If You Lie in a Deposition Correct the Lie or go to Jail
When there is a dispute over whether a claim on a policy of insurance arises the person seeking the benefits will be asked to testify at deposition or examination under oath. The testimony becomes complete when the transcript is read, corrected, and signed under oath by the person seeking insurance benefits. A lie in a deposition is criminal perjury.
In The People v. Jaime Ibarra, D074167, Court of Appeal, Fourth Appellate District Division One State of California (June 25, 2019) After a jury trial, Jaime Ibarra was convicted of one felony count of attempted perjury. He appealed.
In January 2015, Ibarra was employed by Management and Training Corporation (MTC) as a detention officer at the Imperial Regional Detention Facility. On January 25, 2017, he reported an ankle injury to his supervisor, and was asked to write a memo detailing the incident. In the memo, Ibarra reported that the incident occurred on January 24 between 1:00 a.m. and 2:00 a.m.
Information regarding the incident was also reported to an insurance company in connection with a worker’s compensation claim. Between Ibarra’s memo, a report from his supervisor, and the information provided to the insurance company, it was MTC’s understanding that the incident occurred between 1:00 a.m. and 2:00 a.m. MTC reviewed video footage within the time the incident was reported to have taken place, and saved a one-hour portion of the video from 1:00 a.m. to 2:00 a.m.
Ibarra’s worker’s compensation claim was denied since video showed no injury causing event at the time reported. As part of the worker’s compensation appeal, Ibarra took a deposition under oath where he testified to a different time of the accident.
A stipulation was entered into with Ibarra’s counsel that if the unsigned original transcript of the deposition was not returned within 60 days, a certified copy could be used for all purposes. Ibarra did not sign and return the transcript.
The People charged Ibarra with seven counts of insurance fraud and three counts of attempted perjury under oath. A jury convicted Ibarra of perjury. The verdict form included a verdict for perjury, which the court took to be a finding of attempted perjury, without objection from either party.
At issue in this appeal is whether substantial evidence existed for a reasonable jury to find beyond a reasonable doubt that Ibarra committed attempted perjury when he said in his deposition that he had not previously reported that his injury occurred around 1:00 a.m.
The California Penal Code defines perjury as follows: “Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.”
Although the crime of perjury does not occur until the deposition is deemed complete, this does not prevent the crime of attempted perjury from occurring before each element of perjury is satisfied. It is unquestionable that after the intent has been formed and such intent has been coupled with an overt act toward the commission of the contemplated offense, the abandonment of the criminal purpose will not constitute a defense to a charge of attempting to commit a crime.
It is sufficient that the defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime, and performs an act that goes beyond mere preparation and shows that the perpetrator is putting his or her plan into action. The act need not be the last proximate or ultimate step toward commission of the substantive crime. Whenever the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt.
Because defendant did not sign and return the deposition transcript the perjury counts to became attempted perjury.
Ibarra does not contend on appeal that the statements he made about his injury and when he suffered it were immaterial or that he did not know that the statements were false. Rather, Ibarra contends that, because he decided not to commit the last element of the offense — signing and returning the deposition transcript — he was not guilty of the crime of attempted perjury.
In this case multiple witnesses testified that Ibarra had reported that his injury occurred around 1:00 a.m. or between 1:00 and 2:00 a.m., including Ibarra himself that he contradicted in his deposition testimony.
Evidence was offered to suggest that Ibarra had incentive to lie about the time that the injury took place, inasmuch as the video evidence for this time period showed no such injury occurred. Moreover, the attorney who took Ibarra’s deposition testified that it was standard practice for him to give deponents 60 days to correct and return the deposition transcript before it could be used against them for all purposes, and that he entered into a stipulation with Ibarra’s attorney to this same arrangement.
Based on the evidence a reasonable jury could conclude that by lying at the deposition and subsequently reviewing part of the deposition transcript without finding any errors he wanted to correct, Ibarra’s actions constituted an unequivocal act in furtherance of the crime of perjury as well as an intent to commit the crime. Ibarra’s failure to sign and return the transcript thus does not absolve him of liability for attempted perjury.
In contrast to Ibarra’s proposed interpretation of the statute, the appellate court declined to adopt a rule that would allow a deponent to escape attempt liability by doing nothing to correct false statements already made. To do so would discourage both veracity under oath and reflection after false statements have been made.
Our interpretation reinforces the sound public policy of requiring a deponent to make corrections to false statements contained in the deposition transcript and deliver these corrections to avoid a perjury or an attempted perjury charge.
Ibarra lied in an attempt to obtain workers’ compensation benefits to which he was not entitled. He was convicted because the lie was under oath and an attempt to commit the crime of attempted perjury. Ibarra will be required to serve whatever sentence the court imposes on him.
© 2019 – Barry Zalma
This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and email@example.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
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