Inconsistent Testimony is not Necessarily a Fraud on the Court

Many books, movies, and television shows have been based upon the confrontation that cross-examination offers.  If you have a Hollywood moment and impeach a witness based upon inconsistent testimony, can that witness’s testimony be struck entirely?

This question arose in Mohney v. Eliades where Eliades seemed to be impeach Mohney based upon prior, inconsistent statements.^[1]  Eliades then moved to strike Moheny’s testimony entirely as a fraud upon the court.  The district court granted the motion, eventually leading to an appeal.  The decision was reversed.

There were several problems.  “First, fraud upon the court is generally a basis for setting aside a final judgment under NRCP 60(b)(3).”  This was not the situation presented on appeal.  The other problem was “fraud on the court ‘embrace[s] only that species of fraud which does, or attempts to, subvert the integrity of the court itself.’”  A “true fraud on the court is rare and requires egregious misconduct.”  But “inconsistent testimony, even under oath, generally does not reach that level of fraud.”  Moheny cited Appling v. State Farm Mut. Auto. Ins. Co.’s ruling that “[n]ondisclosure, or perjury by a party or witness, does not, by itself, amount to fraud on the court.”^[2]  Reversal occurred because “there was no evidence that Mohney knowingly made false statements, or that the basis of a claim was unmistakably contradicted by the record.”

The takeaway is that gathering testimony for impeachment is helpful, but far more legwork is required to request a witness’s testimony be struck entirely.

[1] No. 71677, 2017 Nev. App. Unpub. LEXIS 742, 2017 WL 4711956 (Ct. App. October 13, 2017).
[2] 340 F.3d 769, 780 (9th Cir. 2003).