April 01, 2015

Perjury Prosecution Not Prohibited by Mother’s Lack of Counsel in Initial Hearing

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

State v. Churchill, 2015 WL 500890 (Mo.).

Where mother lied about having a child in an initial protective hearing, and sought to have the hearing delayed until she got an attorney, trial court did not err in proceeding or allowing her false testimony to later be used in perjury prosecution. Though mother had a right to counsel, initial hearing had to be held within three days and protection from false testimony was not among the rights to be protected in these hearings. 

Mother appeared for an initial protective custody hearing after allegations were made to child protective services regarding her five-year-old child. She said she wanted an attorney before she proceeded. The court, indicating it was just a preliminary matter, proceeded. She then testified that the child did not exist. The court heard from her relatives and the court continued to believe the child did exist. The court ordered her to produce the child in a few days.

The mother produced the child two weeks later after obtaining an attorney. She was charged with perjury for the prior false testimony. She moved to suppress the prior testimony, arguing it was given in violation of her statutory and constitutional right to counsel. The trial court denied her motion and she was convicted of perjury and sentenced to four years. She appealed. 

The Missouri Supreme Court found the trial court did not err in proceeding with the hearing or denying her motion to suppress the false testimony.

The supreme court first considered potential constitutional rights. The court held the mother did not have a Sixth or Fourteenth Amendment right to counsel at the protective custody hearing because the proceeding was not criminal in nature. Her risk of perjury was no greater than any other witness in a civil trial. 

Next the court examined whether the mother had a statutory right to counsel. State statute 211.091.1 provides that in child protection cases, a “party is entitled to be represented by counsel in all proceedings.” However, the court concluded, it was not clear the mother was a ‘party.’ At this point in the case, only the child and the state were named as parties. Court rule 115.03 however indicates that the court will appoint counsel for indigent parents when necessary for a fair and full hearing. 

Thus, the court assumed that mother was entitled to counsel. 

Next the court examined whether it was error to deny the motion to suppress. 

The court was under an obligation to conduct the protection hearing within three days of the petition. As the trial court explained to the mother, the hearing was not to determine the mother’s rights, but to decide whether the child needed to be taken into protective custody until a fuller disposition. Thus, the court was not unreasonable to seek to avoid delaying the hearing. 

Finally, the mother asserted that she should not have been prosecuted for perjury because she retracted the false claim two weeks later. However, she did not retract the claim in a timely manner. Retraction must be done before the false statement is exposed. The testimony of her relatives exposed the falsity before she presented the child to the court and acknowledged he was hers.