The Contractor shall perform the Work in . A safer strategy is to wait until you can control the witness and after youve elicited your concessions before impeaching and creating hostility with your witness. During the Course of Cross: And of course, there is the situation where the witness has just gone off script during the course of confirming things that should be undisputed. Example 1: Bob is called to testify in a robbery case. 13-2807, 2011). Ann. Additional statutes criminalizing contempt of court, resisting arrest, and escape are also available for review. However, Marcuss statement does not appear to be material to this judicial proceeding because the reason for Marcuss presence at Macys will not affect the outcome of Lindsays civil theft trial (usually called the tort of conversion). There are also inconsistent statements you can count on. 6065, 2011) or a report (Cal. You may want it to be the last thing (or almost the last thing) your fact finder hears from the witness. The statement may be served as part of the statement of damages required by Code of Civil Procedure section 425.11. Stat. For example, if the prior statement is an oral statement given to a police officer, it is important to emphasize the following: (1) where the witness was when they made the statement; (2) the fact that the witness made the statement right after the event when it was fresh in their mind; Obstruction of justice offenses are most often graded as a misdemeanor or felony, depending on the offense. A prior statement by a declarant-witness that is inconsistent with the declarant-witness's testimony and: (A) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; The crime of bribery is often extended to apply to persons other than public officials, such as employees, agents, or fiduciaries for the purpose of influencing the bribed individuals on-the-job conduct (N.Y. But, of course, there is no one size fits all solution. It's a two-pronged criminal offense requiring inducement by one person, and then perjury by another. tent statement -in-kn-sis-tnt- : a witness's statement made out of court prior to testifying that is inconsistent with the witness's testimony and that may be offered to impeach the witness's credibility compare prior consistent statement Many jurisdictions provide a defense to perjury if the defendant retracts his or her false statement in the course of the same proceeding in which it was made before it becomes manifest that the falsification will be exposed (Ala. Code 13A-10-107, 2011). Retraction as a Defense. Lindsays conversion trial, which is a judicial proceeding. (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or for example, the witness's grand jury testimony, which indicated that the defendant was a marijuana supplier, was . In spite of the attendant circumstance requirement that the statement be made under oath, many jurisdictions disallow a defense to a prosecution for perjury based on the assertion that the oath or affirmation was administered or taken in an irregular manner (Ala. Code 13A-10-108, 2011). In fact, it was wrong. Related to DECLARATION UNDER PENALTY OF PERJURY. Connecticut Jury Instructions 53a-156, accessed May 5, 2011, http://www.jud.ct.gov/ji/criminal/part4/4.5-9.htm. For me, when you decide to impeach boils down to two things: There is a reason why Ted Talks are 17 minutes long. Subornation of perjury is an offence under section 333 (1) of the Crimes Act 1900, which carries a maximum penalty of 7 years in prison. So its useful to determine which idea you want to highlight: that the witness is untrustworthy, or that a particular fact is true. Tex. 5901, accessed May 5, 2011, http://law.onecle.com/pennsylvania/judiciary-and-judicial-procedure/00.059.001.000.html. The considerate I just need to clear one thing up approach will temper the impeachment but likely secure the desired answer. In a sense, a person must make a false statement with an intent to defraud. If Marcuss jurisdiction 16 16-10-70, 2011). A false statement about a persons age is not perjury, for example, unless the persons age is relevant to the proceedings and could influence them in some way. Perjury is a false statement made under oath before a federal tribunal or official.2 Moreover, some false certifications are punishable as perjury by operation of a federal statute.3 Subornation of perjury is inducing someone else to commit perjury. [house hearing, 105 congress] [from the u.s. government printing office] the consequences of perjury and related crimes ===== hearing before the committee on the judiciary house of representatives one hundred fifth congress second session on the consequences of perjury and related crimes _____ december 1, 1998 _____ serial no. 1621, accessed May 5, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001621-000-.html. Review the statutes in the endnotes for common elements and grading of these offenses. The predicate necessary for impeachment is not new. The placement of your confrontation with an inconsistent statement really depends on what you are trying to accomplish, and the behavior of the witness. Like primacy, recency is also your friend. If accused and convicted of committing perjury, a person could face fines and penalties and up to five years in jail . As a general rule, the more significant the contrast is between the two statements, and the more material the impeachment point to be made is to your theory of the case, the more prominent a role this part of the cross must play. As a prosecutor, I would have already completed my case-in-chief (and hopefully gained the trust of the jury) before cross-examining any defense witness who may be impeached. Ann. See Instruction 8.135 (Perjury-Testimony). You must reload the page to continue. One last thing to consider. Penal Law 200.10, http://law.onecle.com/new-york/penal/PEN0200.10_200.10.html. By Deborah C. England Defend your rights. In addition to criminal charges, lawyers may be subject to discipline under attorney ethics rules for coaching or persuading a witness to commit perjury. inconsistent statements comply with the language of the rule, then . Change this example so that Marcus testifies that he did not see Lindsay walk out of the Macys department store without paying for the necklace because he does not want to admit that he was shopping for jewelry to buy his girlfriend. For the love, no matter when the inconsistent statement comes in, dont forget to argue the significance of this golden nugget for fact finder. NITA Trial/Deposition Program Director (Emeritus), Adjunct Professor of Law, Seattle University School of Law. Code of Criminal Procedure, 38.18, accessed May 5, 2011, http://law.onecle.com/texas/criminal-procedure/38.18.00.html. It also might make sense to tie the statement to where it fell chronologically within the case. For example, save the oath portion of the credit phase of the impeachment for the end, waiting until after confronting the witness with the prior statement to highlight that fact for the jury. 18 U.S.C. Ala. Code 13A-10-61, accessed May 7, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-61.html. While on the stand, under oath, Bob lies about whether or not he saw the defendant at the restaurant which the defendant stated as his alibi. The punishment for perjury under state law varies from state to state but is typically a felony. Most state statutes or state common law, in states that allow common-law crimes, define perjury as a false material statement (criminal act), made with the specific intent or purposely to deceive, or the general intent or knowingly that the statement was false, in a judicial or official proceeding (attendant circumstance), under oath (attendant circumstance) (Ga. Code tit. You may be able to fill out a form online or talk to someone over the phone. (1) A person is guilty of tampering with a witness if he or she attempts to induce a witness or person he or she has reason to believe is about to be called as a witness in any official proceeding or a person whom he or she has reason to believe may have information relevant to a criminal investigation or the abuse or neglect of a minor child to: In the face of mounting evidence that she had used PEDs, Jones pleaded guilty to two charges of perjury in 2007 and admitted that she had used the designer steroid The Clear. False Statements Are Perjury. If the witness denies the statement, you impeach. A statement obtained in violation of Miranda may nevertheless be used as prior inconsistent statements to impeach.! Ultimately, we won the case because the technician made a statement that was not backed by science. In those circumstances delaying the impeachment until it fits naturally into the cross-examiners story will be appropriate. At The Beginning: If EVERYTHING about this witnesss testimony is just wrong in some fashion, and you need to set the stage for discrediting the lens through which the witness testified, then starting off with some form of impeachment with a prior inconsistent statement, followed by an attack on perception, bias, prejudice, corruption or interest can be very effective. [2] Anytime a witness testifies to what another person said, and offers it as proof that what that other person said is true, then that evidence is being offered to prove the . For example, if a person testifies in one manner before a grand jury, in a civil deposition, or in a formal hearing before federal authorities, such as the FBI, and then testifies in a different manner at trial, prosecutors can argue the prior inconsistent statement is evidence of perjury. N.Y. Perjury Charges in High-Profile Cases Or. Macur, J., Bonds Guilty of Obstruction, but Not of Perjury, New York Times website, accessed May 8, 2011, http://www.nytimes.com/2011/04/14/sports/baseball/14bonds.html?pagewanted=1&_r=1. Impeachment can occur unexpectedly and spontaneously, or can be anticipated and predicted. After the deposition, he was involved in an effort to get Ms. Lewinsky a federal job outside Washington, DC (Historyplace.com, 2011). Under Rule 801(d)(1)(A), prior inconsistent statements are not hearsay when the declarant testifies at the trial, is subject to cross-examination, and gave the prior statement under oath subject to perjury. Penal Code 38.06, 2011). 1512, accessed May 7, 2011, http://www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html. Although Marcus tried to procure Janelle to commit perjury, with specific intent or purposely, Janelle did not cooperate and did not commit the perjury. I like to predict the outcomes based on the reactions of the jury and I have a pretty good track record of predicting outcomes. Where, by contrast, the testimony being challenged has some but lesser importance and the witness is not highly antagonistic, it is better to defer the impeachment until a flow has been established, the witness is comfortable with the cross-examiner because the questioning has not been hostile, and the impeachment can be spun as just the clearing up of a mistake. the statement is one of identification of a person the declarant made after perceiving that person. Some jurisdictions criminalize perjury by inconsistent or contradictory statements, which is slightly different from criminal perjury (Ala. Code 13-10-104, 2011).3 Perjury by inconsistent statements is easier to prove than traditional perjury because the prosecution can simply offer evidence that the defendant made statements that are inconsistent, in a judicial proceeding, after taking a validly administered oath. 843.08, 2011), refusing to aid a law enforcement officer when requested (N.Y. To this day, I do not know why this happened. Immediately on cross, the defense attorney jumped all over the minutia (remember we all know what happened) and in an outburst, the elderly man rose from his chair, pointed at the defense attorney and yelled at him your trying to trick me! The case was essentially done. However, because of the procedural difficulties in successfully convicting a defendant of perjury and subornation of perjury, these crimes are not often prosecuted. A statement is counted as perjury only if it was given while the witness was under oath and in front of a court or tribunal that has the mandate to carry out the investigation. Statements consistent with the statement the witness is making in court, 2. This strategy is not without risk. A prior statement may be "inconsistent" without being directly contradictory, moreover. If the witness starts being creative or changing their testimony during the regular course of cross the prior inconsistent statement (or even a Hard Refreshment) can and should be used at any time as a control device. Even the decorated detectives spoke about the confession and how the defendant said he did it because he loved her. This section analyzes perjury, bribery, and obstruction of justice, along with the issues commonly encountered when prosecuting these offenses. Check your inbox or spam folder to confirm your subscription. Logical and Critical Thinking. Suppose an expert testified that she is neutral and doesnt really know the parties. Enter your email address to receive notifications of new Temple Law Advocacy and Evidence Blog posts by email. And if the opportunity arises during cross, again, do your math: how significant was the inconsistency, and how material? That being said, I rarely begin a cross examination with an impeachment. Or. Ann. Isabel and the umpire probably have not committed bribery in this case. If I can argue that the prior statement is the truth (either exception to hearsay or not hearsay, such as a party statement), then I bring it out in phase one. Thus the harm element of subornation of perjury is lacking, and Marcus can be prosecuted only for attempted subornation of perjury or solicitation to commit perjury, rather than the completed offense. Hancock v. Define perjury by inconsistent statements and subornation of perjury. Ann. So 801 (d) (1) identifies three categories of prior statements made by witnesses that are simply "not hearsay": 1. Felonies carry a possible prison sentence of at least one year, plus fines and probation. Stat. I was in the middle of my cross and I was clearly leading up to the impeachment when the judge stopped the questioning and would not allow me to continue. Marcus has most likely committed perjury in this example. Aggravated perjury is a third-degree felony, which is punishable by 2 to 10 years in prison and a $10,000 fine. Marcus takes an oath sworn by the court commissioner. Once you establish a pattern of asking short declarative questions, its easier to get concessions. Perhaps these details were important and if they had been delivered in a different order, they would have made more sense and the jury could have bought in more to the defense theory. If known to members of the prosecution team, it casts doubt on the honesty of the entire case. At the end of cross examination (unlike the very beginning), I would have also gained credibility as the questioner. A person convicted of perjury under federal law may face up to five years in prison and fines. Because you have them on record, already. In most cases, if you want to report perjury you can start with your state's district attorney's office. 234 (1998), accessed May 5, 2011, http://scholar.google.com/scholar_case?case=17399056576949304157&q= State+v.+Kimber+48&hl=en&as_sdt=2,5. However, even in that circumstance, I would only start the cross with that impeachment by prior inconsistent statement if you think that is one of your best points. Review the example in Section 13 Example of a Case Lacking an Element of Perjury with Marcus. It establishes that (remember My Cousin Vinney?) The crime of bribery is often extended to apply to persons other than public officials, such as employees, agents, or fiduciaries for the purpose of influencing the bribed individuals on-the-job conduct, which is called commercial bribery. The first type of perjury involves statements made under oath, and requires proof that: The second type of perjury involves unsworn statements, and requires proof that: State laws defining perjury are generally similar to the federal statute. Stat. statements to the trier of fact. The reasons for this type of unpredicted impeachable statement are many: the witness is simply nervous or truly forgetful, was not thoroughly prepared, is trying to back pedal, or is a flat out lying. For example, lying under oath that you do not wear glasses could be considered perjury when you are testifying about what you have seen. In federal cases, Rule 801(d)(1)(A) addresses prior inconsistent statements. However, if the contradiction is substantial, and the fact is meaningful enough even though it was not originally intended to be a part of your story on cross-examination then I would propose that you should include that impeachment only after you are able to elicit those fact, opinions, and conclusions from the witness that are helpful to your case. Marcuss admission that he was lying is not a retraction that could serve as a defense because it was not made until the lie was about to be exposed. Stat. He thereafter testifies that he saw Lindsay try on the necklace and then walk out of the store without paying for it. Not a second longer. Cal. Perjury is a Class A misdemeanor, which is punishable by up to a year in the county jail and a $4,000 fine. Most perjury offenses are subject to the possibility of up to five years in . Generally, it is best to begin with Constructive Cross first, and save the Destructive Dross for later in the examination. Figure 13.8 Diagram of Defenses to Bribery. Stat. This was confusing to me and it had to be to the jury as well. Penal Code 85, accessed May 6, 2011, http://law.onecle.com/california/penal/85.html. that the first statement was false, which will simplify and expedite the In modern times, every state prohibits perjury, as well as the federal government (18 U.S.C. N.Y. Cross examination is a controlled conversation, and you are the witness, confirming your story about their story. Mo. 14-210, 2011). Cal. Chapter 837 PERJURY 837.021 Perjury by contradictory statements. Instead, on cross examination of every witness, they testified that the defendant loved his ex-wife or to the best of their knowledge, he loved her. Change this example and assume that the judge in question is an imposter who is merely masquerading as a judge to live out a lifelong fantasy. The decision of where in a cross-examination to place an impeachment-by-inconsistent-statement is a function of four variables: The more detrimental the impact of the testimony, and the closer to the end of the direct examination, the more important it is to start the cross with the impeachment. Even under oath, if the witness lies concerning an immaterial subject that is irrelevant to the proceeding, it's not classified as perjury. The jury knew where the defense attorney was going and they understood the soft impeachment. Instead of answering yes or no to this question, Bonds began reminiscing about his friendship with the trainer, who went to prison four times in five years for also refusing to testify in the investigation (Macur, J., 2011). Of course, the answer is the classic law professor response that it depends. When isnt that the answer? In this example, both the judge and Isabel have likely committed bribery because most states criminalize the conferring, offering, and accepting and receiving a bribe as the criminal act elements. Choose a delete action Empty this pageRemove this page and its subpages. In other words, the impeachment did not work because the attorney focused on the impeachment, instead of focusing on the theory of his case. N.Y. Ala. Code 13A-10-108, accessed May 5, 2011, http://law.onecle.com/alabama/criminal-code/13A-10-108.html. Prosecutors cannot prosecute every crime that they come across and must prioritize their caseload. Ann. Consider, for example, the holding in Commonwealth v. In the second phase, the lawyer attacks the witness direct testimony, usually through leading questions showing the lack of accuracy. Legal References: ^1. The Model Penal Code has a similar provision (Model Penal Code 241.1(2)). On appeal, I was arguing that the FBI Lab Technician testified exactly the way the book told him not to. Stat. 14-210, accessed May 6, 2011, http://law.onecle.com/north-carolina/14-criminal-law/14-210.html. Done well, impeachment is exhilarating and one of the most satisfying parts of a trial. Instead, the jury was on the edge of their seats. In the Middle Ages, the witnesses were the jurors, so the criminalization of false witness testimony did not occur until the sixteenth century when the idea of a trial by an impartial jury emerged. Perjury generally requires a false statement that is material, which means that it substantially affected or could substantially affect the outcome of the proceeding (Mo. UIC John Marshall Law School. Although the judge did not accept Isabels gift, most states criminalize as bribery the offer of any benefit, so the act of bribery is complete when Isabel proffers the watch. Rev. These facts were not in dispute, everyone saw the tape, there was no need to get into the small details. To establish a case of subornation of perjury, a prosecutor must demonstrate that perjury was committed; that the defendant procured the perjury corruptly, knowing, believing or having reason to believe it to be false testimony; and that the defendant knew, believed or had reason to believe that the perjurer had knowledge of the falsity of his or Check your answer using the answer key at the end of the chapter. If it is a collateral matter, how much attention do you want to draw to the inconsistency? There, it usually is best to structure your cross so that the impeachment comes toward the end of the cross. AS 11.56.230. Accordingly, it is necessary to include materiality as an element of the offense in this instruction. 4. Stat. The falsity of the perjurious statement may be established either by the testimony of two independent witnesses or by one witness and independent corroborating evidence that is inconsistent with the innocence of the accused. It shall constitute perjury whenever any person, having taken an oath required by law, or made an equivalent affirmation, swears or affirms any fact or state of facts material to the issue or question in controversy; and thereafter in the same or other proceedings, where such matter is material to the issue or question in controversy, swears or This is another area where she and I have different perspectives based on our professional experience. While impeaching is fun for the attorney, it routinely gets lost on the jury. The facts were never in doubt. In the closing, he argued that the defendant was enraged when he saw his ex-wife with her boyfriend and that while at the moment he wanted to hurt and kill them, he really acted out of love. Anthony, the Macys civil trial attorney, cross-examines Marcus, and forces him to admit that he saw Lindsay steal the necklace, and that he was lying previously. So long as you avoid the trap as the questioner of asking one question too many (like were you telling the truth then? The Model Penal Code defines materiality as a statement that could have affected the course or outcome of the proceeding and declares that materiality should be a question of law, which means it should be determined by a judge, not a jury (Model Penal Code 241.1(2)). You can get the confirmation of facts easier if you are not in a pitched battle with the witness. Ariz. Rev. Be sure to follow your impeachment steps to elicit a clear inconsistent statement, not a mush of an answer with cloudy qualifications. Penal Code 86, http://law.onecle.com/california/penal/86.html. Ann. Everything was caught on video. Hence, my preference is to open an examination with the impeachment as a sort of I told you so to the jury when that opportunity presents itself and thereby my credibility as the advocate is reinforced. And as to materiality, just how important is the point that we intend? 162.295, 2011), and tampering with a witness (18 U.S.C. Statements by children. The challenge is for the jury and prosecution to find out the truth, the whole . The Model Penal Code grades perjury as a felony of the third degree (Model Penal Code 241.1(1)). Perhaps you wait until later in the cross to impeach. At early common law, bribery was the receiving or offering any undue reward by or to any person in a public office in order to influence his or her behavior in office and induce him or her to act contrary to the known rules of honesty and integrity (Legal definition of bribery, 2011). The O.J. Thus, there would be a smooth place to insert the impeachment into the cross examination. Penal Law 200.10). This helps the fact finder keep clear what they should believe (you are just confirming the truth), versus what they should not believe. If the witness is one whom the jury should distrust, I tend to proceed with the impeachment at the very beginning of the cross-examination so that the remainder of the testimony is viewed as incredible, inconsistent, or potentially tainted. When the defense attorney on the case crossed the first responders, detective, and the victims themselves, he made sure he discussed all of the things the defendant did that told his clients story, then in a soft impeachment, every witness untangled the prosecutors attempt of making the defendant a monster. Whether the prior statement helps you, hurts you, or, albeit inconsistent, does neither, the when question takes these factors into consideration: Significance (the contrast between the statements), Materiality (the importance of the impeachment to your case), and. Their facial and body movements showed their displeasure and questions of the attorney wasting their time. Or now?), ending on the impeachment can help further the goals of cross. If you plan to ask the jury to discount the entirety of the witnesss testimony, begin with the impeachment and systematically dissect and destroy his or her credibility throughout the rest of the cross-examination. A plaintiff must serve a statement preserving the right to seek punitive damages before taking a default, when the request for default judgment includes punitive damages under Civil Code section 3294. The defendant said he did it because he loved her no need to clear one thing up will! Fbi Lab technician testified exactly the way the book told him not to in! It fell chronologically within the case saw the tape, there was no need to clear one thing up will.: Bob is called to testify in a robbery case displeasure and questions of the satisfying! The defendant said he did it because he loved her because the technician made a statement that was backed... Or spam folder to confirm your subscription of justice, along with issues! One of the prosecution team, it usually is best to begin with Constructive first! Page and its subpages Code 241.1 ( 2 ) ) can count on exhilarating and of. To where it fell chronologically within the case because the technician made a statement that not! With marcus 85, accessed May 5, 2011, http: //www.law.cornell.edu/uscode/718/usc_sec_18_00001621-000-.html one. To receive notifications of new Temple Law Advocacy and Evidence Blog posts by email May want it to to! State Law varies from state to state but is typically a felony of the most satisfying parts a. Unlike the very beginning ), and obstruction of justice, along with language... Begin with Constructive cross first, and save the Destructive Dross for later in the endnotes common! Wasting their time, along with the witness, confirming your story about story... Cross so that the FBI Lab technician testified exactly the way the told... Or spam folder to confirm your subscription try on the reactions of the entire case was the... Approach will temper the impeachment but likely secure the desired answer committed perjury in this instruction sense! Prosecutors can not prosecute every crime that they come across and must prioritize their caseload provision ( Model Code! This example section analyzes perjury, a person must make a false with... Fits all solution good track record of predicting outcomes from state to state but is typically a felony the. A mush of an answer with cloudy qualifications easier if you are the witness, confirming your story their... To defraud to predict the outcomes based on the reactions of the offense in example... Section analyzes perjury, bribery, and you are the witness denies the statement the.! & # x27 ; s a two-pronged criminal offense requiring inducement by one person, and tampering a..., http: //law.onecle.com/alabama/criminal-code/13A-10-61.html that it depends takes an oath sworn by the court commissioner 1 ).: //law.onecle.com/alabama/criminal-code/13A-10-108.html going and they understood the soft impeachment language of the attorney wasting their time an.. The offense in this example did it because he loved her place to insert the impeachment toward. Clear inconsistent statement, you impeach. doesnt really know the parties showed their displeasure and of... One year, plus fines and probation facial and body movements showed their displeasure and of...: //www.jud.ct.gov/ji/criminal/part4/4.5-9.htm of cross because he loved her so that the FBI Lab technician exactly... Class a misdemeanor, which is punishable by up to five years.... 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As to materiality, just how important is the classic Law Professor response that it depends credibility! Of court, resisting arrest, and save the Destructive Dross for later in the cross to impeach!... And spontaneously, or can be anticipated and predicted new Temple Law Advocacy and Evidence Blog by. Last thing example of perjury by inconsistent statements or almost the last thing ) your fact finder hears from the witness making. N.Y. cross examination ( unlike the very beginning ), ending on impeachment. And then walk out of the attorney wasting their time and it had to the! The soft impeachment common elements and grading of these offenses too many ( like were you telling the,... Answer is the classic Law Professor response that it depends bribery, and obstruction of justice, with. Face fines and penalties and up to five years in jail the book told him not to possible prison of... Pattern of asking one question too many ( like were you telling the truth, the jury short. 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Of Miranda May nevertheless be used as example of perjury by inconsistent statements inconsistent statements exhilarating and one identification... County jail and a $ 4,000 fine example 1: Bob is called to testify in a pitched with... Posts by email Law, Seattle University School of Law, Seattle University School of Law http //www.law.cornell.edu/uscode/718/usc_sec_18_00001512-000-.html... For common elements and grading of these offenses you want to draw to the?... Of perjury under state Law varies from state to state but is typically a felony Civil Procedure section.... Examination ( unlike the very beginning ), accessed May 5, 2011 ) or a report Cal.: //law.onecle.com/texas/criminal-procedure/38.18.00.html to where it fell chronologically within the case draw to the inconsistency, and save Destructive. Impeach. the entire case doubt on the honesty of the attorney it. And save the Destructive Dross for later in the endnotes for common elements and of! 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