No. 13476 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

-vs - 

JACK Me SCANLON, 

Defendant and Respondent. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas Budewitz argued, Assistant Attorney General, 

Helena, Montana 

Albert Melloling argued, Special Assistant Attorney 

General, Helena, Montana 

For Respondent : 

Donald Garrity argued, Helena, Montana 

Submitted: October 21, 1976 

Decided : mc - $a 197~ % 

Filed: Ec % 0 1976 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

The state appeals from dismissal of eighteen counts of 

perjury returned by the grand jury against Jack M. Scanlon, defendant. 

The grand jury in Lewis and Clark County initiated an investigation into defendant's Workers' Compensation related activities. 

The foreman of the grand jury stated: 

"* * * Pursuant to this inquiry, the Grand Jury will 

examine the activities of Jack Scanlon in his representation of claimants before the Industrial Accident 

Board and the Workmen's Compensation Division during 

the period between mid-1969 and mid-1973 and thereafter. 

"This inquiry will include a review of each step of 

Mr. Scanlon's professional representation, commencing 

with initiation of the attorney-client relationship 

and continuing through the conclusion of such representation, including any related third-party litigation involving subrogation rights ." 

part of this investigation a number defendant's 

clients were called and testified to the manner the attorneyclient relationship was initiated. After this testimony, the 

grand jury requested the attorney general to file a complaint 

with the Commission on Practice charging defendant did solicit 

without legal cause or permission, the individuals who testified. 

Defendant was called to testify before the grand jury and 

refused to answer questions posed to him asserting his right 

against self-incrimination. Thereafter, in an effort to find 

where defendant received the information, defendant was granted 

immunity against prosecution except prosecution for contempt and 

perjury. He testified for two days before the grand jury,denying 

he solicited these persons and offered explanation for the manner 

in which they became his clients. Following defendant's testimony 

there was further inquiry and some clients were recalled. Some 

people, whom defendant said referred these clients to him, were 
called to testify. The grand jury returned anindictment charging 

eighteen counts of perjury. 

Defendant filed a motion to dismiss these charges, which 

was granted. The state appeals. 

We summarize the issues presented to be: 

1. Whether the evidentiary standard required for proof 

of perjury was met? 

2. Whether the allegedly perjured testimony was material? 

3. Whether off-the-record statements made to the grand 

jury were grounds for dismissal? 

4. Whether there was sufficient prosecutorial misconduct 

to warrant dismissal of the indictment? 

5. Whether the admonition of secrecy delivered to the 

grand jury witnesses was grounds for dismissal? 

First, we consider the strict evidentiary standard required 

for the proof of perjury. Three Montana statutes are applicable: 

Section 94-7-202(7), R.C.M. 1947, provides: 

"No person shall be convicted of an offense under 

this section where proof of falsity rests solely upon 

the testimony of a single person other than the def endant .'I 

Section 93-401-1, R.C.M. 1947, provides: 

"The direct evidence of one witness who is entitled 

to full credit is sufficient for proof of any fact, 

except perjury and treason." 

Section 93-1401-2, R.C.M. 1947, provides: 

"Perjury and treason must be proved by testimony of 

more than one witness; treason by the testimony of two 

witnesses to the same overt act; and perjury by the 

testimony of two witnesses, or one witness and -. corrobora- - 

tinp; circumstances." (Emphasis added.) 

The basis for unusually stringent evidence requirements is 

set out in an article in 19 UCLA Law Review 638, 642,643 entitled 
"Perjury and Related Offenses Under the Proposed California 

Criminal Code." That same article points out at p. 645, that 

Tentative Draft No. 6 of the Model Penal Code on this point reads: 

"Corroboration. Proof of guilt beyond a reasonable 

doubt shall suffice for conviction under this section 

as in other criminal cases, without special requirement 

of two witnesses or corroborating circumstances. 

" [Alternate,rejected -- - -- by the council: No person shall 

be convicted of an offense under this Section where 

proof of falsity rests solely upon contradiction by 

testimony of a person other than the defendant.]" 

The official draft of the Model Penal Code, which served as the 

basis for section 94-7-202(7), R.C .M. 1947, used the alternate 

provision. In Montana Criminal Code, 1973, Annotated, Prof. 

William F. Crowley - Editor, at page 293 the annotator points out: 

"The common law rule that falsehood be established 

by two witnesses is adopted in part by subsection (7). 

At the common'law this rule was adopted to deal with 

the problem of an oath against an oath. The modern 

rationale is a policy determination based on a balancing 

of the need for protection of witness and the need to 

maintain the sanctions for false testimony. In adopting 

the requirement of more than one witness Montana has 

followed the majority of states in affording additional 

protection to the witness at the possible cost of being 

unable to convict an apparent perjurer. * * *I1 

As noted above, the standard of proof required in Montana under 

the new code section 94-7-202(7), R.C.M. 1947, requires that the 

proof of the falsity of a statement must be more than the contradiction testimony of a person other than the defendant. The legislature recently made this policy determination and despite the 

contrary rule urged by the state, this is the rule in Montana. 

The exact requirements of this evidentiary rule in perjury 

cases are apparent from an examination of the California cases interpreting the section of the California Civil Code, identical to 
Montana's section 93-1401-2, R.C.M. 1947. In an article entitled 

"Proof of Perjury: The Two Witness Requirement", 35 Southern 

California Law Review 86,97, it is stated: 

I I In summary, the California attitude is, and remains, 

that direct testimony of at least one witness must 

always be introduced to prove the falsity of the 

statement set forth in the indictment; circumstantial 

evidence alone will not support a perjury conviction." 

In People v. Roubus, 53 Cal.Rptr. 281, 417 P.2d 865, 866, 

867, the California Supreme Court, sitting In Bank, outlined this 

evidentiary requirement: 

"Perjury must be proved by the testimony of two witnesses, 

or of one witness and corroborating circumstances. * * * 

This statutory provision has been interpreted as prescribing not only the amount but also the kind of evidence 

necessary to support a perjury conviction. * * * Direct, 

as distinguished from circumstantial, evidence of the 

falsity of the defendant's testimony by at least one witness 

is generally required. * * * This does not mean that there 

must be a denial in the very words of the defendant's 

testimony * * * but that there muet be testimony by at 

least one witness furnishing direct evidence of facts 

contrary to, or absolutely incompatible or physically inconsistent with, that sworn to by the accused * * *, 

Evidence that establishes facts from which the falsity 

of an alleged perjured statement may or may not be inferred 

is insufficient under the direct evidence rule. * * * 

"The rule requiring proof of falsity by direct evidence has 

been criticized. * * * However, this requirement was early 

established in this state by decisions construing our 

statutory provision. It is noteworthy that a majority of 

jurisdictions which apply the rule that falsity must be 

proved by the testimony of two witnesses, or of one witness 

and corroborating circumstances, hold that circumstantial 

evidence alone is generally insufficient to establish 

falsity.'' 

An early Montana case indica tEs this is the law in Montana 

as well, In State v. Gibbs, 10 Mont. 213, 219, 25 P. 289, it is 

said: 

"'It is not necessary that there should be two living 

witnesses in contradiction of the statement of the defendant to justify a confiction of perjury. It is sufficient if, in addition to one directly opposing witness, 

corroborating circumstances sufficient to turn the scale 

and overcome the oath of the defendant and the legal 

presumption of his innocence are proved. 111 
The Court in Gibbs approved this instruction as to proof of perjury: 

If'* * * that such act of perjury has been established 

to your satisfaction beyond a reasonable doubt by more 

than one witness, or that the testimony of such witness 

has been corroborated upon that point by other facts and 

circumstances proved on the trial. In other words, the 

direct evidence of one witness alone is not sufficient 

to convict of the crime of perjury, unless corroborated 

by other facts and circumstances proved on the trial. t 11 

In Gibbs the Court was construing the then equivalent code section 

to section 93-401-1, R.C.M. 1947. Section 93-1401-2 had not been 

enacted at that time. In State v. Jackson, 88 Mont. 420, 293 P. 

309, the Court cited Gibbs as authority of the requirement that 

perjury must be proved by the testimony of two witnesses, or one 

witness and corroborating circumstances indicating that this was 

the law even prior to the passage of section 93-1401-2, R.C.M. 1947. 

A subsidiary question to be determined regards the nature 

of the corroborating circumstances that must be proved. The rule 

in *California, that the state argues we should adopt, is stated 

in People v. Casanova, 54 Cal.App. 439, 202 P. 45,47: 

'I* * *The statute respecting the quantum of evidence 

necessary in perjury cases will be satisfied, if there 

be the testimony of one witness to facts that are 

absolutely incompatible with the innocence of the 

accused, corroborated by circumstances which, of themselves and independently of such directly inculpatory 

evidence, tend, with a reasonable degree of certitude, 

to show that the accused is guilty as charged." 

See also: People v. Pustau, 39 C.A.2d 407, 103 P.2d 224,228. 

the Court said that "corroborating circumstances 

sufficient to turn the scale and overcome the oath of the defendant 

and the legal presumption of his innocence" are all that is required. 

In People v. Todd, 9 C.A.2d 237, 49 P.2d 611, 614, it is pointed 

out : 
"It is also well settled that motive and design to commit 

a crime, if.proved, may be considered a quilty circumstance * * * and consequently maylserve legally as corroborative 

evidence; and in this behalf it has been repeatedly held 

that where, as here, it is claimed that several offenses have 

been cormitted as part of one scheme or plan, all of the 

same general character, tending to the same common end, 

evidence thereof may be received to show the process or 

motive and design to commit the particular offense with 

which the accused is charged, and as tending to show 

logically that the particular offense for which he is being 

tried was part of such common scheme." 

The second issue involves the requirement that the alleged 

perjured statement be material. The Montana statute, section 94-7- 

202(3), R.C.M. 1947, provides: 

"Falsification is material, regardless of the admissibility 

of the statement under rules of evidence, if it could have 

affected the course or outcome of the proceeding. It is no 

defense that the declarant mistakenly belidved the falsification to--be immaterial. Whether a falsification is 

material in a given factual situation is a question of law." 

The Commission Comment points out: 

"The proposed definition of 'materiality' in subsection 

(3) does not differ substantially from that given by prior 

law. " 

In State v. Hall, 88 Mont. 297, 304, 292 P. 734, the Court 

said : 

"* * *Also it may be conceded that the general rule is 

that anything so connected with the matter at issue 

as to have a legitimate tendency to prove or disprove 

some material issue by giving weight or probability to, 

or detracting from, the testimony of a witness, is material * * * and that, if evidence is circumstantially material, 

it is sufficient to sustain a perjury charge." 

The test for materiality as set out by the statute is not particularly 

difficult to meet, it requires only that in the actual factual 

situation involved would it be reasonable to find that the defendant's 

statement, if believed, could have altered the course of the investigation. 

While it is true that a false answer to a trivial or 

irrelevant question does not in and of itself hamper the £unctioning 
of the state, the court, whose integrity depends on the truth, 

has a special interest in seeing those who do not tell the truth, 

whether to a relevant or irrelevant matter, do not go unpunished. 

See section 94-7-203, R.C.M. 1947, which provides for the punishment of a false statement in an official proceeding whether that 

statement was material or not, and makes such false statement a 

misdemeanor. 

We note here that nearly all cases cited by both parties 

involve a post-trial, not post-indictment determination of these 

required elements. We are considering here perjury counts before 

a grand jury and not after a trial. The grand jury statute, section 

/' (3 95-1&9-(c) , R.C.M. 1947, provides: 

"The grand jury shall find an indictment when all 

the evidence before it, taken together, if unexplained 

or uncontradicted, woa, in its judgment, warrant a 

conviction by a trial jury ." 

The district court dismissed each of the eighteen counts 

based on the absence of one of these elements---lack of direct 

evidence as to the falsity of the statement, lack of corroboration 

or lack of materiality. Several of the counts against defendant 

arose out of transactions wherein defendant testified the clients 

were referred to him by an uncle and aunt, Mr. and Mrs. Richard 

Mullins or by a Mr. and Mrs. Herman Meyers, long time family friends. 

At the time defendant testified all of these people were deceased. 

The clients who appeared before the grand jury denied ever knowing 

ank of the named people, however, these deaths prevented the state 

from getting the necessary direct evidence required to prove perjury. 

The district court dismissed these counts for lack of direct evidence 

as to the falsity and these dismissals were proper. 

We have carefully reviewed all other counts, and hold that 

with the exception of counts 9 and 10, they should have been dismissed. 
The dismissal of those counts comes from the fact they were not 

supported by direct evidence of the falsity of the defendant's 

statements or due to &lack of sufficient proof to offset defendant's 

failure to remember certain facts. 

A summary of count 9. charges that Jack M. Scanlon, falsely 

testified that Grace A. Rieker first contacted him on the telephone, 

when in truth and fact he knew that he had instigated the telephone 

conversation with claimant for the purpose of initiating a clientattorney relationship; and that he so testified to deceive and 

frustrate the grand jury in its investigation contrary to section 

94-7-202, R.C.M. 1947. 

A summary of count 10 charges that defendant falsely 

testified that prior to the telephone call from claimant he had 

L 

never heard of the claimant nor the fact that she was injured, / 

while in truth and fact he knew the claimant and that she had 

been injured prior to ever talking to her, and he so testified 

for the purpose of deceiving and frustrating the grand jury 

contrary to section 94-7-202, R.C.M. 1947. 

When asked how he came to represent Mrs. Grace Rieker 

and her claims before the Industrial Accident Board, defendant 

in answer to questions testified: 

"Q. How did she come to know you? A. I don' t know 

you wi.11 have to ask her that. 

"Q. The first contact with Grace Rieker was by her telephoning you? A. As I recall, yes. 

"Q. Let me give you your files, in case you need them 

to refresh your memory. Did she call you in your office 

in Helena? A. As I recall, yes. 

"Q. What did she say to you? A. She asked me about, 

as I recall, representing her in her industrial accident 

claim. 
"Q. Now which claim was this? A. As I recall, there 

were two claims. One was for a neck injury, and she called 

me relative to that? 

"Q. All right. In response to her phone call, what did 

you do? A. I met with her. 

"Q. Where? A. In Boulder. 

"Q, And who was present? A. I think her husband was, but I 

am not sure. 

Q. Now, this was the very first contact that you ever 

had with her, was when she phoned you? A. As best I can 

recall, yes. 

"Q. And prior to her phoning you, you had never heard of 

Grace Rieker or her injury or anything else? A. No. 

"Q. But, you are confident that you did not solicit the 

attorney-client relationship yourself? A. Yes, I am 

confident I didn't solicit the attorney-client relationship 

myself .I1 

Mr. Fuller testified as to his recollection of the Rieker 

case indicating he and defendant were high school friends and 

they had kept that relationship going over the years. He said 

that after he had talked with investigators of the Workmen's 

Compensation investigation team, and just before he testified 

before the grand jury, he called Scanlon about the Rieker case 

because it was one they had asked questions about. He testified: 

"Q. Well, did you ch~ck with him to make sure that his 

recollection of the Grace Rieker incident was the same 

as yours? Just to make sure that in your own mind that 

your memory--- A. Xes I did. 

"Q. So you went through with him how he developed his 

relationship with Grace Rieker in so far as you were 

concerned? A. The only thing I asked him was related 

to if he recalled that there were two calls made by me, 

if I ever told him that, or if he had made a phone call 

from my home. 
"Q. What did he say? A. He said no. 

"Q. In other words, according to what Scanlon told 

you on the phone on March 26th, Grace Rieker made the 

first contact with Scanlon? A. Yes. 

"Q. And it was either that she phoned him, asking for 

assistance of an attorney --- right? A. Right. 

"Q. -- or that she came to his office? A. Right. 

"Q. But did he tell you that in no way that he contacted Grace Rieker, telephoned her, or through, talked 

to her? A. Right .I1 

Fuller also testified he did not remember either giving the 

Riekers the phone number of Scanlon; or giving Scanlon the 

Riekers ' number. 

Mrs. Rieker testified before the grand jury that she was 

a secretary-receptionist at the Boulder Riyer School and on 

December 22, 1967, she had slipped down the school steps and 

received an injury that incapacitated her for a period of time. 

For that period she received no compensation other than from 

her sick leave. She returned to work and several years later 

on June 18, 1970, she was injured and from this injury she 

received compensation on an off and on basis. She testified that 

during her recovery a Mr. Ron Fuller of Boulder asked her if she 

was interested in a lawyer to help her get her industrial accidents payments. He told her.he had a friend that was a lawyer and 

would she like him to come to talk to.her. 

Her testimony on the Fuller calls was: 

"Q. As a result of this difficulty, did someone make a 

contact with you? Did some attorney make a contact with 

you, either personally or through someone else? A. Yes. 

"Q. And what was the name of that attorney? A. Mr. Jack 

Scanlon. 
"Q. Prior to this contact being made to you, had you 

ever personally known Scanlon? A. No. 

"Q. How did this initial contact regarding Scanlon take 

place. A. A gentleman by the name of Ron Fuller--- 

"Q. So Fuller volunteered over the phone that he had 

a friend who was a lawyer and might be able to help you? 

A. Yes. 

Q. Now did you have additional problems with the Industrial 

Accident Board? A. Yes. 

"Q. Did you, as a result of those additional problems 

say, hey, I remember that fellow Scanlon and go and call 

Scanlon? A. No. 

I I Q. Were you contacted a second time? A. Yes. 

"Q. And who did this? A. Mr. Fuller again. 

"Q. All right. And was this without a request on your 

part? A. Yes. 

"Q. Was there anybody else there with Fuller at that 

time? A. Yes. 

"Q. Who was that? A. Mr. Scanlon. 

"Q. And how do you know that? A. Because Mr. Fuller 

asked me if I would like to talk to him on the phone and 

I said, well, I supposed I could talk with him about my 

problem, so I did talk to him on the phone. 

Q. Iday, so what did Scanlon say when he got on the phone? 

A. Told me he would like to handle my case, he had heard 

about it, was interested in it and thought he could help me. 

Q. Did he eventually come over to your your house? A. Yes. 

"Q. And when he talked with you, did he seem to know the 

details of your current accident? A. Yes. 
"Q. How did he learn about the 1967 accident? A. He 

asked me at that point if I had ever had a previous 

injury, and I said yes." 

A1 Rieker, husband of Grace, testified corroborating 

her testimony that after her 1971 injury she was contacted by 

Ron Fuller about whether she needed a lawyer and they told him 

IIno1' . About the second contact by Fuller he testified: 

"Q. '* * * Now, at a later time do you recall being home 

when the telephone rang? A. Yes. 

"Q. Did you answer or did your wife? A. My wife answered 

it. 

"Q. * * * Now, after she finished talking on the phone 

did she tell you who had called? A. Yes, she did. 

"Q. And who did she say? A. She said Ron had called and 

he had put Jack Scanlon on and she talked to Jack Scanlon. 

Q. While you were in the house? A. Yes. 

"Q. All right. Did Scanlon eventually come over to your 

home? A, Yes, he did. 

"Q. Now, when Scanlon came to your home, did he tell you 

what the reason was that he talked to your wife over the 

phone? A. yes, he did. He said he had been in contact 

with Ron Fuller and they had talked over our case and 

thought we needed a lawyer, or that he might help. 

"Q. That he, Scanlon might help? A. Yes. 

"Q. Okay. So that Scanlon told you he had found out 

about your wife's claim before talking to your wife, 

from Fuller himself. A. Right. 

"Q. And that was the reason that he had talked to your 

wife on the phone? A. That is correct. 

"Q. And then later on, at a later time, he came to your 

house and he confirmed that to you. A. Yes. 1 I 

As to these counts there are clearly contradictory statements 

to defendant's testimony that prior to actually speaking to Grace 

Rieker, he was both unaware of the claimant or her injuries. The 

necessary corroboration is provided by the testimony of A1 Rieker, 

whose testimony was that defendant came to the Rieker home and 
told them that before talking to Grace Rieker he had been in 

contact with Ron Fuller and had talked over the Grace Rieker 

injuries. Such testimony is adequate to corroborate that he 

knew of her injury from Fuller, prior to coming to the Rieker 

home. 

The remaining three issues do not go to the actual merits 

of the charges individually but they alleged general procedural 

and prosecutorial improprieties as the basis for the dismissal 

of all charges against defendant. These attacks must be viewed 

against the function of the grand jury. In United States v. I 

Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 38 L ed 2d 561, 569, 

the United States Supreme Court pointed out: 

"A grand jury proceeding is not an adversary hearing 

in which the guilt or innocence of the accused is 

adjudicated. Rather, it is an ex parte investigation 

to determine whether a crime has been committed and 

whether criminal proceedings should be instituted against 

any person.'' 

These alleged improper procedures do not reach the merits 

of the individual charges but rather attack the matter in which 

the otherwise valid criminal charges are determined and instituted 

and are a weak basis for asking for dismissal of the charges. 

The first of these is the request that the criminal charges 

be dismissed for off-the-record statements made by the special 

assistant attorneys general prior to the returning of the indictment. There was no record of what was said because the statute, 

section 95-1406(e)(l), R.C.M. 1947, requires only that the testimony of witnesses be recorded. This session, characterized by 

the district court as a "prep session", could not have resulted 

in the grand jury returning improper or unsupported indictments. 

The state urged the district court to limit its examination to 
the probable cause and the evidentiary support for each count. 

The district court said it "would prefer to do so and leave the 

matter up to the committee on practice but we can not overlook 

the devastating effect of the grand jury indictment of the person 

charged .'I 

While this Court does not overlook the effect of the 

indictment, it cannot uphold the dismissal of otherwise valid 

criminal counts because of possible improper statements made 

to the grand jury prior to the indictment. The merits of invalid 

counts may be challanged individually and the defendant's rights 

thus protected . 

The same may be said of the allegation that there was 

sufficient prosecutorial misconduct to warrant dismissal of the 

indictment. Nothing in the record here approaches this level. 

The admonition of secrecy that was given to witnesses 

before the grand jury was not proper because it did not follow 

the procedure outlined in section 95-1409, R.C.M. 1947. However, 

the requirement was lifted after indictment so that defendant's 

ability to prepare his defense has not been impaired. The district 

court did not expressly base dismissal of the charges on this 

error, it said: 

"While this apparent utter disregard for the orders 

of this court and the requirements of the law may not 

have demonstrably prejudiced the defendant, it is 

nevertheless suspect as an unauthorized intimidation 

of witnesses by the State, which could, if left standing 

or further ignored redound to the prejudice of the 

defendant. This should not be condoned or disregarded 

in considering whether the indictment should be dismissed.'' 

Under the circumstances disclosed here; the error is not 

that fatal. 

The two remaining valid charges are remanded to the district 

court for trial on the merits. 
................................. 

................................. Justices. 

itting in place of Mr. 

Wesley Castles. 
Mr. Justice Gene B. Daly dissenting: 

I dissent: 

There will be a change in the makeup of this Court 

on January 3, 1977. Therefore the Court as presently constituted 

must complete its work assignments no later than Thursday, 

December 30, 1976 at 5:00 p.m. 

The majority opinion in this case was delivered to my 

chambers for study and comment FJednesday, December 29, 1976. 

I was not, previous to receipt of this opinion, accorded an 

opportunity to join with the Court in conference regarding their 

views or to express mine. I have been present at Court at all 

times during which the majority view could have been reached and 

reduced to writing. 

Obviously the time required to research and properly prepare 

a responsible legal dissent to the majority's position is no 

longer available. 

Therefore, I would advise that I have strong views that 

differ from the majority position and wish to reserve the right 

to prepare and file them at a later date. 

..@ 

I% 

- 

Justice.