Someone once told me that the only value of a lock is to keep an honest man honest.
The value of perjury statutes is exactly the same: They make an honest person extra careful about what s/he tells the court.
To a liar (the person they’re supposed to thwart), they’re just “blah-blah-blah.” Perjury (often recognized as a felony crime) isn’t prosecuted—and for that reason, judges seldom even use the word. If a plaintiff is caught lying, and the lying is significant enough to urge dismissal of the case, s/he may get a stern talking to post-trial. That’s about it.
Restraining order judges make a liberal determination about whether sufficient merit exists in a plaintiff’s claims to warrant upholding a temporary order. Lies irrelevant to that determination may be ignored even if a judge detects them.
Judicial disposition is to credit plaintiffs and suspect defendants, and that’s a high hurdle for a defendant to clear. The defendant also enters the courtroom having been prejudged “guilty.” (Some respondents to this blog report never having been allowed to address the court at all—or being silenced after a few minutes.) Besides their being prejudiced, hearings to finalize restraining orders are, putting it generously, “highly accelerated” trials. Putting it accurately, they’re superficial.
But no allowance for that is made after they’re over.
The only way to have a restraining order that’s based on fraud vacated is to expose lies during the “highly accelerated” trial. That’s why attorney Greg Hession, a strenuous critic of restraining orders (his blog is MassOutrage.com), emphasizes the importance of exposing a plaintiff’s lies and “ulterior motives” during trial: There is no “second chance.”
From Easterling v. Ameristate Bancorp., Inc. (2012):
[I]t is well settled that “[p]erjury in a prior case cannot support a cause of action in a subsequent civil case.” Elliott v. Brown, 2d Dist. Miami No. 10-CA-19, 2010-Ohio-5749, ¶12; see also Costell v. Toledo Hosp., 38 Ohio St.3d 221, 223-24, 527 N.E.2d 858 (1988) (“[A]ppellants have essentially set forth allegations constituting perjury, subornation of perjury, and conspiracy to commit perjury, all of which are punishable under the criminal statutes but which, for public policy reasons, may not be the basis of a civil lawsuit.”).
You can’t appeal a restraining order that succeeded on false evidence on the grounds that it succeeded on false evidence (unless new proof is discovered that you couldn’t have previously brought to the court’s attention). You can’t sue for perjury, either.
Similarly, unless you prevailed at trial, the odds of winning a lawsuit brought for fraud or intentional infliction of emotional distress, for instance, are very low.
You have one window of time in which to expose false accusations (and ulterior motives), and that window is very narrow.
Other countries follow the same policy ours does (in the interest of economy), for example, Canada:
[T]he claim to vacate a judgment on the grounds of perjury cannot succeed unless by new evidence and shewing that the aggrieved party could not by reasonable diligence have been able to discover and bring forward at the trial such new evidence as desired to be presented in the action….
That opinion (in MacDonald v. Pier) was entered almost 100 years ago (hence the antique spelling of showing). It’s etched in stone.
Everyone who’s been fraudulently misrepresented to a judge and railroaded in court is excited to learn the word perjury, because s/he just knew lying under oath had to be a crime.
What s/he might have expected, though, is that perjury, like telling the truth, doesn’t matter.
Copyright © 2016 RestrainingOrderAbuse.com
*To expose false accusations and ulterior motives at trial, it’s essential that defendants insist upon the right to cross-examine (question) their accusers. It’s one thing to say the plaintiff is lying or to try to show that s/he has lied with evidence; it’s another to actually have the plaintiff admit lies (or contradict him- or herself) on the stand in the presence of the judge.
TALKING BACK to restraining orders 
fightingbarbie
June 3, 2016
“Active” and “Passive” Use of Perjured Testimony
“Active” Use
The due process clause can be violated buy an “active” proffer of
perjured testimony if the State actually introduces the false testimony.
See Mooney v. Houlohan, 294 U.S. 103, 111, 55 S. Ct. 340, 341, 79 L. Ed.
2d 791 (1935) (prosecutor suborned witness’s perjury).
“Passive” Use
The due process clause can be violated by a “passive” proffer of
perjured testimony if the State fails to correct such testimony at trial.
See Alcorta v. Texas, 355 U.S. 28, 31, 78 S. Ct. 103, 105, 2 L. Ed. 2d 9
(1957) (prosecutor failed to correct witness’s perjury, though he did not
coach the witness to perjure himself).
The duty also extends to the duty to correct false impressions which
may be engendered by a witness’s presentation of evidence. See
Duggan v. State, 778 S.W.2d 465, 467 (Tex. Crim. App. 1989).
The following three part test is used to determine when a prosecutor has
violated the Due Process Clause by failing to disclose evidence. See, e.g., Ex parte
Mitchell, 853 S.W.2d 1, 4 (Tex. Crim. App. 1993), cert. denied, 114 S. Ct. 183
(1993).
A defendant must prove all three prongs of the test in order to establish a
due process violation. See, e.g., Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim.
App. 1997), cert. denied, 118 S. Ct. 305 (1997).
(1) Has there been a failure to disclose evidence?
(2) Is the evidence favorable to the accused?
The test for favorability is whether the evidence, if disclosed and used
effectively by defense counsel, may make the difference between conviction and
acquittal. See Mitchell, 853 S.W.2d at 4.
“Favorable evidence” includes both “exculpatory” and “impeachment”
evidence. See Bagley,473 U.S. at 676, 105 S. Ct. at 3380; Thomas, 841 S.W.2d at
403.
Exculpatory evidence” is testimony or evidence which “tends to justify,
excuse, or clear the defendant from alleged fault or guilt.” See Thomas, 841
S.W.2d at 404.
(3) Does the evidence create a probability sufficient to undermine the confidence
in the outcome of the proceeding, i.e., was the evidence “material”?
Evidence withheld by a prosecutor is “material” if there is a reasonable
probability that, had the evidence been disclosed to the defense, the outcome of
the proceeding would have been
different. See Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App.), cert.
denied, 118 S. Ct. 305 (1997), (quoting Ex parte Kimes, 872 S.W.2d 700, 702 (Tex.
Crim. App. 1993)).
The standard is that of “a ‘reasonable probability’ of a different result,” so
that the issue “is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy of
confidence.” See Kyles, 514 U.S. at 434, 115 S. Ct. at 1566. A “reasonable
probability,” then, is a probability “sufficient to undermine confidence in the
outcome of the trial.” See id. at 434, 115 S. Ct. at 1566.
The test for materiality is not a test for sufficiency of the evidence. See
Kyles, 514 U.S. at 434-35, 115 S. Ct. at 1566 (“A defendant need not demonstrate
that after discounting the inculpatory evidence in light of the undisclosed
evidence, there would not have been enough left to convict.” Rather, he must
simply show “that the favorable evidence could reasonably be
taken to put the whole case in such a different light as to undermine the
confidence in the verdict.”).
Materiality is determined by examining the alleged error in the context of
the entire record and the overall strength of the State’s case. See Lagrone, 942
S.W.2d at 615-16; Thomas, 841 S.W.2d at 404-05.
The suppressed evidence must be considered collectively, not item-byitem.
See Kyles, 514 U.S. at 436, 115 S. Ct. at 1567.
On direct attack the materiality of perjured testimony is measured under
the constitutional harmless error standard –the use of perjured testimony will be
found to be material “unless a reviewing court is convinced beyond a reasonable
doubt that the perjury did not contribute to the conviction or punishment.” See
Castellano, 863 S.W.2d at 485; v Duggan, 778 S.W.2d at 469.
In Giglio v. United States, The Court was careful to stress that a Brady
violation requires a finding of materiality, which it defined as whether the
evidence could “in any reasonable likelihood have affected the judgment of the
jury”.
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Rivkah Hirtshberger
May 2, 2016
Amen to all of that above…my former boyfriend was and is totally medically insane and I was blindsighted by him and his witness’ testimony. Now this woman admits he is crazy or mentally ill but it is a year too late to admit that. “He recently called her a “soul killer” which to me now here I agree to it was said in his totally crazy frame of mind.His and her perjury and me not being allowed to present more that a brief two or three minutes rebuttal set the course for me to have an RO on my permanent record when all I did was email him the distress I was in because he refused to respond to me due to his mental illness…too late for anything and even though the superior court judge gave me my day in court there was no way to prove wrongdoing on the behalf of the lower court judge hence the restraining order stood.I am picking up the pieces of my life albeit slowly due to two years worth of trauma related to my association with the plaintiff who is becoming crazier and crazier with no one to help him….we might have had a good life at the end of our lives but alas it is not to be….still I meander on in the later part of life having learned a very hard lesson about our legal system,
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Gregory Hession
May 2, 2016
Perjury in restraining orders is actually incentivized, not only by failing to prosecute it, but by allowing one-person hearings (ex parte) to get the orders originally, a super-low burden of proof to issue orders, no juries, a judiciary which actually gets training from feminist groups about the need for issuing orders, no rules of evidence to keep out unreliable phony stuff like hearsay, and much else. Given all this pro-perjury bias, it is a miracle when an innocent defendant wins.
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julie
May 2, 2016
you have got to become a lawyer to fight this insanity.
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Todd Greene
May 3, 2016
It’s true. I’m in two prosecutions right now, and I’ve submitted about 300 pages in legal motions in the past 60 days (80 hours work, easy). My motions were denied, in many instances unread. I’ve had to apply to be appointed attorneys in both cases to ensure that meritorious claims stand a chance of registering on the judicial radar.
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agent provocateur
May 1, 2016
Reblogged this on Nevada State Personnel WATCH.
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bettykrachey
May 1, 2016
Reblogged this on Falsely Accused.
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nathanlarson3141
May 1, 2016
The worst of it is, if your accuser tries to make things right and says to the court, “I recant; I was lying earlier,” THAT is when they will finally be prosecuted for perjury.
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Todd Greene
May 1, 2016
Do you know of someone this happened to?
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Rivkah Hirtshberger
May 2, 2016
I haven’t ever heard of a plaintiff recanting.
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nathanlarson3141
May 21, 2016
Not in a restraining order case, but in a criminal case: https://jonathanturley.org/2013/08/20/virginia-woman-falsely-accuses-man-of-rape-and-sends-him-away-for-four-years-before-recanting-given-just-60-days-in-jail-to-be-served-on-weekends/
Also, a member of my church, while living in her mom’s home as a teenager, got caught with a guy she met off the Internet, and accused him of rape to get out of trouble. The pastor (who was also a police detective) questioned her and concluded she was lying, based on her lack of symptoms of trauma. She recanted and was charged with filing a police report. She went through a juvenile diversion program and the charges were dropped.
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