A lie is a lie: an argument for strict protection against a prosecutor's knowing use of perjured testimony.

AuthorDeVore, Charlie
  1. INTRODUCTION

    A criminal prosecutor is simultaneously an adversary of the defense and an agent of the sovereign. In dealing with testimony or evidence favorable to a criminal defendant, these roles of the prosecutor have conflicting incentives. As an adversary, the prosecutor is interested in achieving a courtroom victory and convincing the fact-finder of the strength of his argument. As an agent of the sovereign, however, a prosecutor's interest must be steadfast, both in convicting the guilty and in acquitting the innocent. The Supreme Court has noted that "though the attorney for the sovereign must prosecute the accused with earnestness and vigor, he must always be faithful to his client's overriding interest that justice shall be done." (2) The prosecutor is the servant of the law, which has the twofold aim that "guilt shall not escape or innocence suffer." (3)

    A zeal for victory has, from time to time, led prosecutors to knowingly present false testimony in pursuit of criminal convictions. When a prosecutor uses perjured testimony to convict a criminal defendant, that criminal defendant's right to due process of law under the Fourteenth Amendment to the U.S. Constitution has been violated. (4) However, a reviewing court must determine that the perjured testimony actually affected the defendant's trial in order to reverse the case. (5) A circuit split has developed around the issue of what test is appropriate to determine when the impact of a prosecutor's knowing use of perjured testimony is significant enough to warrant reversal of the conviction.

    Both sides of the circuit split acknowledge that the perjured testimony must be material to the trial. The Supreme Court established the standard of materiality for a prosecutor's knowing use of perjured testimony in Giglio v. United States: "A new trial is required if the false testimony could ... in any reasonable likelihood have affected the judgment of the jury." (6) However, circuit courts disagree on what should be done after false testimony is found to be material under the Giglio standard. The Ninth Circuit has held that the finding of materiality under Giglio necessarily compels reversal. (7) The court foreclosed the idea of any further analysis after a finding of materiality by asserting that once the Supreme Court has declared a materiality standard for a particular type of constitutional error, there is no need to conduct further analysis. (8) The First and Sixth Circuits, however, have adopted a two-step analysis in determining whether a prosecutor's knowing presentation of false testimony compels reversal of a conviction. First, the court must find that the perjured testimony meets the Giglio materiality standard, and then the court must determine whether, despite a finding of materiality, the use of perjured testimony can be dismissed as hamaless error. (9) The harmless error analysis is more restrictive and makes reversal less likely than under the Ninth Circuit's singular materiality test. This Comment argues that a two-step analysis is inappropriate because it has no foundation in Supreme Court jurisprudence, violates the due process rights of criminal defendants, and removes an incentive for prosecutors to be vigilant in ensuring that they do not present false testimony.

    The Comment will begin in Part II with a discussion of the cases that established and developed the materiality standard for a prosecutor's knowing use of false testimony. Early cases addressing this topic held that a prosecutor's knowing use of perjured testimony was unconstitutional and thus appropriate grounds for reversal. (10) Later cases established and refined the materiality standard for knowing use of perjured testimony. (11) Part III analyzes the cases comprising the circuit split, including the differing factual scenarios and the adequacy of the justifications presented for the reasoning in each case. In Part IV, this Comment argues that the two-step analysis used by the First and Sixth Circuits is inappropriate. Subpart A asserts that the two-step test is not supported by Supreme Court jurisprudence and, further, that the test allows the more restrictive harmless error standard to swallow the carefully calculated materiality standard. Subpart B argues that the two-step test is not sufficiently protective of the due process rights of criminal defendants and that it diminishes the incentive for prosecutors to ensure that they do not present false testimony. This Comment concludes that the Supreme Court should resolve the circuit split and establish that where a prosecutor knowingly presented false testimony at trial and the false testimony was material, there should be no further harmless error analysis.

  2. DEVELOPING THE RULE AGAINST A PROSECUTOR'S KNOWING USE OF FALSE TESTIMONY

    1. THE SEMINAL CASES

      The Supreme Court first addressed a prosecutor's knowing use of false testimony in Mooney v. Holohan. (12) There, the Supreme Court asserted that a prosecutor violates due process if he presents false testimony or deliberately suppresses evidence favorable to the accused. (13) The Court stated:

      [Due process] is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. (14) In these two sentences, the Court laid the foundation for the argument that a prosecutor's knowing use of false testimony is a violation of the due process clause of the Fourteenth Amendment and is therefore unconstitutional. (15)

      In Alcorta v. Texas, the Supreme Court advanced the jurisprudence regarding a prosecutor's knowing presentation of false testimony in two important ways. (16) First, the Court found that the prosecutor's failure to correct false testimony was tantamount to the knowing presentation of false testimony. (17) Second, the Court, for the first time, did what can accurately be described as a materiality analysis. (18) In Alcorta, the Supreme Court, relying on Mooney and Pyle, held that a prosecutor's knowing presentation of false testimony violated due process. (19) The prosecutor in this case artfully asked questions of the key witness to avoid revealing facts that would support the defense's theory that the defendant committed murder under the influence of sudden passion from adequate cause. (20) The Court held that the prosecutor's behavior at trial obscured the truth and was therefore equivalent to presenting false testimony. This holding reinforced the importance of protecting the criminal defendant from a prosecutor's use of false testimony. A violation was found not where a prosecutor presented false testimony but where he had artfully asked questions to obscure the truth. Further, the Court did a materiality analysis, though it did not ascribe this label to the analysis. The Court held that the "petitioner was not accorded due process of law," (21) and then went on to explore the prosecutor's withholding of information known to him, and the likely outcome if the truth had been revealed to the jury. (22) The Court concluded that had the prosecutor not presented false testimony, the offense would likely have been reduced to "murder without malice," and thus would have received a maximum penalty of five years imprisonment rather than the death penalty. (23)

      The Court's materiality analysis in Alcorta foreshadowed scenarios in which a court could conceivably find that a due process violation was so minor as not to require reversal. The Court's analysis of the likely impact of revealing the truth to the jury, followed by an order reversing the case, indicates that the Court did not establish a rule of per se reversal, but rather a rule inviting some analysis of impact of a prosecutor's knowing presentation of perjured testimony.

    2. ESTABLISHING THE CIRCUMSTANCES THAT TRIGGER MATERIALITY

      In Napue v. Illinois, the Supreme Court found that prosecutors are prohibited from using false testimony both when the false testimony applies to the defendant's guilt and when it applies to a witness's credibility. (24) In Napue, the key witness for the State testified falsely that he had not received any consideration or promise in return for his testimony. (25) The prosecutor failed to correct this testimony. (26)

      The Supreme Court reiterated that where a conviction is obtained through the State's knowing presentation of false testimony, there has been a violation of the Fourteenth Amendment; further, this result is the same whether the State solicits the false testimony or allows false testimony to go uncorrected when it occurs. (27) The Court stressed that the prohibition on a prosecutor's knowing use of false testimony "does not cease to apply merely because the false testimony goes only to the credibility of the witness." (28) Both evidence relating to a defendant's guilt and evidence relating to the credibility of a witness may be critical in a jury's determination of guilt or innocence: "it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." (29) To adequately determine whether a witness is testifying truthfully, a jury must know whether the witness bas received some consideration for his testimony. In underscoring the importance of evidence that relates to a witness's credibility, the Court stated:

      It is of no consequence that the falsehood bore upon the witness' credibility rather than directly upon defendant's guilt. A lie is a lie, no matter what its subject, and, if it is in any way relevant to the case, the district...

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