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by: Ryan Scott • October 25, 2017 • no comments

When is it abuse of discretion for a judge to give a "witness-false-in-part" instruction over the defendant's objection?

Although defendant told the police something different about her behavior the night of the offense than she testified to at trial, in her trial testimony, she admitted that she had lied to the police earlier. In response to questions on cross-examination, defendant explained that she had lied about Brett being in the bedroom because she did not want him to get into trouble for drinking in violation of his probation. Thus, the identified inconsistency does not tend to show that there was anything about defendant’s testimony that was false—let alone consciously false—when measured against her earlier statements. Instead, defendant’s testimony in this case demonstrates quite clearly that her prior statements were false, not that her testimony was false. In other words, there is nothing about defendant’s statements to the police that contradicts her testimony at trial that she had lied in making those statements. In short, defendant’s statements at the scene do not provide a basis from which the jury could find that defendant consciously testified falsely, and the court abused its discretion in giving the instruction on that basis.”

Milnes, 256 Or App at 708-09 (emphases omitted).