Perjury & False Testimony: Defence Guide in Spain

The offence of perjury/false testimony is not a simple lie; it is a direct attack on the administration of justice. As criminal lawyers specialized in perjury/false testimony offences, we know that many proceedings are triggered by poorly managed contradictions or witness stress, not necessarily by any real criminal intent.

Who Can Commit This Offence

The offence is committed by a witness who departs from the truth in testimony given in judicial proceedings. The statement must relate to facts that are relevant to the case: inaccuracies on peripheral or secondary points do not carry the same weight as a falsehood capable of influencing the outcome of the proceedings. This materiality requirement is often the first line of defence to explore.

The Subjective Element: Intent

It is not enough to depart from the objective truth. The Spanish Supreme Court requires proof of the awareness of lying (intent). A misperception, a memory lapse or an inaccuracy are not crimes. The defence must focus on undermining the malicious intent of the defendant.

In practice, the defence works by reconstructing the context of the statement: how much time had passed since the events, what the witness could actually perceive from their position, and whether the alleged contradiction can be explained by stress, fatigue or the pressure of cross-examination. A contradiction between two statements is not, by itself, proof of a lie; the prosecution must establish which of the statements was false and that the witness knew it when testifying.

Timely Retraction

Article 462 of the Spanish Criminal Code (CP) offers a unique way out to the witness who testified falsely in criminal proceedings: if they retract and tell the truth so that it takes effect before judgment is delivered in the main proceedings, they are exempt from punishment. The exemption is reserved for criminal proceedings and does not reach false testimony given in a civil or employment case; and where the false testimony has already deprived another person of their liberty, the penalties one degree lower are imposed instead. It is vital to act quickly.

The retraction must take place before the court hearing the main proceedings and must amount to a genuine rectification: telling the truth, not merely qualifying or softening the earlier account. Acting through counsel allows the rectification to be framed correctly and presented at the right procedural moment.

How These Cases Usually Start

Proceedings for perjury/false testimony are usually triggered by the court that heard the testimony, which refers the matter for investigation when it detects a serious contradiction, or by one of the parties to the original case. The new proceedings are separate from the original ones: the witness becomes a suspect and acquires the full rights of the defence, including the right not to incriminate themselves.

Defence Strategies

• Attacking intent: showing that the inaccuracy stems from a perception error, a memory failure or a misunderstanding of the question.
• Materiality: arguing that the statement concerned peripheral facts with no capacity to influence the decision.
• Timely retraction: assessing whether the exemption of Article 462 CP is still available and preparing the rectification properly.
• Context of the statement: documenting the conditions in which the testimony was given (stress, ambiguous questions, defective interpretation).