Wednesday, November 15, 2006

Libby Argues No Underlying Crime

"Scooter" Libby is arguing that there was no underlying crime, no motive to lie, and thus the jury should be allowed to hear evidence that he had no reason to lie.  From a legal perspective this is a tough argument as perjury (actually false declarations here) does not require a motive and a lack of a motive does not negate the elements of the offense.  From a practical perspective, however, this may be a hook for a jury, if it is so inclined, to find that he did not have the mens rea to commit the offense.

The basic elements of this charge are that the accused acted "1) under oath; 2) before or ancillary to any court or grand jury of the United States; 3) made a false; 4) material statement; 5) with knowledge of its falsity."  See Podgor & Israel, White Collar Crime in a Nutshell 3rd Ed. (Thomson/West 2004).


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Ellen, didn't Martha Stewart try to use this defense against her false statements, obstruction of justice and conspiracy to commit perjury charges? I vaguely remember that she was not allowed to make that argument. Do you remember?

Posted by: Christine Hurt | Nov 15, 2006 7:05:55 AM

A similar argument indeed. In the appeal brief in Martha Stewart's case was the following argument:
"Whether, after a trial pervaded by allegations that Stewart had committed the uncharged crime of insider trading, the District Court erred by: (1) refusing to instruct the jury that it could not convict Stewart of insider trading and could consider evidence of uncharged conduct only for a limited purpose; and (2) barring Stewart from rebutting the Government’s allegations or explaining to the jury that she had not committed insider trading."

Posted by: esp | Nov 15, 2006 5:59:38 PM

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