Vol. 8, No. 6, Pg. 40. Recanted Testimony: The Red-Headed Stepchild of Criminal Trial Practice.

• Author: By Harris L. Beach Jr.

South Carolina Lawyer

1997.

Vol. 8, No. 6, Pg. 40.

Recanted Testimony: The Red-Headed Stepchild of Criminal Trial Practice

40RECANTED TESTIMONY: THE RED-HEADED STEPCHILD OF CRIMINAL TRIAL PRACTICEBy Harris L. Beach Jr.One of the most frustrating things that can happen to a criminal defense lawyer is to find out that the witness whose testimony convicted his or her client is now recanting that testimony. However, dealing with the law regarding recanted testimony is more frustrating than the original revelation.

Let's look at an example. A lawyer represents a man who owns a salvage yard and who is charged with six violations of South Carolina Code § 56-29-30 (1976) commonly known as the "Chop Shop" statute. The trial lasts two days, the judge directs a "not guilty" verdict on two of the charges, and the jury finds the defendant "not guilty" of two of the charges but convicts him of the final two charges.

A week after the trial, things begin to unravel. The state's case regarding the two convictions was supported solely by the testimony of a juvenile car thief who admitted that he stole two cars and then sold one to the defendant. He testified that the defendant knew the car was stolen before the defendant purchased it from the juvenile. Afterwards, the police found one of the stolen cars in plain sight on the defendant's salvage lot and determined that the vehicle identification number (VIN) had been switched with another car on the premises. This fact was the basis of the two charges for which the defendant was convicted.

The juvenile goes to see the defendant's lawyer and tells him that he lied on the witness stand. He says that he stole the car, took it to the defendant's property after dark,trespassed onto the property and switched the VIN plates so that he could sell the stolen car to another person. (The stolen car would then have a VIN of a car that was not reported stolen.)

He goes on to tell the lawyer that he was unexpectedly apprehended by the police who induced him to take the stolen car back to the defen dant and sell that car to him. This scenario just happens to be the same story that the defense lawyer tried to argue to the jury. The jury did not believe it and was probably aware that the lawyer had had a difficult time arguing that story with a straight face.

Nonetheless, here is the witness who is willing to swear...