Use of Perjured Testimony in Nevada Courts
It is well established that use of perjured testimony in any legal proceeding is fundamentally unfair. For example, a criminal conviction based on perjured testimony violates due process and must be set aside if there is any “reasonable likelihood” that the false testimony could have affected the judgment of the jury. See generally, Jimenez v. State, 112 Nev. 610, 918 P.2d 687 (1996) and Riley v. State, 93 Nev. 461, 567 P.2d 475 (1977). Similarly, a district judge in a civil case has the discretion to grant an injured party a new trial if a verdict is based on false testimony. See Antevski v. Vlokswagenwerk Aktiengesellschaft, 4 F.3d 537, 541 (7th Cir. 1993); see also Ahem v. Scholz, 85 F.3d 774 (1st Cir. 1996) (verdict may be set aside and new trial ordered when verdict is against clear weight of evidence, or based upon evidence which is false, or will result in clear miscarriage of justice). Although in Nevada a court may not weigh the sufficiency of the evidence as grounds for a new trial, a court may grant a new trial when there is plain error in the record, or if there is a showing of manifest Injustice. Frances v. Plaza Pac. Equities, 109 Nev. 91, 847 P.2d 722 (1993) (citing Price v. Sinnott, 85 Nev. 600, 460 P.2d 837 (1969)).
Barbara Ann Hollier Trust v. Shack, 2014 WL 10537341 *42-43 (Nev. 2014).
In Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915 (9th Cir. 1987), a defendant gave certain deposition testimony, but he recanted his testimony on the first day of trial. The trial court sanctioned him by striking his answer. The Ninth Circuit affirmed, holding that the defendant’s “elaborate scheme involving perjury clearly qualifies as a willful deceit of the court.” Id. at 917. The court observed that the defendant’s recantation of his testimony was not motivated by a desire to repent and set the record straight; instead, he was motivated by a scheme to prevail at trial. Id. The defendant’s strategy was “orchestrated to reap a tactical advantage,” and therefore, permitting him to proceed to trial would have played into his hands and greatly disadvantaged the opposing parties who had planned their strategy and developed their case. Id.
Firefly Partners, LLC v. Reimann, 2016 WL 1276535 *17 (Nev. 2016).
Respondents also offer no legal authority to counter the authority cited by Appellants holding that a party is entitled to a new trial when the opposition has presented perjured testimony. See Antevski v. Vlokswagenwerk Aktiengesellschaft, 4 F.3d 537 (7th Cir. 1993) and NRCP 60(b).
Barbara Ann Hollier Trust v. Shack, 2014 WL 10537342 *39 (Nev. 2014).
“Rapoport’s in-court perjury, and perjury in his affidavits could land him in prison for one to four years. NRS 199.120.” Klein v. Rapoport, 2007 WL 9355268 *43 (Nev. 2007).
“It is uniformly held that the giving of false testimony is not civilly actionable. Radue v. Dill, 74 Wis.2d 239, 246 N.W.2d 507 (1976); Platts, Inc. v. Platts, 73 Wash.2d 434, 438 P.2d 867 (1968); Ginsburg v. Halpern, 383 Pa. 178, 118 A.2d 201 (1955); Kantor v. Kessler, 132 N.J.L. 336, 40 A.2d 607 (1945).” Eikelberger v. Tolotti, 96 Nev. 525, 531, 611 P.2d 1086, 1090 (1980).
Nevada Jury Instruction 2.07 reads:
The credibility or “believability” of a witness should be determined by his or her manner upon the stand, his or her relationship to the parties, his or her fears, motives, interests or feelings, his or her opportunity to have observed the matter to which he or she testified, the reasonableness of his or her statements and the strength or weakness of his or her recollections.
If you believe that a witness has lied about any material fact in the case, you may disregard the entire testimony of that witness or any portion of this testimony which is not proved by other evidence.
