A. Perjury consists of making a false statement under oath, affirmation or penalty of perjury, material to the issue or matter involved in the course of any judicial, administrative, legislative or other official proceeding or matter, knowing such statement to be untrue.

B. Whoever commits perjury is guilty of a fourth degree felony.

History: 1953 Comp., § 40A-25-1, enacted by Laws 1963, ch. 303, § 25-1; 2009, ch. 78, § 9.

Cross references. — For provision making false swearing to accounts by county officers perjury, see 4-44-32 NMSA 1978.

For perjury in land contest proceedings, see 19-7-66 NMSA 1978.

For bribery of witness, see 30-24-3 NMSA 1978.

For perjury concerning regulated oil and gas wells, see 70-2-10 NMSA 1978.

The 2009 amendment, effective July 1, 2009, in Subsection A, after "affirmation", added "or penalty of perjury" and after "official proceeding" added "or matter".

I. GENERAL CONSIDERATION.

Essential elements of perjury are that the testimony of the defendant in the prior case was false testimony under oath made on a material matter with knowledge that it was false. State v. Naranjo, 1979-NMCA-150, 94 N.M. 413, 611 P.2d 1107, rev'd on other grounds, 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101.

Materiality essential element of perjury. — Under the Fifth and Sixth Amendments of the United States constitution, a defendant is entitled to have the question of materiality submitted to the jury, and State v. Albin, 1986-NMCA-046, 104 N.M. 315, 720 P.2d 1256, and State v. Gallegos, 1982-NMCA-062, 98 N.M. 31, 644 P.2d 545, are overruled to the extent they hold that materiality is an element for the trial court to decide as a matter of law. State v. Benavidez, 1999-NMCA-053, 127 N.M. 189, 979 P.2d 234, aff'd in pertinent part, 1999-NMSC-041, 128 N.M. 261, 992 P.2d 274.

"Willfulness" not required. — "Willfulness" as an aspect distinct from "knowledge" is not a part of the offense established by the statute and the trial court did not err in refusing to instruct on "willfulness." State v. Borunda, 1972-NMCA-018, 83 N.M. 563, 494 P.2d 976, cert. denied, 83 N.M. 562, 494 P.2d 975.

Rule for proving perjury. — In prosecution for perjury, it is necessary to prove the falsity of defendant's sworn statements beyond a reasonable doubt. This may be done by the testimony of one witness supported by corroborating evidence or circumstances, but the corroboration must go beyond slight or indifferent particulars; it must strongly support the accusing witness. State v. Borunda, 1972-NMCA-018, 83 N.M. 563, 494 P.2d 976, cert. denied, 83 N.M. 562, 494 P.2d 975; Territory v. Remuzon, 1886-NMSC-019, 3 N.M. (Gild.) 648, 9 P. 598, overruled on other grounds by Territory v. Lockhart, 1896-NMSC-014, 8 N.M. 523, 45 P. 1106; Territory v. Williams, 1898-NMSC-015, 9 N.M. 400, 54 P. 232; State v. Naranjo, 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101.

Reason for special rule. — Justification for special rule in perjury cases is that it is not unreasonable that a conviction for perjury ought not to rest entirely upon an oath against an oath. State v. Borunda, 1972-NMCA-018, 83 N.M. 563, 494 P.2d 976, cert. denied, 83 N.M. 562, 494 P.2d 975.

Requirements of proof in perjury case are strictest in law, outside of treason charges. State v. Naranjo, 1979-NMCA-150, 94 N.M. 413, 611 P.2d 1107, rev'd on other grounds, 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101.

Presumption of truth under oath until dispelled. — In a perjury prosecution, the state must begin with the fact that an accused is clothed with a presumption that one will tell the truth when under oath and that, until this presumption is dispelled, one did tell the truth under oath: if the state does not prove the falsity of the statement under oath, the presumption must prevail that he did tell the truth. State v. Naranjo, 1979-NMCA-150, 94 N.M. 413, 611 P.2d 1107, rev'd on other grounds, 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101.

Knowledge inferred. — The jury could have inferred that defendant knew his testimony to be false when he gave it through reasoning that an ordinary person under similar circumstances testifying as to a specific date and time as defendant did should have known that his testimony was not true. State v. Montoya, 1966-NMSC-224, 77 N.M. 129, 419 P.2d 970.

Perjury before grand jury. — Penalty provided by former 40-32-1, 1953 Comp., for perjury "committed in any other case" applied to a conviction under former 40-32-2, 1953 Comp., for perjury before the grand jury. State v. Reed, 1957-NMSC-009, 62 N.M. 147, 306 P.2d 640, distinguished in State v. Borunda, 1972-NMCA-018, 83 N.M. 563, 494 P.2d 976, cert. denied, 83 N.M. 562, 494 P.2d 975 (decided under prior law).

False value given property. — A surety who swore falsely as to value of his property was guilty of perjury. Territory v. Weller, 1883-NMSC-004, 2 N.M. 470.

Statements at variance with previous unsworn statements. — The state is not entitled to a conviction for perjury merely on proof that statements under oath were at variance with previous unsworn statements. State v. Naranjo, 1979-NMCA-150, 94 N.M. 413, 611 P.2d 1107, rev'd on other grounds, 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101.

Evidence was sufficient to find that defendant testified falsely when he claimed in a prior homicide trial that he, and not the defendant therein, had committed the murder, where along with direct evidence to that effect, the testimony of four witnesses placed the other man at the scene of the crime, one of whom saw gun in his hand. State v. Borunda, 1972-NMCA-018, 83 N.M. 563, 494 P.2d 976, cert. denied, 83 N.M. 562, 494 P.2d 975.

Evidence establishing that defendant made false statements when he testified that the false testimony of another was correct was sufficient for conviction. State v. Benavidez, 1999-NMCA-053, 127 N.M. 189, 979 P.2d 234, aff'd in pertinent part, 1999-NMSC-041, 128 N.M. 261, 992 P.2d 274.

Allegations of charge must be direct and specific. — Before a charge of perjury can be sustained, the allegations must be direct and specific, the indictment must particularize where the testimony was false, a general allegation of falsity being insufficient, and, if the offense encompasses many allegedly perjurious statements, the defendant must be told in the indictment where and to what extent the statements alleged to have been made by him were false. State v. Naranjo, 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101.

Evidence admissible. — On trial for perjury for false swearing in a prosecution for adultery, defendant's admissions of marriage were admissible. United States v. Chaves, 1891-NMSC-027, 6 N.M. 180, 27 P. 489; United States v. de Amador, 1891-NMSC-025, 6 N.M. 173, 27 P. 488; United States v. de Lujan, 1891-NMSC-026, 6 N.M. 179, 27 P. 489.

Perjury as basis for post-conviction relief. — Defendant's contention that he was convicted on the basis of perjured testimony given by an informer was not supported with the requisite showing of a factual basis for the claim, and hence his motion for post-conviction relief was properly denied without a hearing. Nieto v. State, 1968-NMCA-045, 79 N.M. 330, 443 P.2d 500.

II. MATERIALITY.

"Material" construed. — The false testimony giving rise to a charge of perjury in a grand jury investigation does not actually have to impede or influence the investigation to be material; rather the false testimony is material if it has the capacity or tendency to influence or impede the investigation. State v. Watkins, 1979-NMCA-003, 92 N.M. 470, 590 P.2d 169.

Materiality of testimony. — False testimony is material if it has the capacity or tendency to influence the decision of the tribunal or the inquiring or investigative body, or to impede the proceeding, with respect to matters which such tribunal is competent to consider. State v. Gallegos, 1982-NMCA-062, 98 N.M. 31, 644 P.2d 545, cert. denied, 98 N.M. 336, 648 P.2d 794, overruled on other grounds by State v. Benavidez, 1999-NMCA-053, 127 N.M. 189, 979 P.2d 234.

A lie removing a murder suspect from the scene of the murder has the capacity or tendency to impede the administration of justice. State v. Gallegos, 1982-NMCA-062, 98 N.M. 31, 644 P.2d 545, cert. denied, 98 N.M. 336, 648 P.2d 794, overruled on other grounds by State v. Benavidez, 1999-NMCA-053, 127 N.M. 189, 979 P.2d 234.

Question of law. — Materiality is a question of law to be decided by the trial court. State v. Gallegos, 1982-NMCA-062, 98 N.M. 31, 644 P.2d 545, cert. denied, 98 N.M. 336, 648 P.2d 794, overruled on other grounds by State v. Benavidez, 1999-NMCA-053, 127 N.M. 189, 979 P.2d 234.

Testimony held material. — False testimony given by defendant in larceny proceedings, which was designed to establish an alibi, was material to the issues involved in the larceny case and therefore constituted perjury. State v. Montoya, 1966-NMSC-224, 77 N.M. 129, 419 P.2d 970.

Averment of materiality. — Where the indictment fully set forth the question averred to be material, in relation to which the testimony was given, it was sufficient in this respect. Territory v. Lockhart, 1896-NMSC-014, 8 N.M. 523, 45 P. 1106.

Evidentiary basis for determining materiality. — In order for the trial court to make a determination of materiality as a matter of law of an allegedly perjured statement, all that is needed, by way of evidentiary support, is the text of the statement and knowledge of the principal issue in the judicial proceeding in which the statement was made. State v. Albin, 1986-NMCA-046, 104 N.M. 315, 720 P.2d 1256, cert. denied, 104 N.M. 246, 719 P.2d 1267, overruled by State v. Benavidez, 1999-NMCA-53, 127 N.M. 189, 979 P.2d 234.

Since materiality is properly determinable as an issue of law, there cannot appropriately be any evidentiary or factual burden. State v. Albin, 1986-NMCA-046, 104 N.M. 315, 720 P.2d 1256, cert. denied, 104 N.M. 246, 719 P.2d 1267, overruled by State v. Benavidez, 1999-NMCA-53, 127 N.M. 189, 979 P.2d 234.

Law reviews. — For article, "Lawyers, Linguists, Story-Tellers, and Limited English-Speaking Witnesses," see 27 N.M.L. Rev. 77 (1997).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 60A Am. Jur. 2d Perjury §§ 1 to 4, 7, 8 to 14, 22 to 24, 27 to 35, 91.

Fear or compulsion, false statement made under, as perjury, 4 A.L.R. 1319.

Perjury in verifying pleadings, 7 A.L.R. 1283.

Marriage license, perjury as predicated upon statements upon application for, 101 A.L.R. 1263.

Administrative requirement, oath taken in pursuance of, as predicate for criminal offense of perjury, 108 A.L.R. 1240.

Recantation as defense in perjury prosecution, 64 A.L.R.2d 276.

Statement of belief or opinion as perjury, 66 A.L.R.2d 791.

Circumstantial evidence, conviction of perjury where one or more of elements is established solely by, 88 A.L.R.2d 852.

Perjury or false swearing as contempt, 89 A.L.R.2d 1258.

Defense: invalidity of statute or ordinance giving rise to proceedings in which false testimony was received as defense for prosecution for perjury, 34 A.L.R.3d 413.

Jurisdiction: offense of perjury as affected by lack of jurisdiction by court or government body before which false testimony was given, 36 A.L.R.3d 1038.

Propriety of sentencing judge's consideration of defendant's perjury or lying in pleas or testimony in present trial, 34 A.L.R.4th 888.

Materiality of testimony forming basis of perjury charge as question for court or jury in state trial, 37 A.L.R.4th 948.

Admonitions against perjury or threats to prosecute potential defense witness, inducing refusal to testify, as prejudicial error, 88 A.L.R.4th 388.

Right of defendant in prosecution for perjury to have the "two witnesses, or one witness and corroborating circumstances," rule included in charge to jury - state cases, 41 A.L.R.5th 1.

Two-witness rule in perjury prosecutions under 18 USCS § 1621, 49 A.L.R. Fed. 185.

Determination of "materiality" under 18 USCS § 1623, penalizing false material declarations before grand jury or court, 60 A.L.R. Fed. 76.

Construction and application of § 2J1.3 of United States sentencing guidelines (18 USCS Appx 1.3 § 2J), pertaining to sentencing for perjury, subornation of perjury, witness bribery, and departures therefrom, 130 A.L.R. Fed. 269.

70 C.J.S. Perjury §§ 1 to 28.