¶1¶45
¶2(concurring) — I concur with the majority in result. Materiality is an element of the crime which must, like all elements of crimes, be decided by a jury as a matter of fact, not by a judge as a matter of law.
¶3*297¶46 However, I also agree with Justice Madsen that there is a role for the trial judge to play here too. Cf. State v. Miller, 156 Wn.2d 23, 31, 123 P.3d 827 (2005) (prosecution for violating a no-contact order). In Miller we held that the judge must be satisfied with the validity of a no-contact order before admitting it into evidence. The jury still had the task of deciding whether the order existed and whether it had been violated. Similar principles apply here. I join Justice Madsen insofar as she would hold that trial judges must be satisfied that the State’s evidence, if proved, establishes the materiality of the alleged perjurious statement before allowing such prosecutions to go to trial.