Is Not Saying Anything Perjury? (California Penal Code 118)

Under PC 118, you can face a charge of perjury if you lie when you testify in court or if you are under oath. But what can happen to you if you choose not to say anything? Is that still considered perjury?

What is Perjury? (PC 118)

Under California Penal Code Section 118, it is illegal for you to intentionally give false information under oath. ¹ You can be charged with perjury if you purposefully provide false information while testifying in court, during a deposition, in a signed affidavit, declaration or certificate, or in a submitted driver’s license. ²

Prosecution for Perjury

In order to convict you of perjury under PC 118, a prosecutor must prove beyond a reasonable doubt the following:

• You took an oath to speak truthfully before a competent individual under circumstances in which the oath of the State of California lawfully may be given;
• When you spoke, you willfully stated that the information was true even though you knew it was false;
• The information was material;
• You knew you were making the statement under oath or penalty of perjury; and
• When you made the false statement, you intended to speak falsely while under oath or penalty of perjury. ³

In order to convict you of perjury for a statement made in a signed certificate, declaration or deposition, in addition to the above, a prosecutor must also prove beyond a reasonable doubt that you signed and delivered your statement to someone else intending that it be circulated or published as true. ⁴

Consequences of Perjury

If you are convicted of perjury in California under PC 118, you could be sentenced to two, three or four years in jail and fined up to $10,000.

You may face more serious consequences if you are convicted of aggravated perjury under PC 128. Under California Penal Code Section 128, if your act of perjury led to another person being convicted and executed, you could face life imprisonment. ⁵

Keeping Silent under Oath

But what if you don’t lie, but instead opt to say nothing? Can you still face perjury charges if you don’t say anything at all? It is important to note that you must actually state something, either audibly or in writing, in order to be charged with perjury. So, if you do not say anything but decide to keep silent, you cannot be convicted of perjury.

Refusing to Say Anything When You Testify

It is not considered perjury if you refuse to give a statement under oath.

So, what happens if you know information but decide not to testify? Is it a crime if you know information that is relevant to the case but you refuse to say anything when you testify? Again, you cannot be convicted of perjury if you refuse to testify or give a statement under oath, regardless if the information is relevant to the case.

However, if you are subpoenaed to testify and you refuse to answer questions when you take the stand, you could be held in contempt of court under California Penal Code Section 166. You could be held in custody until you agree to testify. Rather than answering questions you believe could lead to you facing criminal charges, you can “take the Fifth Amendment,” which means you are refusing to testify on the grounds that your answer may incriminate you.

What Can Happen If I Lie to a Police Officer?

Can you be charged with a crime if you provide statements to a police officer but later testify you lied? The short answer is yes, you can be charged with a crime if you lie to a police officer by making a statement and later testify that you lied when you spoke to the officer.

Under California Vehicle Code Section 31, you could be charged with a misdemeanor if you provide false information to a police officer when a police officer stops you in a vehicle. ⁶ Finally, under California Penal Code Section 148, you could be charged with a crime if you willfully resist, delay or obstruct a police officer who is performing his job duties. ⁷

What If I Testify That I Didn’t Say What is in the Police Report?

If the truth is that the police officer did not properly record what you told him or her, it is your lawful right and duty to clarify that when you testify. If you think the police officer you spoke to misunderstood your statements, you can clarify those statements when you testify. It is extremely unlikely if you give such truthful testimony that you could be successfully prosecuted for lying to a police officer.

Call the Perjury Attorneys at Wallin & Klarich

If you are accused of perjury under Penal Code 118 PC, Wallin & Klarich can help.

Perjury can be a very serious crime. If you or a loved one have been asked to testify under oath and you have any questions regarding perjury, you need to contact Wallin & Klarich today.

The criminal defense attorneys at Wallin & Klarich have been successfully defending those charged with perjury for over 40 years.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you today.

Call us today at (877) 4-NO-JAIL or (877) 466-5425 for a free phone consultation. We will get through this together.

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2. [Id.]↩
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5. [PC 128]↩
6. [VC 31]↩
7. [PC 148]↩</sup>