement.
You may find the accused guilty of perjury only if you find that the documentary evidence (and credible corroborative evidence) establish(es) the falsity of the accused’s statement beyond a reasonable doubt.
NOTE 4: Proving that the accused did not believe the statement to be true. Once the appropriate corroboration instruction in NOTE 1 above is given, the military judge should give the following instruction:
The fact that the accused did not believe the statement to be true when it was (made) (subscribed) may be proved by testimony of one witness without corroboration or by circumstantial evidence, as long as that testimony or evidence convinces you beyond a reasonable doubt as to this element of the offense.