Recantations and the perjury sword.

• Author: Covey, Russell D.
• Position: Elephants in the Courtroom: Examining Overlooked Issues in Wrongful Convictions

Witness recantations pose a special problem in criminal law. Often, trial witnesses come forward, sometimes years after a criminal trial, and admit or allege that the incriminating testimony they gave at trial, and which contributed to the conviction of the defendant at that trial, was false or mistaken. (1) Convicted inmates submit such recantations as new evidence of actual innocence to courts in hopes of winning their release or at least a new trial. (2) Courts, however, are notoriously skeptical of recantation evidence, in part because of finality concerns, but also in part because judges tend to treat such statements as less reliable than the original, in-court testimony that was previously given. (3)

But here, courts have it exactly backward, largely because they misunderstand or underappreciate the extent to which the prosecutorial perjury sword places recanting witnesses in a legal dilemma. How many people, after all, are willing to admit publically that they erred or lied in the past and thereby risk a criminal perjury conviction and possible prison sentence simply to benefit some other person, possibly a complete stranger? In those relatively rare instances in which a witness does willingly recant her trial testimony, such recantations should be granted a presumption of credibility rather than a presumption of falsity or simply dismissed, as they so often are. (4)

What's more, there is little popular appreciation of the extent to which the prosecutorial perjury sword--that is, the credible threat by police and prosecutors to bring perjury charges against witnesses who wish to recant prior statements--can itself be used to induce false witness testimony. (5) Witness statements are not always purely voluntary. Many witnesses must be pressured or induced to give information to the police, and sometimes, the pressure used to extract helpful information crosses over into outright coercion. (6) Regardless of how an initial statement is obtained, however, once a witness has provided a statement under oath, the game is on. The threat of perjury sanctions can be wielded to intimidate recalcitrant witnesses from diverging from the established script. (7) Thus, a single coerced, sworn statement can be used to ensnare a witness like a bear in a trap, leading inexorably from midnight backroom interrogation, to grand jury, to trial. (8) Later, after trial, some witnesses attempt to revoke their earlier testimony, but the perjury sword continues to threaten even then. (9)

There is no easy fix to the dilemma. It is imperative that witnesses testify truthfully at trial, and to the extent that penalties for lying at trial contribute to that goal, it is difficult to argue that they should be completely abandoned. On the other hand, perjury sanctions cannot and should not be used to discourage honest recantations. Trial truth is optimal, but truth delayed is better than no truth at all. The legal system must permit the responsible consideration of recantation evidence, even recognizing that doing so has a cost in terms of finality.

This short essay sets forth the argument for reforming our approach to recantation evidence. Part I discusses how police and prosecutors use the perjury sword to lock in helpful testimony that in some cases is the product of coercion, to compel witnesses to give false testimony at subsequent proceedings, and to intimidate witnesses from changing or retracting their stories. Part II acknowledges some of the challenges police and prosecutors face, particularly when dealing with crimes committed in high-crime, urban contexts, and in domestic violence cases. The perjury sword has proven to be a useful, and perhaps even essential, tool in those situations. Part III suggests some ways in which the use of the perjury sword might be alleviated. These include reducing witness exposure to perjury charges, expanding the recantation defense, and reconsidering how courts evaluate recantation testimony. Finally, Part IV briefly questions whether, at least in certain types of cases, we should remain wedded to a monistic account of truth, or whether sometimes it might be better to recognize the existence of a more pluralistic conception of what constitutes truth in criminal justice.

1. FROM INTERROGATION ROOM TO HABEAS HEARING: RECANTATIONS AND THE PERJURY SWORD

   A witness's recantation is, as a rule, greeted with great skepticism. As evidence goes, recanted testimony is the ugliest stepchild. It has been described as "untrustworthy," (10) "exceedingly unreliable," (11) and deserving "utmost suspicion." (12) As one Virginia court observed, "recantation evidence is generally questionable in character and is widely viewed by courts with suspicion because of the obvious opportunities and temptations for fraud." (13) Recantations are disliked for good reason. They necessarily call the integrity of the law's processes into question. (14) A recantation means either that the witness lied before, or is lying now. One way or another, the recanting witness is a liar, and who needs that? But knee-jerk rejection of recantation evidence is misguided not only because judges tend to misjudge the reliability of recantations, but also because the policy is a major contributor to the abuse by law enforcement officials of what I refer to here as "the perjury sword."

   1. The Prosecutorial Perjury Sword

   Witnesses in criminal trials are required to testify under solemn oath or affirmation. (15) That requirement performs two functions: first, it assures that witnesses appreciate the gravity of the proceedings and the importance of telling the truth. (16) Second, it also subjects the witness to prosecution for perjury for any lies the witness tells. (17) Although the importance of communicating the weightiness of the witness's duty to testify truthfully is obviously a valuable message to get across, it is the second feature of the oath/affirmation requirement that demands further consideration. For although the threat of perjury sanctions is undoubtedly a useful tool to encourage recalcitrant or biased witnesses to disclose facts for the sake of truth that are harmful to themselves or those they care about, or that open them up to retaliation by others, in some cases the threat of perjury can be manipulated by the state in ways that undermine the reliability of criminal proceedings. (18) This latter phenomenon can be seen in cases involving allegations of witness coercion by police officers or other state agents.

   The perjury sword was clearly at work in a relatively run-of-the-mill prosecution for sexual assault against Julian Gutierrez. In a case involving allegations that the defendant improperly touched his fifteen-year-old daughter, the daughter told a grand jury that her stepfather had sexually abused her, but then indicated that she planned to recant those allegations at trial. (19) Upon learning that the daughter was considering changing her testimony, a police officer and a prosecutor from the district attorney's office visited the daughter at school. (20) They told her that she "could be prosecuted for perjury and that her two-year-old son could be taken from her if she did not appear at trial and testify consistently with her previous grand jury testimony." (21) She testified, and the defendant was indicted at trial. (22)

   Or take the well-known Ford Heights Four case. (23) There, an intellectually disabled woman named Paula Gray was coerced into testifying that she had witnessed four of her friends commit a rape and murder, but Gray recanted her statement before trial. (24) The state, which was forced to drop charges against one of the defendants, in apparent retaliation charged Gray with perjury and murder. (25) Gray was convicted, hut the convictions were subsequently reversed and the case remanded on appeal based on a finding that her attorney had a conflict of interest. (26) While awaiting retrial, Gray changed her story again and agreed to testify against the men in exchange for which prosecutors agreed to dismiss the murder charge and allow her to plead guilty to perjury alone. (27) Based in part on Gray's testimony, some of the defendants were convicted. (28) But Gray later told defense investigators that police had coerced her testimony, which, in any event, was proven false, and her recantation true, after DNA testing exonerated Gray and the other four defendants. (29)

   What happened to Gray, and to the Ford Heights Four defendants, follows a standard script that is readily observable in numerous reported cases. Police bring pressure to bear on witness, witness makes statement incriminating defendant, and then later witness seeks to recant statement but prosecutors rattle the perjury sword, keeping the witness in line only to find, later, that a wrongful conviction resulted. Indeed, police pressure on suspects to make initial statements can often be quite intense, as it was in the Troy Davis case. (30) There, sixteen-year-old D.D. Collins was identified as an eyewitness to the shooting of a police officer in Georgia. (31) Troy Davis had been fingered by another person as the shooter. (32) Collins was brought in by police officers for questioning. (33) According to Collins:

   Early Saturday evening, a bunch of cops showed up at my house. There were a lot of them, maybe fifteen or twenty, and a lot of them had their guns drawn. I was scared as hell. They told me that they knew that I was there when the officer was killed and they were going to take me down to the barracks for questioning. An officer put handcuffs on me and put me in the back of the squad car. Like I said, I was scared. I was only sixteen years old. When I got to the barracks, the police put me in a small room and some detectives came in and started yelling at me, telling me that I knew that Troy Davis fired those shots in Cloverdale and killed that officer by the Burger King. I told them that I didn't know nothing (sic) about either of...