Can Prosecutors Buy Testimony?
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National Association of Criminal Defense Lawyers
The Champion Magazine
RICO Report
May 2005, Page 55
Can Prosecutors Buy Testimony?
By Barry Tarlow
Can a prosecutor pay a fact witness for testimony? Surprisingly, the question has no clear answer, and a split in the circuits has emerged.
The general rules are reasonably clear about the benefits a fact witness can receive, such as money or perhaps most valuable freedom. Prosecutors can promise or grant leniency or immunity to people accused of crimes in exchange for their testimony. United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc) [hereinafter “United States v. Singleton (en banc)”], followed in United States v. Lowery, 166 F.3d 1119 (11th Cir. 1999); United States v. Ramsey, 165 F.3d 980 (D.C. Cir. 1999); United States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998); United States v. Ware, 161 F.3d 414, 418-25 (6th Cir. 1998); United States v. Johnson, 169 F.3d 1092 (8th Cir. 1999). Benefits that are not obviously financial have usually been approved by the courts, and they at least are not viewed by the judiciary as bribery.
An enormous range of benefits have traditionally been granted to informers. Some lucky Chicago gang members-turned-informers brought shame upon the local United States Attorney’s Office when defense lawyers discovered that the informers received heroin, morphine, phone sex with a government paralegal, clothes, gifts, electronics, access to phones, and conjugal visits in government offices in exchange for their “cooperation” in bringing down the notorious El Rukn gang. Sharon Cohen, Sex, Lies, Drugs, Shame: Major Gang Prosecution Unravels in Chicago, L.A. Times, Aug. 15, 1993; see United States v. Boyd, 833 F. Supp. 1277 (N.D. Ill. 1993), aff’d United States v. Boyd, 55 F.3d 239 (7th Cir. 1995). In San Diego, one violent criminal facing a twenty-five year sentence for robbery also received conjugal visits in the prosecutor’s office, as well as numerous day trips outside jail facilities and a special cell in county jail with a color TV, a private shower and a telephone. He even had nude pictures of himself and his wife taken in the DA’s office. See Brae Canlen, Prosecutorial Zeal, Calif. Lawyer 34 (March 1999); see also Marty Graham, S.D. Grand Jury Rips County DA Office in Report: Handling of Informants is Called Overzealous, L.A. Daily J., June 11, 1998, at A1. While these benefits must be disclosed to the defense and while some of the inducements extend far beyond the bounds of propriety, they do not constitute bribery under the current state of the law.
Interestingly, there was a brief period in which it seemed the courts might deter the powerful influence that grants of leniency and other benefits have on a witness’s testimony. In 1998, a panel of the Tenth Circuit including the circuit’s then-chief judge and its most conservative judge held that grants of leniency are “things of value,” and fall within the prohibitions of the federal anti-bribery statute. 18 U.S.C. § 201. In less than 10 days, however, the court granted en banc review and removed the panel’s opinion from the federal reports. United States v. Singleton, 144 F.3d 1343, 1343 (10th Cir. 1998), vacated by United States v. Singleton (en banc), supra, 165 F.3d 1297; See They Said What? Prosecutors Can No Longer Buy Informer Testimony?: RICO Report, The Champion (Sept./Oct. 1998). As discussed more fully below, the en banc court eventually refused to follow a line of precedent concluding that the term “value” covers more than mere economic value and instead broadly held that the statute simply does not apply to prosecutors acting within the authorized scope of their duties.
Regardless of the traditional appropriateness of leniency grants (which defense lawyers obviously lack the power to give), a lawyer’s outright payment for a fact witness’s testimony aside from minor fees and costs is usually a crime under the federal witness anti-bribery statute. See 18 U.S.C. § 201(c). One of the worst abuses in the use of informers occurred in connection with the prosecution of Manuel Noriega. It later came to light that the star witness in his case had indirectly received $1.2 million in drug money and cartel “protection” for his testimony. Of course, his alternative to testifying wasn’t prison; it was lead. See Michael Isikoff and Peter Katel, A Deal With the Devil: Did the Feds Use the Cali Cartel to Get Noriega?, Newsweek 59 (Oct. 30, 1995). In Mexico, such a transaction is euphemistically referred to as a choice “entre la plata y el plombo,” that is, the choice is between silver and lead.
Does the anti-bribery statute apply to prosecutors? After all, political realities aside, why should it not? What, for example, would happen if a defense lawyer paid a witness $5000 for truthful testimony? The terms of the provisions of § 201, also known as the anti-gratuity statute, seem clear at first glance: (c) Whoever . . . (2) directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath . . . as a witness upon [any] proceeding, before any court . . . , or for or because of such person’s absence therefrom; [or] (3) directly or indirectly, demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of the testimony . . . or for or because of such person’s absence therefrom . . . shall be fined under this title or imprisoned for not more than two years, or both. 18 U.S.C. § 201(c)(2),(3). Unlike the companion provision governing gratuities given to public officials, see 18 U.S.C. § 201(b), subsection (c) does not ostensibly include the requirement that the gratuity be “corruptly” given. See also United States v. Irwin, 354 F.2d 192, 195 (2d Cir. 1965) (“Many of the [anti-bribery and anti-corruption] provisions were placed in § 201. . . . Subsections (f) through (i) [including subsection (h) which was the predecessor to subsection (c)(2)] define offenses concerning which there is no mention of intent to influence or induce.”). Further, even if testimony must be shown to be given corruptly, it need not be shown to be false. See United States v. Donathan, 65 F.3d 537, 540 (6th Cir. 1995). If the word “Whoever” covers prosecutors or law enforcement authorities and a payment is something “of value,” § 201 would seem simply to prevent government agents from purchasing witness testimony.
Prohibiting cash payments to witnesses would seem fair and reasonable enough. General rules governing the practice of law have long prohibited lawyers from paying fact witnesses to testify, except for reimbursement of fees and costs. While the rules might even allow reimbursement for lost wages, see ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 96-402 (1996) (nonexpert witness can be compensated for time spent attending trial), ethical canons condemn economically influencing witnesses. See Best Evidence Money Can Buy: Ethical Rules and Witness Payments: RICO Report, The Champion (April 1995).
For example, a past version of the model canon of legal ethics mandated,“[a] lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the testimony or the outcome of the case.” ABA Mod. Code of Prof. Responsibility DR 7–109(C). Currently, ABA Rule 3.4(b) states that “lawyer[s] shall not . . . offer an inducement to a witness that is prohibited by law.” ABA Ann. Mod. R. Prof. Cond., R. 3.4(b) (4th ed.). The new rephrasing ostensibly allows prosecutors and defense attorneys to pay witnesses as long as the payment is not prohibited by law. Regardless of the ethical rules of the states, however, federal prosecutors historically have not heeded state bar rules, at least until the furor that arose over the Thornburgh Memorandum. Federal Prosecutors No Longer Subject to Thornburgh Memorandum: RICO Report, The Champion (June 1999); see United States v. Lopez, 4 F.3d 1455, 1458 (9th Cir. 1993) (“[T]he government . . . has prudently dropped its dependence on the Thornburgh Memorandum . . . and has thereby spared us the need of reiterating the district court’s trenchant analysis of the inefficacy of the Attorney General’s policy statement”); Larry D. Thompson, McDade Law Is Good for the Profession, The Champion 22 (2001) (“The DOJ’s position was strongly criticized by the Conference of Chief Justices representing all 50 state supreme courts and solidly rejected by federal courts.”).
Are Prosecutors People Too?
Surprisingly, in the widely cited en banc opinion of the Tenth Circuit, United States v. Singleton (en banc), supra, 165 F.3d 1297, the majority concluded that the federal witness anti-gratuity statute does not apply to prosecutors acting within their authority. According to this strained interpretation, prosecutors are the alter ego of the United States, which is not a “who” covered by the first word of the statute, “Whoever.” Id., at 1300, 1302. This broad-reaching analysis has been shamelessly applied to the circumstance of cash payments.
Sonya Singleton was accused of being part of a cocaine smuggling conspiracy, because she transmitted drug proceeds by wire transfers through Western Union. Her associate Napoleon Douglas became a snitch and “entered into a plea agreement in which he agreed to testify truthfully in return for the government’s promise not to prosecute him for related offenses, to advise the sentencing court of his cooperation, and to advise a state parole board of the ‘nature and extent’ of his cooperation.”
United States v. Singleton (en banc), 165 F.3d at 1298. Because Douglas’s testimony was premised upon a grant of leniency, which Singleton thought was something “of value,” she moved to suppress his statements on the ground that they were obtained in violation of § 201(c)(2). After she lost the motion, Singleton was convicted of conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846, and money laundering in violation of 18 U.S.C.
§ 1956(a)(1)(B)(I). She was sentenced to forty-six months in prison and a term of supervised release. See United States v. Singleton, 144 F.3d 1343, 1343 (10th Cir. 1998), vacated by United States v. Singleton (en banc), supra, 165 F.3d 1297. On appeal, she sought a review of her challenge to the use of leniency to obtain prosecution-friendly witness statements. On July 1, 1998, a panel of the Tenth Circuit including then-Chief Judge Stephanie K. Seymour and Circuit Judges David M. Ebel and Paul J. Kelley, Jr., set off a brief firestorm around the country by issuing an opinion adopting Singleton’s argument under § 201(c) and condemning the prosecutorial payoffs. See They Said What? Prosecutors Can No Longer Buy Informer Testimony?: RICO Report, The Champion (Sept./Oct. 1998). Notably, Judge Kelly, who wrote for the panel, was a George H.W. Bush appointee, and Judge Ebel was a Reagan appointee who had clerked for Supreme Court Justice Byron White. However, just nine days later the opinion was vacated when the court granted a rehearing en banc. See United States v. Singleton, 144 F.3d 1343, 1343 (10th Cir. 1998), vacated by United States v. Singleton (en banc), supra, 165 F.3d 1297.
What was the en banc majority’s reasoning? Reagan appointee and former Colorado Attorney General, Circuit Judge John C. Porfilio wrote that AUSAs are not mere lawyers for the government. By federal law, the court lacks jurisdiction to hear a criminal case “unless it is filed and prosecuted by the United States Attorney or a properly appointed assistant. Therefore, the government’s sovereign authority to . . . conduct a prosecution is vested solely in the United States Attorney and his or her properly appointed assistants.” United States v. Singleton (en banc), 165 F.3d at 1300. As an organization, a government cannot function except through its authorized agents; they compose it. The majority concluded that when an accused receives an offer of leniency, he receives it not from the AUSA but from the United States. In the view of the majority, the United States is not a “who” covered by the statutory term “Whoever,” it is a “what,” and in any event principles of sovereign immunity preclude the United States from subjecting itself to its own criminal penalties (at least without an explicit statement to the contrary). Id., at 1300–01. Accordingly, the court concluded § 201(c) simply does not apply to prosecutors acting within their authority and not ultra vires.
Other circuits agree with the result reached in Singleton (en banc) that prosecutorial grants of leniency in exchange for testimony do not violate § 201(c). See, e.g., United States v. Lara, 181 F.3d 183, 198 (1st Cir. 1999); United States v. Lowery, 166 F.3d 1119 (11th Cir. 1999); United States v. Ramsey, 165 F.3d 980 (D.C. Cir. 1999); United States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998); United States v. Ware, 161 F.3d 414, 418-25 (6th Cir. 1998); United States v. Johnson, 169 F.3d 1092 (8th Cir. 1999). Yet the Tenth Circuit penned a far-reaching rule. In defending the grants of leniency, it said that § 201(c) simply does not apply to prosecutors. Does this mean that prosecutors can make cash payments for witness testimony?
In United States v. Lott, 310 F.3d 1231 (10th Cir. 2002), Judge Ebel, who sat on the original Singleton panel and dissented from the en banc majority opinion, was compelled to follow the en banc opinion. Gary Lott was convicted of conspiring to manufacture and distribute methamphetamine. While the case was being investigated, law enforcement agents paid informer Judy Jackson to make controlled buys of methamphetamine from Lott’s brother Johnny. Jackson then appeared at trial to testify about what she knew about the operation. Id., at 1236. Although Lott moved to suppress her testimony citing 18 U.S.C. § 201(c) based on her receipt of a promise of leniency and $3450 in cash, the trial court was unmoved.
Lott was convicted and sentenced to life in prison. On appeal, he argued that the cash payments to Jackson violated the anti-gratuity statute. The Lott panel responded that cash payments to a prosecution witness do not violate § 201(c) at least so as long there is no proof that the payments are specifically for the testimony. Id., at 1245. Because Lott could not produce Jackson’s plea agreement showing that the cash payment was for testimony, and because the FBI provided some evidence that it had reimbursed Jackson for expenses, Lott could not establish that the prosecution had directly bought the testimony. Id., at 1245 n.10. Since there was no demonstrable violation of § 201(c), the panel affirmed the trial court’s refusal to suppress the informer’s testimony. Disturbingly, the Lott panel was unable to commit even to the simple principle that the statute would ban a prosecutor from paying for testimony. Instead, it reserved the question for another day. Id.
Leniency, Not Cash, Is The Lawful Coin Of The Realm
Fortunately, other courts are putting the brakes on this gravy train. Even conservative judges such as Richard A. Posner and Frank H. Easterbrook of the Seventh Circuit, have deemed the apparently inevitable result of Singleton (en banc), namely, straight cash payments, to be unacceptable. This past June, in commenting on a prosecutorial payment Chief Judge Posner said, “To pay a witness, other than an expert witness, for his testimony is irregular and in fact is unlawful in federal trials, 18 U.S.C. § 201(c)(2) . . . .” Mataya v. Kingston, 371 F.3d 353, 359 (7th Cir. 2004) (citing United States v. Condon, 170 F.3d 687, 698 (7th Cir. 1999)).
Randall Mataya was a habeas corpus petitioner who was serving a life sentence for the murder of Pamela Claflin. The star witness in his case had been Donald Hertel, a ten-time convict who was paid $1000 and given a helpful letter to the parole board for his cooperation and testimony in the case. Mataya v. Kingston, 371 F.3d at 354–55. The key issue in the federal appeal concerned Brady disclosures. (The defense was never told that four burglary charges had been dropped in exchange for Hertel’s testimony, and Judge Posner engaged in a lengthy analysis of whether this discovery violation required reversal.) In important dicta, however, the panel unhesitatingly remarked that “[p]aying for testimony, as well as concealing evidence of inducements given to a government witness, are breaches of prosecutorial ethics, * * * [and] [t]o pay a witness . . . for his testimony is irregular and in fact is unlawful in federal trials . . . .” Id., at 359.
The panel emphasized, “[t]o pay in money [is forbidden]; immunity from prosecution, a lighter sentence, placement in a witness-protection program, and other breaks are lawful coin in this realm.” Id. While the panel ultimately concluded that the payment in Mataya and the prosecutor’s other errors did not require reversal, it at least took a stand against the unethical tactic of using cash payments.
The text of the Mataya panel’s opinion permits prosecutorial distributions of non-cash benefits. While they might violate state bar ethical rules and create problems for AUSAs pursuant to the McDade Amendment, see 28 U.S.C. § 530B(a), quoted in United States v. Condon, 170 F.3d 687, 690 (7th Cir. 1999) (requiring attorneys for the federal government to comply with state bar ethical rules), they do not fall within the Seventh Circuit’s reading of the anti-gratuity statute. Even so, many jurisdictions take violations of state ethical rules “quite seriously and have utilized suppression as a remedy/sanction.” Ethical Restraints on Law Enforcement Contact with Corporate Employees: RICO Report, The Champion (Dec. 1999) (citing RICO Reports, The Champion (Sept./Oct. 1997, March 1995, August 1993, June 1993, Sept./Oct. 1992)).
How, according to the Seventh Circuit, can cash payments by prosecutors for testimony in federal trials violate § 201(c)? On this point, Judge Posner cited to the earlier opinion of Judge Easterbrook in United States v. Condon, supra, 170 F.3d at 689, which shied away from the Singleton (en banc) panel’s strained reading of “Whoever.” “Convicted of conspiracy to defraud the Internal Revenue Service by skimming cash from a chain of martial arts schools, Thomas Condon . . . conten[ded] that 18 U.S.C. § 201(c)(2), forclose[d] testimony from witnesses who were promised immunity from prosecution (or lower sentences) in exchange for their cooperation.” Id., at 688. The Condon panel cited Nardone v. United States, 302 U.S. 379 (1937), for the well settled proposition that the term “whoever” refers to “agents of the United States unless application of the statute would ‘deprive the sovereign of a recognized or established prerogative title or interest’ or ‘a reading which [includes the government] would work obvious absurdity.’ ”
United States v. Condon, 170 F.3d at 689 (quoting Nardone v. United States, 302 U.S. at 383–84).
The Condon court, like the panel in Singleton (en banc), considered in passing the theory that some FBI or AUSA inducements and actions might be authorized acts in the ordinary course of their duties, such that “whoever” does not include the prosecutors because they act on behalf of the government. If this were the best interpretation of the statute, the court could reason that a reading of § 201(c) purporting to criminalize the inducements could preclude those prerogatives or create an absurdity. United States v. Condon, 170 F.3d at 689–90. Instead of going this route, however, the panel found better support for another solution to the problem. Looking to its earlier opinion in United States v. Barrett, 505 F.2d 1091, 1100–03 (7th Cir. 1974), which construed the predecessor statute to § 201, the panel found that “[f]orgoing criminal prosecution (or securing a lower sentence) is not a ‘thing of value’ within the meaning of § 201(c)(2).” United States v. Condon, 170 F.3d at 689.
This rather strained reading of the phrase “thing of value” permits a harmonization of § 201(c) with a variety of federal statutes, including the Witness Relocation and Protection Act, portions of the Sentencing Reform Act of 1994 allowing the lowering of sentences, 18 U.S.C. § 3553(e), 28 U.S.C. § 994(n), Federal Rules of Criminal Procedure 11 and 35(b) concerning plea agreements and reductions of sentences for substantial assistance, respectively, and U.S. Sentencing Guideline § 5K1.1, concerning downward departures from the now advisory guidelines in exchange for substantial cooperation. United States v. Condon, 170 F.3d at 689; but see United States v. Booker, _ U.S. _, 125 S. Ct. 738 (Jan. 12, 2005) (holding the United States Sentencing Guidelines to be unconstitutional in their present form). Accordingly, the Condon panel held that grants of leniency do not trigger § 201, regardless of the prosecutor’s official title and role. Notably, and unlike the Singleton (en banc)-Lott line of cases, this analysis permits prosecutors to grant non-economic leniency to witnesses, but clearly prohibits monetary payments.
You Generally Can’t Pay, Unless Congress Says It’s OK
So long as the question concerning cash payments and § 201 is still an open one, there is a third solution to consider. In a concurring opinion in Singleton (en banc) joined by former Oklahoma Attorney General and current Circuit Judge Robert H. Henry, Circuit Judge Carlos F. Lucero found the majority’s broad interpretation of federal agents’ alter ego status to be inconsistent with the Supreme Court’s opinion in Nardone. United States v. Singleton (en banc), supra, 165 F.3d at 1303, 1304 (Lucero, J., concurring). To allow AUSAs, FBI or IRS agents, and almost any federal employee who transfers a benefit on behalf of the prosecution to be the alter ego of the United States is to allow the narrow exceptions in Nardone to swallow the general rule that federal agents are individuals covered by the term “whoever.” Id., at 1304. It also is not absurd to suggest that “a prosecutor who corruptly bribes a witness to supply false testimony is liable” under the statute. Id.
While § 201 is a statute of general application, however, various federal statutes specifically authorize the government to offer leniency and other benefits to would-be defendants. Id., at 1305–06. For example, in 18 U.S.C. §§ 6001–6005, Congress has authorized immunity in exchange for testimony. The statutes cited by Judge Easterbrook, like those concerning the Rule 11 plea negotiation process and the Witness Protection Program, also authorize prosecutors and law enforcement officers to promise or give enumerated benefits. As a principle of statutory construction, when a conflict arises between a specific and a general statute, the specific governs. So, to the extent of the specific grants of prosecutorial and law enforcement powers, § 201 generally will not control the legality of the prosecution team’s conduct. United States v. Singleton (en banc), 165 F.3d at 1305–06 (Lucero, J., concurring); compare United States v. Martinez-Medina, 279 F.3d 105, 118 (1st Cir. 2002) (“As to the statutory issue, it is entirely doubtful that 18 U.S.C. § 201(c)(2) applies at all to the government, but in all events Congress has explicitly authorized the Attorney General to provide for the relocation and protection of witnesses that may be in danger [under the] (Witness Relocation and Protection Act).”) (citations omitted).
In passing, Judge Lucero also recognized that “[w]hen granted statutory immunity [or some other benefit], the potential witness is given something of value by the government in that his immunized testimony cannot be used to prosecute him.” Id., at 1306. So unlike the Condon analysis, Judge Lucero was not hemmed in by an economic view of the law.
This analysis has three advantages. First, it avoids the murky issue of when a government agent acts outside the scope of their authority. Second, it recognizes that recipients of leniency, immunity and similar rewards receive actual benefits. Immunity is something of value under the plain language of the statute and can be as effective in manipulating testimony as a straight cash payment. Third, the analysis recognizes that common cash payments to fact witnesses not covered by other specific provisions are prohibited by § 201. Given the analyses set forth by the Mataya and Condon panels and the concurring opinion in Singleton (en banc), there is hope that courts will prevent prosecutors from actually buying testimony.
A Bribe Is A Bribe,Truth Or Falsity Aside
Until recently, a prosecutor might have deemed the whole question to be a moot point. Prosecutors claim they are simply offering truthful testimony, which arguably might not fall under the statute. At least one U.S. district court suggested as much in Golden Door Jewelry Creations, Inc. v. Lloyd’s Underwriters, 865 F. Supp. 1516, 1523–24 (S.D. Fla. 1994); see Best Testimony Money Can Buy: Ethical Rules and Witness Payments: RICO Report, The Champion (April 1995).
In United States v. Blaszak, however, the Sixth Circuit recently disagreed with Golden Door and affirmed a ruling that a potential witness violates § 201(c)(3) when he accepts money for offering truthful testimony and evidence. United States v. Blaszak, 349 F.3d 881 (6th Cir. 2003). Of course, the person prosecuted was not an informer.
James Blaszak was a lawyer who approached RE/MAX International when the company was the plaintiff in a large civil antitrust action. Blaszak offered to provide truthful testimony and documents clearly showing the defendant’s liability for antitrust remedies. In exchange, he wanted $500,000 and a small monthly retainer. The actual content of his testimony was not negotiable; he intended to tell the truth. Id., at 883. Unpersuaded, RE/MAX informed the authorities. Following an FBI sting of this hardened truth-teller, Blaszak pled guilty and was sentenced to three years’ probation.
On appeal, Blaszak first argued that § 201(c)(3) is an impermissible content-based restriction of the freedom of speech. He reasoned that it is improper for prosecution witness to be able to be compensated for their testimony, see United States v. Ware, 161 F.3d 414, 418–19 (6th Cir. 1998), while witnesses for criminal defense lawyers and civil litigants cannot receive economic benefits for their free speech. United States v. Blaszak, 349 F.3d at 884. Side-stepping the First Amendment problem and the ultimate issue of whether prosecutors can pay for testimony, the court noted that the law did not restrict speech, but rather restricted the act of payment. Witnesses can say whatever they want, but if you’re a criminal defense lawyer, you ostensibly cannot pay them to do it.
Interestingly, Blaszak also argued that the law, as applied to truthful testimony, violates the Fifth Amendment guarantee of due process because there was no fair warning that it barred such payments. Courts largely had not addressed the question, and the district court in Golden Door suggested that truthful testimony was not covered. Disagreeing with Golden Door, the Blaszak panel reasoned that § 201(c)(3) is a lesser included offense of § 201(b)(4), which proscribes the bribery of public officials. In United States v. Donathan, 65 F.3d 537 (6th Cir. 1995), the Sixth Circuit held that the government need not prove that the public official’s testimony was false to obtain a conviction under subsection (b)(4). What is true for the greater is true for the lesser. Accordingly, testimony need not be false to be covered by § 201(c). United States v. Blaszak, 349 F.3d at 887. The point is that public proceedings not only should be free from lies, but also should be free from the appearance of impropriety that comes with cash payments and that undermines confidence in the system. It therefore is no answer to say that prosecutors need not worry about the statute if they believe they present truthful testimony. In so doing, they taint the judicial system.
The question remains, Can a prosecutor pay a fact witness for testimony? Fortunately, the generally preferred answer to the latter question seems to be, “No.” Section 201 should apply to prosecutors, just as it does to criminal defense lawyers, and cash payments by either to their witnesses appear to be illegal. Of course, there is a practical roadblock to equal application of this statute. After all, who will charge and prosecute an AUSA for violating § 201(c)? There is, however, a serious obstacle that could well deter prosecutors from buying testimony. As the Thornburgh Memorandum fiasco demonstrated and the McDade Amendment reinforced, see 28 U.S.C. § 530B(a), federal prosecutors must now be extremely sensitive to whether their conduct violates state ethical standards such as ABA Ann. Mod. R. Prof. Cond., R. 3.4(b) (4th ed.), and, if so, to what discipline they might be subjected.
False Testimony And The Prosecutor’s Duty To Correct The Record
The Supreme Court “has long recognized the ‘serious questions of credibility’ informers pose.” Banks v. Dretke, 540 U.S. 668, 702 (2004) (citations omitted). As a career prosecutor, Judge Stephen S. Trott repeatedly cautioned that “criminals are likely to say and do almost anything to get what they want, especially when they want to get out of trouble with the law.” Stephen S. Trott, U.S. Dep’t of Justice, Prosecution of Public Corruption Cases 117–18 (Feb. 1988). Informers will “will even book their own mother” to get out of trouble. United States v. Bernal-Obeso, 989 F.2d 331, 337 (9th Cir. 1993) (Trott, J.); see Stephen S. Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L.J. 1381, 1385 (1996), cited in Banks v. Dretke, 540 U.S. at 702. Similarly, although many law enforcement officers testify truthfully, it is well known that some officers will readily commit perjury to obtain convictions. In short, perjury is and has been endemic in our criminal justice system. See Tarlow, “Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility in a Perjury-Plagued System,” 26 Hastings L.J. 917 (1975), cited in Polygraph Evidence: The Search for Truth in a Perjury-Plagued Justice System: RICO Report, The Champion (Dec. 1995).
What is a prosecutor’s obligation if he believes a witness will or has presented false or misleading testimony? Many prosecutors and defense lawyers still labor under the false impression that if the prosecution simply provides the defense with Brady/Giglio material to impeach a lying witness, they have satisfied their constitutional obligations. They incorrectly assume that once the prosecution turns over the exculpatory material, the defense bears the burden of exposing the lie. See, e.g., Belmontes v. Woodford, 350 F.3d 861, 881 (9th Cir. 2003) (“The state argues that the prosecution had no duty to correct the record because defense counsel was notified of the drunk-driving arrest at a pretrial hearing.”).
This is quite simply wrong. The Constitution requires prosecutors to seek justice rather than victory. As the Supreme Court recently reaffirmed, “the prosecution’s ‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice.’ ” Banks v. Dretke, 540 U.S. at 694 (quoting Giglio v. United States, 405 U.S. 150, 153 (1972), in turn quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935) (per curiam)). In proceedings before the trial court, a “prosecutor has an independent, constitutional duty to correct testimony he knows to be false. [On appeal, i]f there is ‘any reasonable likelihood that the [known] false testimony could have affected the judgment of the jury,’ the conviction must be set aside.” Belmontes v. Woodford, 350 F.3d at 881 (quoting United States v. Agurs, 427 U.S. 97, 103 (1976); citing Napue v. Illinois, 360 U.S. 264, 269–70 (1959); Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d 1109 (9th Cir. 2001)). Indeed, “if it is established that the government knowingly permitted the introduction of false testimony, reversal is virtually automatic.” United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991) (citing Napue v. Illinois, 360 U.S. at 269; United States v. Stofsky, 527 F.2d 237, 243 (2d Cir. 1975), cited in New Trial Motions Based on Evidence of Perjury: What Standard Applies?: RICO Report, The Champion (Oct. 2000).
What is more, the prosecution cannot even refuse to develop evidentiary leads that it believes would expose a witness’s lies. Whenever the prosecution has “notice of the real possibility” that its witness is misleading or intends to mislead the court or jury, the Due Process Clause requires it to conduct an investigation to determine whether the testimony is false and to expose any falsehood it finds. Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d at 1118 (Trott, J.), discussed in The Highwayman Visits the Marianas: Informers Beware: RICO Report, The Champion (June 2001). This RICO Report reviews these prosecutorial obligations.
Beyond Disclosure To The Defense: Remembering Napue
In modern litigation, whether civil or criminal, cases often stand or fall upon discovery and motion practice. So it is not surprising that so much case law is devoted to prosecutors’ discovery and disclosure obligations as set forth in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Due Process, however, does not end with the disclosure of evidence to the defense. In the often overlooked decision of Napue v. Illinois, 360 U.S. 264 (1959), the Supreme Court long ago held that a prosecutor has the duty to set the record straight when its witness misleads the court or the jury. Simply informing the defense about impeachment evidence is not enough. Although the task of outing one’s own witnesses is surely uncomfortable, that is what Due Process requires.
In Napue v. Illinois, Henry Napue was tried for murder. Early one morning in August 1938, he and three others, including the state’s key witness George Hamer, walked into a Chicago bar and announced their intention to rob the place. An off-duty police officer drew his gun and fired, and in the ensuing shootout, the officer was killed. The men fled, but the police eventually caught up with Hamer. After pleading guilty to murder, he received a 199-year sentence. Id., at 265.
Later, authorities charged Napue with the same murder. The case turned on eyewitness identifications that were problematic due to the dim lighting in the bar, the circumstances of the shootout and the passage of time. Most of the eyewitnesses had moved and were unavailable. So Hamer’s testimony was especially important.
“The more things change, the more they stay the same.” Alphonse Karr (French author, 1808-1890). During Hamer’s cross-examination, Napue’s lawyer asked, “Did anybody give you a reward or promise you a reward for testifying,” to which Hamer provided the usual answer: “There ain’t nobody promised me anything.” Id., at 267 n.2. On redirect, the prosecutor emphasized the response by asking,“Have I promised you that I would recommend any reduction of sentence to anybody,” and Hamer said: “You did not.” Id. “On the basis of the evidence presented, which consisted largely of Hamer’s testimony, the jury returned a guilty verdict and [Napue] was sentenced to 199 years.” Id., at 266.
In fact, however, Hamer received some promises of leniency from the prosecutor. These promises came to light in a post-conviction petition filed by the prosecutor on Hamer’s behalf, in which the prosecutor “alleged that as prosecuting attorney he had promised Hamer that if he would testify against Napue, ‘a recommendation for a reduction of [Hamer’s] sentence would be made and, if possible, effectuated.’ ” Id., at 266. When Hamer said he would not “cooperate any further unless he were given definite assurance that a recommendation for reduction of his sentence would be made,” the prosecutor struck a deal. Id., at 266 n.1.
After Napue learned of the deal from the comfort of his jail cell, he filed a petition arguing that he had been denied Due Process when Hamer lied on the stand and the prosecutor knew about it. By the time the case reached the Supreme Court, it was undisputed that Hamer testified falsely. The state largely relied upon the argument that no prejudice resulted because the jury was informed that a public defender intended to seek leniency on Hamer’s behalf.
Rejecting this argument, the Supreme Court observed, “it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Id., at 269 (citing, inter alia, Mooney v. Holohan, 294 U.S. 103 (1935)). According to the Court, “[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. at 269 (citing, inter alia, Alcorta v. Texas, 355 U.S. 28 (1957)).
Reviewing the testimony as to Hamer’s bias, the Court held that the rule is not limited to exonerating evidence. Instead, “[t]he principle . . . [is] implicit in any concept of ordered liberty [and] does not cease to apply merely because the false testimony goes only to the credibility of the witness.” Id., at 269. False, uncorrected testimony as to a witness’s bias violates Due Process just as much as false, uncorrected evidence wrongly incriminating the accused.
The Court concluded that the false testimony and misconduct was prejudicial. Recognizing that evidence of a defense lawyer’s mere efforts to seek leniency for a client is less weighty than evidence of an actual offer of leniency, the Court held that the latter could have changed the jury’s assessment of the witness. Id., at 270.
The rule has since been applied to false, uncorrected expert testimony about physical evidence, see Miller v. Pate, 386 U.S. 1 (1967), and prosecutors’ misstatements as to whether they offered leniency to witnesses, see Giglio v. United States, 405 U.S. 150 (1972).
Correcting Falsehoods In The Ninth Circuit
If the Napue Court’s holding was noteworthy in 1959, perhaps before plea agreements became so common, it surely is important today. Even though it was established 45 years ago by the Supreme Court, the lesson of Napue seems lost on some prosecutors. In 2003, for example, the state was still arguing to the Ninth Circuit that Due Process requirements are satisfied by mere disclosure to the defense, and correction of falsehoods in open court is not necessary. See, e.g., Belmontes v. Woodford, 350 F.3d 861, 881(“The state argues that the prosecution had no duty to correct the record because defense counsel was notified of the drunk-driving arrest at a pretrial hearing.”).
Fortunately, federal courts have less trouble remembering and enforcing Napue. In United States v. Alli, 344 F.3d 1002 (9th Cir. 2003), the panel clearly reaffirmed that regardless of any objection by defense counsel and the full disclosure of Brady/Giglio evidence, the prosecution must step forward and correct known false or misleading statements in open court. See id., at 1007 (citing United States v. LaPage, 231 F.3d 488, 492 (9th Cir. 2000)).
Julius Alli was charged with making false, fictitious or fraudulent claims on the United States, in violation of 18 U.S.C. § 287, as well as conspiracy in violation of 18 U.S.C. § 371. He, his wife and a few others concocted a scheme to claim phoney tax credits by obtaining names and social security numbers, filing false tax forms and collecting the refund checks. United States v. Alli, 344 F.3d at 1004. The scam, for which Alli earned himself a sentence of nearly 6 years in prison, “netted him no more than a few thousand dollars.” Id., at 1001–02.
At trial, two of the co-conspirators, Ezekial Oyegoke and Emmanuel Ogunde, testified against Alli. Each of them had a cooperation agreement. When Alli’s lawyer cross-examined about their biases, each denied they were promised sentencing benefits in exchange for their testimony. After the defense confronted them with their plea agreements, which revealed their testimony to be false, one witness admitted his error while the other refused. The documents were not offered as evidence. Id., at 1004–05.
While the AUSA never explicitly corrected the falsehoods, he at least refrained from relying upon the witnesses’ testimony in his closing argument. Id., at 1006. In addition, he had promptly turned over impeaching evidence to the defense so that the lawyers could attempt to demonstrate that the witnesses were misleading the jury. In fact, the defense presented the impeaching evidence to the jury.
Yet despite this vigorous use of this impeachment evidence, which many prosecutors and defense lawyers would think was sufficient to satisfy Due Process, the Alli court concluded that a Due Process violation occurred because of the failure to affirmatively correct the testimony in front of the jury. In so doing, the panel reaffirmed that the government has the “independent obligation immediately to take steps to correct known misstatements of its witnesses.” Id., at 1007 (citing United States v. LaPage, 231 F.3d 488, 492 (9th Cir. 2000)). This duty of immediate correction in open court is equally incumbent even if “the government [does] not solicit the false testimony and the false testimony [goes] only to the credibility of the witness, not to the substantive evidence.” United States v. Alli, 344 F.3d at 1007 (citing Napue v. Illinois, 360 U.S. at 269–70). The principles articulated by the Napue Court do in fact extend to circumstances in which the prosecution does not elicit the false or misleading testimony. The Alli panel clearly determined that, without exception, the prosecution must correct known false or misleading misstatements, including statements or evidence presented to the court or the jury.
Importantly, and as discussed previously in The Highwayman Visits the Marianas: Informers Beware: RICO Report, The Champion (June 2001), whenever a prosecutor is on “notice of the real possibility” that a witness intends to mislead or is misleading the court or jury, Due Process requires the prosecutor to investigate the matter to determine whether the testimony is false or misleading and to expose any misstatement it finds. Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d at 1118 (Trott, J.).
In Bowie, a “band of thugs” beat a man to death, and most of the assailants became informers against the lead defendant, Joseph A. Bowie. Id., at 1112–13. Before the trial, a law enforcement officer saw one witness holding a letter containing a confession and discussing how the informers would collectively blame Bowie. The Assistant Attorney General knew about the letter and ultimately disclosed it to the defense. Id., at 1113. In fact, at trial, the prosecutor helped to convince the trial judge to admit it into evidence. Id., at 1120. A lead investigator in the case testified about the letter, its likely author, its intended recipient and the general plan to “blame the death . . . on J.J. [Bowie].” Id., at 1113.
Although the letter itself was presented to the jury, the government never investigated to determine the letter’s author or the facts concerning the attempt to frame Bowie. Instead, it simply turned the letter over to the defense. See id., at 1113–14, 1117–18. Finding this course of action to be unacceptable, Judge Trott wrote for the panel, “[a] prosecutor cannot avoid this obligation [‘to correct what he knows to be false and elicit the truth’] by refusing to search for the truth and remaining wilfully ignorant of the facts.” Id., at 1118 (referring to Napue v. Illinois, 360 U.S. at 269–70). Mincing no words about the failure to develop exculpatory evidence, the panel said the “duty to protect the criminal justice system was not discharged in this case simply by ignoring the content of the letter and by turning it over to the defense . . . . Failing to do anything about the content of this letter was at least the equivalent of knowingly sitting quietly by while a person called as your witness lies on the stand.” Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d at 1118.
In reaching its conclusion, the court rejected the Assistant Attorney General’s argument that he fulfilled the requirements of Due Process by disclosing the letter to the defense. This argument “misapprehends the free standing constitutional duty of the State and its representatives to protect the system against false testimony.” Id. “The ultimate mission of the system upon which we rely . . . is to ascertain the factual truth . . . . This important mission is utterly derailed . . . by any law enforcement officer or prosecutor who finds it tactically advantageous to turn a blind eye to the manifest potential for malevolent disinformation.” Id., at 1114. Rather than accept this look-the-other-way approach, the court reversed the conviction and remanded the case for a new trial. Id., at 1125.
Accordingly, not only does the Constitution require prosecutors to come forward in open court with knowledge or evidence in their possession to correct false or misleading evidence in the record, but also if they have notice that a witness might be misleading the tribunal, they must investigate the possible falsehoods and expose the false or misleading testimony in open court.
Compliance with these constitutional requirements can save the accused and the courts time, as well as the heartache of wrongful conviction. For example, in the Detroit Terrorism Case, United States v. Koubriti, (U.S. Dist. Ct. E.D. Mich. Case No. 01-CR-80778), the piece of evidence that broke the case open and led to a reversal of convictions was a letter written by Milton “Butch” Jones, a notorious criminal who shared jail space with a key prosecution witness, Youssef Hmimssa. See Terrorism Prosecution Implodes: The Detroit “Sleeper Cell” Case: RICO Report, The Champion (Jan./Feb. 2005). Jones told the prosecution that Hmimssa had said he was lying, telling the prosecution what it wanted to hear. Instead of following up on the lead or disclosing it to the defense, AUSA Richard Convertino claimed Jones was not credible and buried the information. The defense team continued to battle after the jury returned convictions to bring the truth to light. As Bowie makes clear, this sort of misconduct is entirely improper. Due process in the Detroit case was violated not only by the failure to disclose the letter, but also by the failure to conduct further investigations to determine whether a key prosecution witness was lying. Had AUSA Convertino complied with his constitutional obligations, Koubriti and his co-defendants probably would not have been wrongfully convicted.
Against Splitting Hairs: Avoiding What Is True But Misleading
The Second Circuit recently underscored the importance of this rule of prosecutorial forthrightness when, despite the stringent standards employed in habeas corpus proceedings, it affirmed a grant of the writ because the state trial and appellate courts did not require the state to correct misleading testimony by a key witness about the deal he received.
In Jenkins v. Artuz, 294 F.3d 284, 289 (2d Cir. 2002), Eric Jenkins was serving a term of fifteen years to life for second degree murder in connection with the death of Michael Reese at a bus stop in Queens. Although the case against Jenkins included eight witnesses, only two of them directly linked him to the crime. Id., at 287. The first witness to put Jenkins at the scene was a man in a nearby telephone booth, whose testimony was fraught with glaring inconsistencies such as the name of the girlfriend to whom he was talking and the detail of whether he was talking or not when the gunshots rang out. Id., at 287–88. The other purported “eyewitness,” upon whose testimony Jenkins’s fate hung, was a local crack dealer named David Morgan who had been held on unrelated drug charges and was promised a substantial reduction of his sentence in exchange for his testimony. Id., at 287.
Jenkins’s first trial ended in a mistrial when the Assistant District Attorney waited until the day of Morgan’s testimony to enter into an oral plea agreement with him and to disclose the deal to the defense. At the second trial, a different Assistant District Attorney disclosed Morgan’s deal at the opening of the case. Morgan testified on direct that he watched a fight between Jenkins’s nephew and the victim on the day before the shooting and that Jenkins had told him that he was tired of people bothering the nephew. Id., at 288. Morgan also testified about the crime scene.
During cross-examination, Jenkins’s lawyer asked Morgan about the deal, but Morgan denied it. The examination proceeded with increasing specificity laying out the details of the deal, but Morgan remained adamant that he had no deal. When finally confronted with his contrary testimony at the first trial, where he admitted receiving a deal, he claimed to have been nervous the first time around. He “clarified” that although an offer was on the table, no deal existed. Id., at 288–89.
During all this testimony, the Assistant District Attorney did not correct Morgan’s misleading statements. Instead, she objected to the defense’s questions, and on redirect she reinforced the false impression by eliciting a negative response to the question whether the witness ever had any deals with her. Apparently, she thought than only bold-faced lies were improper and that hair-splitting would pass constitutional muster. Finally, in closing the Assistant District Attorney reminded the jury that Morgan had no deal with her, and she said that he had no reason to lie. Id., at 289.
After the jury returned a guilty verdict, Jenkins appealed relying upon Napue v. Illinois, supra, 360 U.S. 264. When the appeals fell on deaf ears, People v. Jenkins, 646 N.Y.S.2d 535, 536, 230 A.D.2d 806, 807 (2d Dep’t 1996); People v. Jenkins, 88 N.Y.2d 1069, 651 N.Y.S.2d 413, 674 N.E.2d 343 (1996) (Smith, J.) (denying leave to appeal); People v. Jenkins, 665 N.Y.S.2d 583, 245 A.D.2d 389 (2d Dep’t 1997) (dismissing petition for writ of coram nobis), and having fully exhausted the state process, Jenkins sought federal habeas relief. Jenkins v. Artuz, 294 F.3d at 289–90.
Obtaining habeas relief, of course, is no easy task. The deferential standards of review require, among other things, that a petitioner demonstrate the state court unreasonably applied clearly established federal law, as determined by the holdings of the Supreme Court. 28 U.S.C. § 2254(d)(1); see Morris v. Reynolds, 264 F.3d 38, 46 (2d Cir. 2001). Yet the panel found that Jenkins’s challenge to the Assistant District Attorney’s misconduct met these requirements. Citing the Supreme Court’s decisions in Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264, 269–70 (1959); and Mooney v. Holohan, 294 U.S. 103, 112 (1935), the panel concluded the right to have a trial free from uncorrected, misleading testimony is clearly established. Jenkins v. Artuz, 294 F.3d at 293. The state courts also unreasonably applied Napue and Giglio because they summarily found Jenkins’s claims to be “without merit,” without determining whether Morgan’s misleading testimony could reasonably have affected the outcome of the case. Id.
Finally, due to Morgan’s key role in the case, the panel found that his misleading testimony could reasonably have affected the outcome, see United States v. Agurs, 427 U.S. at 103, and the prosecution compounded the magnitude of the error when it implicitly vouched for the testimony. Jenkins v. Artuz, 294 F.3d at 293.
The error was sufficiently serious that, if the trial had been in federal court, the circumstances might have met the standards for granting a new trial, even if the evidence of Morgan’s misstatements was not discovered and disclosed until after the trial. See New Trial Motions Based on Evidence of Perjury: What Standard Applies?: RICO Report, The Champion (Oct. 2000). Although there has been some disagreement as to what standards apply to motions for a new trial where a prosecutor is unaware of the perjury, see id., the Second Circuit has observed that “[w]here the government was unaware of a witness’ perjury, . . . a new trial is warranted only if the testimony was material and ‘the court [is left] with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.’ ” United States v. Wallach, 935 F.2d at 456 (quoting Sanders v. Sullivan, 863 F.2d 218, 226 (2d Cir. 1988); citing United States v. Seijo, 514 F.2d 1357, 1364 (2d Cir. 1975)). Insofar as the Jenkins panel found that Morgan was the most critical witness, upon whose testimony the case essentially stood or fell, it is possible that panel could have concluded that in the absence of the misleading testimony the jury probably would not have convicted Jenkins.
In any event, on the petition for habeas relief, the panel was not impressed with the argument that Morgan’s testimony might be literally true under a very close reading of the transcript. Given the highly technical and clever testimony the Assistant District Attorney had developed, “[r]easonable jurors would have had to make a considerable inferential leap to conclude . . . that Morgan’s testimony was the subject of a bargain with the State. We think it far more likely that jurors would have concluded that Jenkins’s counsel tried but failed to establish that a deal had been made.” Id., at 293–94. Perhaps more troubling than the witness’s own statements were the misleading questions and comments of the Assistant District Attorney. “On redirect examination, her questions, while eliciting technically accurate testimony, were phrased so as to reenforce the false impression that no deal had been made: * * * [¶] Q: Did you make any deals with me? [¶] A: No. [¶] That testimony was probably true but surely misleading. [The Assistant District Attorney] did not follow up by eliciting testimony that although Morgan had made no deal with her, he had indeed reached one with another member of the District Attorney’s office.” Id., at 294. The prosecutor reinforced the misleading impression when she implicitly vouched for Morgan’s credibility in closing argument.
This was too much for the Second Circuit. While hesitating to call the prosecutor a liar, the panel wrote that the fact “a statement standing alone is factually correct obviously does not mean that it cannot mislead based on the natural and reasonable inferences it invites.” Id. As a general rule, when the prosecution misleads the court or the jury through this sort of deceptive hair-splitting, it violates Due Process. The panel had no difficulty in concluding this testimony was prejudicial. “[I]n a trial with only two substantive witnesses and no physical evidence linking [Jenkins] to the crime,” Morgan’s credibility was “a vital issue.” Id., at 295. Accordingly, there was a “reasonable likelihood that [Morgan’s] false testimony . . . affected the judgment of the jury.” United States v. Agurs, 427 U.S. at 103. Since the error cut to the heart of the case, the issuance of a writ of habeas corpus was appropriate.
Conclusion
More than forty-five years ago, the Supreme Court clarified that a prosecutor has a constitutional duty to step forward in open court to correct the false or misleading statements, even when those statements go only to the witness’s credibility. Even so, most prosecutors apparently believe they satisfy Due Process if they merely provide Brady/Giglio material to the defense team. Their rationale is that the burden of revealing the witnesses’ lies has shifted to the defense. This, however, is wrong.
Since the prosecution’s primary aim “in a criminal prosecution is not that it shall win a case, but that justice shall be done,” Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935), the Due Process Clauses of the Fifth and Fourteenth Amendment obligate federal and state prosecutors to correct the record when their witnesses mislead the tribunal. This duty requires an admission in open court even if the testimony is literally or technically true.
Plea agreements are now so widespread, and unfortunately prosecutors have engaged in increasingly sophisticated plans to satisfy the technical requirements of the disclosure rules while refusing to disclose anything. One troubling example is telling an attorney about a deal and relying on the lawyer to persuade the client to testify. When the witness is asked about what his lawyer told him about the deal, AUSAs have often objected based on the witness’s attorney-client privilege. See Piercing the Privilege: Informers’ Conversations with Their Lawyers: RICO Report, The Champion (August 2004). In these circumstances, the courts’ rulings as to the impermissibility of true-but-misleading testimony are increasingly important. Hopefully, defense counsel and prosecutors will recognize and abide by the holdings in Napue and its progeny so that false and misleading testimony will infect fewer trials.
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National Association of Criminal Defense Lawyers (NACDL)
1150 18th St., NW, Suite 950, Washington, DC 20036
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Judge David Finn
National Association of Criminal Defense Lawyers
The Champion Magazine
RICO Report
May 2005, Page 55
Can Prosecutors Buy Testimony?
By Barry Tarlow
Can a prosecutor pay a fact witness for testimony? Surprisingly, the question has no clear answer, and a split in the circuits has emerged.
The general rules are reasonably clear about the benefits a fact witness can receive, such as money or perhaps most valuable freedom. Prosecutors can promise or grant leniency or immunity to people accused of crimes in exchange for their testimony. United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc) [hereinafter “United States v. Singleton (en banc)”], followed in United States v. Lowery, 166 F.3d 1119 (11th Cir. 1999); United States v. Ramsey, 165 F.3d 980 (D.C. Cir. 1999); United States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998); United States v. Ware, 161 F.3d 414, 418-25 (6th Cir. 1998); United States v. Johnson, 169 F.3d 1092 (8th Cir. 1999). Benefits that are not obviously financial have usually been approved by the courts, and they at least are not viewed by the judiciary as bribery.
An enormous range of benefits have traditionally been granted to informers. Some lucky Chicago gang members-turned-informers brought shame upon the local United States Attorney’s Office when defense lawyers discovered that the informers received heroin, morphine, phone sex with a government paralegal, clothes, gifts, electronics, access to phones, and conjugal visits in government offices in exchange for their “cooperation” in bringing down the notorious El Rukn gang. Sharon Cohen, Sex, Lies, Drugs, Shame: Major Gang Prosecution Unravels in Chicago, L.A. Times, Aug. 15, 1993; see United States v. Boyd, 833 F. Supp. 1277 (N.D. Ill. 1993), aff’d United States v. Boyd, 55 F.3d 239 (7th Cir. 1995). In San Diego, one violent criminal facing a twenty-five year sentence for robbery also received conjugal visits in the prosecutor’s office, as well as numerous day trips outside jail facilities and a special cell in county jail with a color TV, a private shower and a telephone. He even had nude pictures of himself and his wife taken in the DA’s office. See Brae Canlen, Prosecutorial Zeal, Calif. Lawyer 34 (March 1999); see also Marty Graham, S.D. Grand Jury Rips County DA Office in Report: Handling of Informants is Called Overzealous, L.A. Daily J., June 11, 1998, at A1. While these benefits must be disclosed to the defense and while some of the inducements extend far beyond the bounds of propriety, they do not constitute bribery under the current state of the law.
Interestingly, there was a brief period in which it seemed the courts might deter the powerful influence that grants of leniency and other benefits have on a witness’s testimony. In 1998, a panel of the Tenth Circuit including the circuit’s then-chief judge and its most conservative judge held that grants of leniency are “things of value,” and fall within the prohibitions of the federal anti-bribery statute. 18 U.S.C. § 201. In less than 10 days, however, the court granted en banc review and removed the panel’s opinion from the federal reports. United States v. Singleton, 144 F.3d 1343, 1343 (10th Cir. 1998), vacated by United States v. Singleton (en banc), supra, 165 F.3d 1297; See They Said What? Prosecutors Can No Longer Buy Informer Testimony?: RICO Report, The Champion (Sept./Oct. 1998). As discussed more fully below, the en banc court eventually refused to follow a line of precedent concluding that the term “value” covers more than mere economic value and instead broadly held that the statute simply does not apply to prosecutors acting within the authorized scope of their duties.
Regardless of the traditional appropriateness of leniency grants (which defense lawyers obviously lack the power to give), a lawyer’s outright payment for a fact witness’s testimony aside from minor fees and costs is usually a crime under the federal witness anti-bribery statute. See 18 U.S.C. § 201(c). One of the worst abuses in the use of informers occurred in connection with the prosecution of Manuel Noriega. It later came to light that the star witness in his case had indirectly received $1.2 million in drug money and cartel “protection” for his testimony. Of course, his alternative to testifying wasn’t prison; it was lead. See Michael Isikoff and Peter Katel, A Deal With the Devil: Did the Feds Use the Cali Cartel to Get Noriega?, Newsweek 59 (Oct. 30, 1995). In Mexico, such a transaction is euphemistically referred to as a choice “entre la plata y el plombo,” that is, the choice is between silver and lead.
Does the anti-bribery statute apply to prosecutors? After all, political realities aside, why should it not? What, for example, would happen if a defense lawyer paid a witness $5000 for truthful testimony? The terms of the provisions of § 201, also known as the anti-gratuity statute, seem clear at first glance: (c) Whoever . . . (2) directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath . . . as a witness upon [any] proceeding, before any court . . . , or for or because of such person’s absence therefrom; [or] (3) directly or indirectly, demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of the testimony . . . or for or because of such person’s absence therefrom . . . shall be fined under this title or imprisoned for not more than two years, or both. 18 U.S.C. § 201(c)(2),(3). Unlike the companion provision governing gratuities given to public officials, see 18 U.S.C. § 201(b), subsection (c) does not ostensibly include the requirement that the gratuity be “corruptly” given. See also United States v. Irwin, 354 F.2d 192, 195 (2d Cir. 1965) (“Many of the [anti-bribery and anti-corruption] provisions were placed in § 201. . . . Subsections (f) through (i) [including subsection (h) which was the predecessor to subsection (c)(2)] define offenses concerning which there is no mention of intent to influence or induce.”). Further, even if testimony must be shown to be given corruptly, it need not be shown to be false. See United States v. Donathan, 65 F.3d 537, 540 (6th Cir. 1995). If the word “Whoever” covers prosecutors or law enforcement authorities and a payment is something “of value,” § 201 would seem simply to prevent government agents from purchasing witness testimony.
Prohibiting cash payments to witnesses would seem fair and reasonable enough. General rules governing the practice of law have long prohibited lawyers from paying fact witnesses to testify, except for reimbursement of fees and costs. While the rules might even allow reimbursement for lost wages, see ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 96-402 (1996) (nonexpert witness can be compensated for time spent attending trial), ethical canons condemn economically influencing witnesses. See Best Evidence Money Can Buy: Ethical Rules and Witness Payments: RICO Report, The Champion (April 1995).
For example, a past version of the model canon of legal ethics mandated,“[a] lawyer shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the testimony or the outcome of the case.” ABA Mod. Code of Prof. Responsibility DR 7–109(C). Currently, ABA Rule 3.4(b) states that “lawyer[s] shall not . . . offer an inducement to a witness that is prohibited by law.” ABA Ann. Mod. R. Prof. Cond., R. 3.4(b) (4th ed.). The new rephrasing ostensibly allows prosecutors and defense attorneys to pay witnesses as long as the payment is not prohibited by law. Regardless of the ethical rules of the states, however, federal prosecutors historically have not heeded state bar rules, at least until the furor that arose over the Thornburgh Memorandum. Federal Prosecutors No Longer Subject to Thornburgh Memorandum: RICO Report, The Champion (June 1999); see United States v. Lopez, 4 F.3d 1455, 1458 (9th Cir. 1993) (“[T]he government . . . has prudently dropped its dependence on the Thornburgh Memorandum . . . and has thereby spared us the need of reiterating the district court’s trenchant analysis of the inefficacy of the Attorney General’s policy statement”); Larry D. Thompson, McDade Law Is Good for the Profession, The Champion 22 (2001) (“The DOJ’s position was strongly criticized by the Conference of Chief Justices representing all 50 state supreme courts and solidly rejected by federal courts.”).
Are Prosecutors People Too?
Surprisingly, in the widely cited en banc opinion of the Tenth Circuit, United States v. Singleton (en banc), supra, 165 F.3d 1297, the majority concluded that the federal witness anti-gratuity statute does not apply to prosecutors acting within their authority. According to this strained interpretation, prosecutors are the alter ego of the United States, which is not a “who” covered by the first word of the statute, “Whoever.” Id., at 1300, 1302. This broad-reaching analysis has been shamelessly applied to the circumstance of cash payments.
Sonya Singleton was accused of being part of a cocaine smuggling conspiracy, because she transmitted drug proceeds by wire transfers through Western Union. Her associate Napoleon Douglas became a snitch and “entered into a plea agreement in which he agreed to testify truthfully in return for the government’s promise not to prosecute him for related offenses, to advise the sentencing court of his cooperation, and to advise a state parole board of the ‘nature and extent’ of his cooperation.”
United States v. Singleton (en banc), 165 F.3d at 1298. Because Douglas’s testimony was premised upon a grant of leniency, which Singleton thought was something “of value,” she moved to suppress his statements on the ground that they were obtained in violation of § 201(c)(2). After she lost the motion, Singleton was convicted of conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846, and money laundering in violation of 18 U.S.C.
§ 1956(a)(1)(B)(I). She was sentenced to forty-six months in prison and a term of supervised release. See United States v. Singleton, 144 F.3d 1343, 1343 (10th Cir. 1998), vacated by United States v. Singleton (en banc), supra, 165 F.3d 1297. On appeal, she sought a review of her challenge to the use of leniency to obtain prosecution-friendly witness statements. On July 1, 1998, a panel of the Tenth Circuit including then-Chief Judge Stephanie K. Seymour and Circuit Judges David M. Ebel and Paul J. Kelley, Jr., set off a brief firestorm around the country by issuing an opinion adopting Singleton’s argument under § 201(c) and condemning the prosecutorial payoffs. See They Said What? Prosecutors Can No Longer Buy Informer Testimony?: RICO Report, The Champion (Sept./Oct. 1998). Notably, Judge Kelly, who wrote for the panel, was a George H.W. Bush appointee, and Judge Ebel was a Reagan appointee who had clerked for Supreme Court Justice Byron White. However, just nine days later the opinion was vacated when the court granted a rehearing en banc. See United States v. Singleton, 144 F.3d 1343, 1343 (10th Cir. 1998), vacated by United States v. Singleton (en banc), supra, 165 F.3d 1297.
What was the en banc majority’s reasoning? Reagan appointee and former Colorado Attorney General, Circuit Judge John C. Porfilio wrote that AUSAs are not mere lawyers for the government. By federal law, the court lacks jurisdiction to hear a criminal case “unless it is filed and prosecuted by the United States Attorney or a properly appointed assistant. Therefore, the government’s sovereign authority to . . . conduct a prosecution is vested solely in the United States Attorney and his or her properly appointed assistants.” United States v. Singleton (en banc), 165 F.3d at 1300. As an organization, a government cannot function except through its authorized agents; they compose it. The majority concluded that when an accused receives an offer of leniency, he receives it not from the AUSA but from the United States. In the view of the majority, the United States is not a “who” covered by the statutory term “Whoever,” it is a “what,” and in any event principles of sovereign immunity preclude the United States from subjecting itself to its own criminal penalties (at least without an explicit statement to the contrary). Id., at 1300–01. Accordingly, the court concluded § 201(c) simply does not apply to prosecutors acting within their authority and not ultra vires.
Other circuits agree with the result reached in Singleton (en banc) that prosecutorial grants of leniency in exchange for testimony do not violate § 201(c). See, e.g., United States v. Lara, 181 F.3d 183, 198 (1st Cir. 1999); United States v. Lowery, 166 F.3d 1119 (11th Cir. 1999); United States v. Ramsey, 165 F.3d 980 (D.C. Cir. 1999); United States v. Haese, 162 F.3d 359, 366-68 (5th Cir. 1998); United States v. Ware, 161 F.3d 414, 418-25 (6th Cir. 1998); United States v. Johnson, 169 F.3d 1092 (8th Cir. 1999). Yet the Tenth Circuit penned a far-reaching rule. In defending the grants of leniency, it said that § 201(c) simply does not apply to prosecutors. Does this mean that prosecutors can make cash payments for witness testimony?
In United States v. Lott, 310 F.3d 1231 (10th Cir. 2002), Judge Ebel, who sat on the original Singleton panel and dissented from the en banc majority opinion, was compelled to follow the en banc opinion. Gary Lott was convicted of conspiring to manufacture and distribute methamphetamine. While the case was being investigated, law enforcement agents paid informer Judy Jackson to make controlled buys of methamphetamine from Lott’s brother Johnny. Jackson then appeared at trial to testify about what she knew about the operation. Id., at 1236. Although Lott moved to suppress her testimony citing 18 U.S.C. § 201(c) based on her receipt of a promise of leniency and $3450 in cash, the trial court was unmoved.
Lott was convicted and sentenced to life in prison. On appeal, he argued that the cash payments to Jackson violated the anti-gratuity statute. The Lott panel responded that cash payments to a prosecution witness do not violate § 201(c) at least so as long there is no proof that the payments are specifically for the testimony. Id., at 1245. Because Lott could not produce Jackson’s plea agreement showing that the cash payment was for testimony, and because the FBI provided some evidence that it had reimbursed Jackson for expenses, Lott could not establish that the prosecution had directly bought the testimony. Id., at 1245 n.10. Since there was no demonstrable violation of § 201(c), the panel affirmed the trial court’s refusal to suppress the informer’s testimony. Disturbingly, the Lott panel was unable to commit even to the simple principle that the statute would ban a prosecutor from paying for testimony. Instead, it reserved the question for another day. Id.
Leniency, Not Cash, Is The Lawful Coin Of The Realm
Fortunately, other courts are putting the brakes on this gravy train. Even conservative judges such as Richard A. Posner and Frank H. Easterbrook of the Seventh Circuit, have deemed the apparently inevitable result of Singleton (en banc), namely, straight cash payments, to be unacceptable. This past June, in commenting on a prosecutorial payment Chief Judge Posner said, “To pay a witness, other than an expert witness, for his testimony is irregular and in fact is unlawful in federal trials, 18 U.S.C. § 201(c)(2) . . . .” Mataya v. Kingston, 371 F.3d 353, 359 (7th Cir. 2004) (citing United States v. Condon, 170 F.3d 687, 698 (7th Cir. 1999)).
Randall Mataya was a habeas corpus petitioner who was serving a life sentence for the murder of Pamela Claflin. The star witness in his case had been Donald Hertel, a ten-time convict who was paid $1000 and given a helpful letter to the parole board for his cooperation and testimony in the case. Mataya v. Kingston, 371 F.3d at 354–55. The key issue in the federal appeal concerned Brady disclosures. (The defense was never told that four burglary charges had been dropped in exchange for Hertel’s testimony, and Judge Posner engaged in a lengthy analysis of whether this discovery violation required reversal.) In important dicta, however, the panel unhesitatingly remarked that “[p]aying for testimony, as well as concealing evidence of inducements given to a government witness, are breaches of prosecutorial ethics, * * * [and] [t]o pay a witness . . . for his testimony is irregular and in fact is unlawful in federal trials . . . .” Id., at 359.
The panel emphasized, “[t]o pay in money [is forbidden]; immunity from prosecution, a lighter sentence, placement in a witness-protection program, and other breaks are lawful coin in this realm.” Id. While the panel ultimately concluded that the payment in Mataya and the prosecutor’s other errors did not require reversal, it at least took a stand against the unethical tactic of using cash payments.
The text of the Mataya panel’s opinion permits prosecutorial distributions of non-cash benefits. While they might violate state bar ethical rules and create problems for AUSAs pursuant to the McDade Amendment, see 28 U.S.C. § 530B(a), quoted in United States v. Condon, 170 F.3d 687, 690 (7th Cir. 1999) (requiring attorneys for the federal government to comply with state bar ethical rules), they do not fall within the Seventh Circuit’s reading of the anti-gratuity statute. Even so, many jurisdictions take violations of state ethical rules “quite seriously and have utilized suppression as a remedy/sanction.” Ethical Restraints on Law Enforcement Contact with Corporate Employees: RICO Report, The Champion (Dec. 1999) (citing RICO Reports, The Champion (Sept./Oct. 1997, March 1995, August 1993, June 1993, Sept./Oct. 1992)).
How, according to the Seventh Circuit, can cash payments by prosecutors for testimony in federal trials violate § 201(c)? On this point, Judge Posner cited to the earlier opinion of Judge Easterbrook in United States v. Condon, supra, 170 F.3d at 689, which shied away from the Singleton (en banc) panel’s strained reading of “Whoever.” “Convicted of conspiracy to defraud the Internal Revenue Service by skimming cash from a chain of martial arts schools, Thomas Condon . . . conten[ded] that 18 U.S.C. § 201(c)(2), forclose[d] testimony from witnesses who were promised immunity from prosecution (or lower sentences) in exchange for their cooperation.” Id., at 688. The Condon panel cited Nardone v. United States, 302 U.S. 379 (1937), for the well settled proposition that the term “whoever” refers to “agents of the United States unless application of the statute would ‘deprive the sovereign of a recognized or established prerogative title or interest’ or ‘a reading which [includes the government] would work obvious absurdity.’ ”
United States v. Condon, 170 F.3d at 689 (quoting Nardone v. United States, 302 U.S. at 383–84).
The Condon court, like the panel in Singleton (en banc), considered in passing the theory that some FBI or AUSA inducements and actions might be authorized acts in the ordinary course of their duties, such that “whoever” does not include the prosecutors because they act on behalf of the government. If this were the best interpretation of the statute, the court could reason that a reading of § 201(c) purporting to criminalize the inducements could preclude those prerogatives or create an absurdity. United States v. Condon, 170 F.3d at 689–90. Instead of going this route, however, the panel found better support for another solution to the problem. Looking to its earlier opinion in United States v. Barrett, 505 F.2d 1091, 1100–03 (7th Cir. 1974), which construed the predecessor statute to § 201, the panel found that “[f]orgoing criminal prosecution (or securing a lower sentence) is not a ‘thing of value’ within the meaning of § 201(c)(2).” United States v. Condon, 170 F.3d at 689.
This rather strained reading of the phrase “thing of value” permits a harmonization of § 201(c) with a variety of federal statutes, including the Witness Relocation and Protection Act, portions of the Sentencing Reform Act of 1994 allowing the lowering of sentences, 18 U.S.C. § 3553(e), 28 U.S.C. § 994(n), Federal Rules of Criminal Procedure 11 and 35(b) concerning plea agreements and reductions of sentences for substantial assistance, respectively, and U.S. Sentencing Guideline § 5K1.1, concerning downward departures from the now advisory guidelines in exchange for substantial cooperation. United States v. Condon, 170 F.3d at 689; but see United States v. Booker, _ U.S. _, 125 S. Ct. 738 (Jan. 12, 2005) (holding the United States Sentencing Guidelines to be unconstitutional in their present form). Accordingly, the Condon panel held that grants of leniency do not trigger § 201, regardless of the prosecutor’s official title and role. Notably, and unlike the Singleton (en banc)-Lott line of cases, this analysis permits prosecutors to grant non-economic leniency to witnesses, but clearly prohibits monetary payments.
You Generally Can’t Pay, Unless Congress Says It’s OK
So long as the question concerning cash payments and § 201 is still an open one, there is a third solution to consider. In a concurring opinion in Singleton (en banc) joined by former Oklahoma Attorney General and current Circuit Judge Robert H. Henry, Circuit Judge Carlos F. Lucero found the majority’s broad interpretation of federal agents’ alter ego status to be inconsistent with the Supreme Court’s opinion in Nardone. United States v. Singleton (en banc), supra, 165 F.3d at 1303, 1304 (Lucero, J., concurring). To allow AUSAs, FBI or IRS agents, and almost any federal employee who transfers a benefit on behalf of the prosecution to be the alter ego of the United States is to allow the narrow exceptions in Nardone to swallow the general rule that federal agents are individuals covered by the term “whoever.” Id., at 1304. It also is not absurd to suggest that “a prosecutor who corruptly bribes a witness to supply false testimony is liable” under the statute. Id.
While § 201 is a statute of general application, however, various federal statutes specifically authorize the government to offer leniency and other benefits to would-be defendants. Id., at 1305–06. For example, in 18 U.S.C. §§ 6001–6005, Congress has authorized immunity in exchange for testimony. The statutes cited by Judge Easterbrook, like those concerning the Rule 11 plea negotiation process and the Witness Protection Program, also authorize prosecutors and law enforcement officers to promise or give enumerated benefits. As a principle of statutory construction, when a conflict arises between a specific and a general statute, the specific governs. So, to the extent of the specific grants of prosecutorial and law enforcement powers, § 201 generally will not control the legality of the prosecution team’s conduct. United States v. Singleton (en banc), 165 F.3d at 1305–06 (Lucero, J., concurring); compare United States v. Martinez-Medina, 279 F.3d 105, 118 (1st Cir. 2002) (“As to the statutory issue, it is entirely doubtful that 18 U.S.C. § 201(c)(2) applies at all to the government, but in all events Congress has explicitly authorized the Attorney General to provide for the relocation and protection of witnesses that may be in danger [under the] (Witness Relocation and Protection Act).”) (citations omitted).
In passing, Judge Lucero also recognized that “[w]hen granted statutory immunity [or some other benefit], the potential witness is given something of value by the government in that his immunized testimony cannot be used to prosecute him.” Id., at 1306. So unlike the Condon analysis, Judge Lucero was not hemmed in by an economic view of the law.
This analysis has three advantages. First, it avoids the murky issue of when a government agent acts outside the scope of their authority. Second, it recognizes that recipients of leniency, immunity and similar rewards receive actual benefits. Immunity is something of value under the plain language of the statute and can be as effective in manipulating testimony as a straight cash payment. Third, the analysis recognizes that common cash payments to fact witnesses not covered by other specific provisions are prohibited by § 201. Given the analyses set forth by the Mataya and Condon panels and the concurring opinion in Singleton (en banc), there is hope that courts will prevent prosecutors from actually buying testimony.
A Bribe Is A Bribe,Truth Or Falsity Aside
Until recently, a prosecutor might have deemed the whole question to be a moot point. Prosecutors claim they are simply offering truthful testimony, which arguably might not fall under the statute. At least one U.S. district court suggested as much in Golden Door Jewelry Creations, Inc. v. Lloyd’s Underwriters, 865 F. Supp. 1516, 1523–24 (S.D. Fla. 1994); see Best Testimony Money Can Buy: Ethical Rules and Witness Payments: RICO Report, The Champion (April 1995).
In United States v. Blaszak, however, the Sixth Circuit recently disagreed with Golden Door and affirmed a ruling that a potential witness violates § 201(c)(3) when he accepts money for offering truthful testimony and evidence. United States v. Blaszak, 349 F.3d 881 (6th Cir. 2003). Of course, the person prosecuted was not an informer.
James Blaszak was a lawyer who approached RE/MAX International when the company was the plaintiff in a large civil antitrust action. Blaszak offered to provide truthful testimony and documents clearly showing the defendant’s liability for antitrust remedies. In exchange, he wanted $500,000 and a small monthly retainer. The actual content of his testimony was not negotiable; he intended to tell the truth. Id., at 883. Unpersuaded, RE/MAX informed the authorities. Following an FBI sting of this hardened truth-teller, Blaszak pled guilty and was sentenced to three years’ probation.
On appeal, Blaszak first argued that § 201(c)(3) is an impermissible content-based restriction of the freedom of speech. He reasoned that it is improper for prosecution witness to be able to be compensated for their testimony, see United States v. Ware, 161 F.3d 414, 418–19 (6th Cir. 1998), while witnesses for criminal defense lawyers and civil litigants cannot receive economic benefits for their free speech. United States v. Blaszak, 349 F.3d at 884. Side-stepping the First Amendment problem and the ultimate issue of whether prosecutors can pay for testimony, the court noted that the law did not restrict speech, but rather restricted the act of payment. Witnesses can say whatever they want, but if you’re a criminal defense lawyer, you ostensibly cannot pay them to do it.
Interestingly, Blaszak also argued that the law, as applied to truthful testimony, violates the Fifth Amendment guarantee of due process because there was no fair warning that it barred such payments. Courts largely had not addressed the question, and the district court in Golden Door suggested that truthful testimony was not covered. Disagreeing with Golden Door, the Blaszak panel reasoned that § 201(c)(3) is a lesser included offense of § 201(b)(4), which proscribes the bribery of public officials. In United States v. Donathan, 65 F.3d 537 (6th Cir. 1995), the Sixth Circuit held that the government need not prove that the public official’s testimony was false to obtain a conviction under subsection (b)(4). What is true for the greater is true for the lesser. Accordingly, testimony need not be false to be covered by § 201(c). United States v. Blaszak, 349 F.3d at 887. The point is that public proceedings not only should be free from lies, but also should be free from the appearance of impropriety that comes with cash payments and that undermines confidence in the system. It therefore is no answer to say that prosecutors need not worry about the statute if they believe they present truthful testimony. In so doing, they taint the judicial system.
The question remains, Can a prosecutor pay a fact witness for testimony? Fortunately, the generally preferred answer to the latter question seems to be, “No.” Section 201 should apply to prosecutors, just as it does to criminal defense lawyers, and cash payments by either to their witnesses appear to be illegal. Of course, there is a practical roadblock to equal application of this statute. After all, who will charge and prosecute an AUSA for violating § 201(c)? There is, however, a serious obstacle that could well deter prosecutors from buying testimony. As the Thornburgh Memorandum fiasco demonstrated and the McDade Amendment reinforced, see 28 U.S.C. § 530B(a), federal prosecutors must now be extremely sensitive to whether their conduct violates state ethical standards such as ABA Ann. Mod. R. Prof. Cond., R. 3.4(b) (4th ed.), and, if so, to what discipline they might be subjected.
False Testimony And The Prosecutor’s Duty To Correct The Record
The Supreme Court “has long recognized the ‘serious questions of credibility’ informers pose.” Banks v. Dretke, 540 U.S. 668, 702 (2004) (citations omitted). As a career prosecutor, Judge Stephen S. Trott repeatedly cautioned that “criminals are likely to say and do almost anything to get what they want, especially when they want to get out of trouble with the law.” Stephen S. Trott, U.S. Dep’t of Justice, Prosecution of Public Corruption Cases 117–18 (Feb. 1988). Informers will “will even book their own mother” to get out of trouble. United States v. Bernal-Obeso, 989 F.2d 331, 337 (9th Cir. 1993) (Trott, J.); see Stephen S. Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L.J. 1381, 1385 (1996), cited in Banks v. Dretke, 540 U.S. at 702. Similarly, although many law enforcement officers testify truthfully, it is well known that some officers will readily commit perjury to obtain convictions. In short, perjury is and has been endemic in our criminal justice system. See Tarlow, “Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility in a Perjury-Plagued System,” 26 Hastings L.J. 917 (1975), cited in Polygraph Evidence: The Search for Truth in a Perjury-Plagued Justice System: RICO Report, The Champion (Dec. 1995).
What is a prosecutor’s obligation if he believes a witness will or has presented false or misleading testimony? Many prosecutors and defense lawyers still labor under the false impression that if the prosecution simply provides the defense with Brady/Giglio material to impeach a lying witness, they have satisfied their constitutional obligations. They incorrectly assume that once the prosecution turns over the exculpatory material, the defense bears the burden of exposing the lie. See, e.g., Belmontes v. Woodford, 350 F.3d 861, 881 (9th Cir. 2003) (“The state argues that the prosecution had no duty to correct the record because defense counsel was notified of the drunk-driving arrest at a pretrial hearing.”).
This is quite simply wrong. The Constitution requires prosecutors to seek justice rather than victory. As the Supreme Court recently reaffirmed, “the prosecution’s ‘deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice.’ ” Banks v. Dretke, 540 U.S. at 694 (quoting Giglio v. United States, 405 U.S. 150, 153 (1972), in turn quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935) (per curiam)). In proceedings before the trial court, a “prosecutor has an independent, constitutional duty to correct testimony he knows to be false. [On appeal, i]f there is ‘any reasonable likelihood that the [known] false testimony could have affected the judgment of the jury,’ the conviction must be set aside.” Belmontes v. Woodford, 350 F.3d at 881 (quoting United States v. Agurs, 427 U.S. 97, 103 (1976); citing Napue v. Illinois, 360 U.S. 264, 269–70 (1959); Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d 1109 (9th Cir. 2001)). Indeed, “if it is established that the government knowingly permitted the introduction of false testimony, reversal is virtually automatic.” United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991) (citing Napue v. Illinois, 360 U.S. at 269; United States v. Stofsky, 527 F.2d 237, 243 (2d Cir. 1975), cited in New Trial Motions Based on Evidence of Perjury: What Standard Applies?: RICO Report, The Champion (Oct. 2000).
What is more, the prosecution cannot even refuse to develop evidentiary leads that it believes would expose a witness’s lies. Whenever the prosecution has “notice of the real possibility” that its witness is misleading or intends to mislead the court or jury, the Due Process Clause requires it to conduct an investigation to determine whether the testimony is false and to expose any falsehood it finds. Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d at 1118 (Trott, J.), discussed in The Highwayman Visits the Marianas: Informers Beware: RICO Report, The Champion (June 2001). This RICO Report reviews these prosecutorial obligations.
Beyond Disclosure To The Defense: Remembering Napue
In modern litigation, whether civil or criminal, cases often stand or fall upon discovery and motion practice. So it is not surprising that so much case law is devoted to prosecutors’ discovery and disclosure obligations as set forth in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Due Process, however, does not end with the disclosure of evidence to the defense. In the often overlooked decision of Napue v. Illinois, 360 U.S. 264 (1959), the Supreme Court long ago held that a prosecutor has the duty to set the record straight when its witness misleads the court or the jury. Simply informing the defense about impeachment evidence is not enough. Although the task of outing one’s own witnesses is surely uncomfortable, that is what Due Process requires.
In Napue v. Illinois, Henry Napue was tried for murder. Early one morning in August 1938, he and three others, including the state’s key witness George Hamer, walked into a Chicago bar and announced their intention to rob the place. An off-duty police officer drew his gun and fired, and in the ensuing shootout, the officer was killed. The men fled, but the police eventually caught up with Hamer. After pleading guilty to murder, he received a 199-year sentence. Id., at 265.
Later, authorities charged Napue with the same murder. The case turned on eyewitness identifications that were problematic due to the dim lighting in the bar, the circumstances of the shootout and the passage of time. Most of the eyewitnesses had moved and were unavailable. So Hamer’s testimony was especially important.
“The more things change, the more they stay the same.” Alphonse Karr (French author, 1808-1890). During Hamer’s cross-examination, Napue’s lawyer asked, “Did anybody give you a reward or promise you a reward for testifying,” to which Hamer provided the usual answer: “There ain’t nobody promised me anything.” Id., at 267 n.2. On redirect, the prosecutor emphasized the response by asking,“Have I promised you that I would recommend any reduction of sentence to anybody,” and Hamer said: “You did not.” Id. “On the basis of the evidence presented, which consisted largely of Hamer’s testimony, the jury returned a guilty verdict and [Napue] was sentenced to 199 years.” Id., at 266.
In fact, however, Hamer received some promises of leniency from the prosecutor. These promises came to light in a post-conviction petition filed by the prosecutor on Hamer’s behalf, in which the prosecutor “alleged that as prosecuting attorney he had promised Hamer that if he would testify against Napue, ‘a recommendation for a reduction of [Hamer’s] sentence would be made and, if possible, effectuated.’ ” Id., at 266. When Hamer said he would not “cooperate any further unless he were given definite assurance that a recommendation for reduction of his sentence would be made,” the prosecutor struck a deal. Id., at 266 n.1.
After Napue learned of the deal from the comfort of his jail cell, he filed a petition arguing that he had been denied Due Process when Hamer lied on the stand and the prosecutor knew about it. By the time the case reached the Supreme Court, it was undisputed that Hamer testified falsely. The state largely relied upon the argument that no prejudice resulted because the jury was informed that a public defender intended to seek leniency on Hamer’s behalf.
Rejecting this argument, the Supreme Court observed, “it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Id., at 269 (citing, inter alia, Mooney v. Holohan, 294 U.S. 103 (1935)). According to the Court, “[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. at 269 (citing, inter alia, Alcorta v. Texas, 355 U.S. 28 (1957)).
Reviewing the testimony as to Hamer’s bias, the Court held that the rule is not limited to exonerating evidence. Instead, “[t]he principle . . . [is] implicit in any concept of ordered liberty [and] does not cease to apply merely because the false testimony goes only to the credibility of the witness.” Id., at 269. False, uncorrected testimony as to a witness’s bias violates Due Process just as much as false, uncorrected evidence wrongly incriminating the accused.
The Court concluded that the false testimony and misconduct was prejudicial. Recognizing that evidence of a defense lawyer’s mere efforts to seek leniency for a client is less weighty than evidence of an actual offer of leniency, the Court held that the latter could have changed the jury’s assessment of the witness. Id., at 270.
The rule has since been applied to false, uncorrected expert testimony about physical evidence, see Miller v. Pate, 386 U.S. 1 (1967), and prosecutors’ misstatements as to whether they offered leniency to witnesses, see Giglio v. United States, 405 U.S. 150 (1972).
Correcting Falsehoods In The Ninth Circuit
If the Napue Court’s holding was noteworthy in 1959, perhaps before plea agreements became so common, it surely is important today. Even though it was established 45 years ago by the Supreme Court, the lesson of Napue seems lost on some prosecutors. In 2003, for example, the state was still arguing to the Ninth Circuit that Due Process requirements are satisfied by mere disclosure to the defense, and correction of falsehoods in open court is not necessary. See, e.g., Belmontes v. Woodford, 350 F.3d 861, 881(“The state argues that the prosecution had no duty to correct the record because defense counsel was notified of the drunk-driving arrest at a pretrial hearing.”).
Fortunately, federal courts have less trouble remembering and enforcing Napue. In United States v. Alli, 344 F.3d 1002 (9th Cir. 2003), the panel clearly reaffirmed that regardless of any objection by defense counsel and the full disclosure of Brady/Giglio evidence, the prosecution must step forward and correct known false or misleading statements in open court. See id., at 1007 (citing United States v. LaPage, 231 F.3d 488, 492 (9th Cir. 2000)).
Julius Alli was charged with making false, fictitious or fraudulent claims on the United States, in violation of 18 U.S.C. § 287, as well as conspiracy in violation of 18 U.S.C. § 371. He, his wife and a few others concocted a scheme to claim phoney tax credits by obtaining names and social security numbers, filing false tax forms and collecting the refund checks. United States v. Alli, 344 F.3d at 1004. The scam, for which Alli earned himself a sentence of nearly 6 years in prison, “netted him no more than a few thousand dollars.” Id., at 1001–02.
At trial, two of the co-conspirators, Ezekial Oyegoke and Emmanuel Ogunde, testified against Alli. Each of them had a cooperation agreement. When Alli’s lawyer cross-examined about their biases, each denied they were promised sentencing benefits in exchange for their testimony. After the defense confronted them with their plea agreements, which revealed their testimony to be false, one witness admitted his error while the other refused. The documents were not offered as evidence. Id., at 1004–05.
While the AUSA never explicitly corrected the falsehoods, he at least refrained from relying upon the witnesses’ testimony in his closing argument. Id., at 1006. In addition, he had promptly turned over impeaching evidence to the defense so that the lawyers could attempt to demonstrate that the witnesses were misleading the jury. In fact, the defense presented the impeaching evidence to the jury.
Yet despite this vigorous use of this impeachment evidence, which many prosecutors and defense lawyers would think was sufficient to satisfy Due Process, the Alli court concluded that a Due Process violation occurred because of the failure to affirmatively correct the testimony in front of the jury. In so doing, the panel reaffirmed that the government has the “independent obligation immediately to take steps to correct known misstatements of its witnesses.” Id., at 1007 (citing United States v. LaPage, 231 F.3d 488, 492 (9th Cir. 2000)). This duty of immediate correction in open court is equally incumbent even if “the government [does] not solicit the false testimony and the false testimony [goes] only to the credibility of the witness, not to the substantive evidence.” United States v. Alli, 344 F.3d at 1007 (citing Napue v. Illinois, 360 U.S. at 269–70). The principles articulated by the Napue Court do in fact extend to circumstances in which the prosecution does not elicit the false or misleading testimony. The Alli panel clearly determined that, without exception, the prosecution must correct known false or misleading misstatements, including statements or evidence presented to the court or the jury.
Importantly, and as discussed previously in The Highwayman Visits the Marianas: Informers Beware: RICO Report, The Champion (June 2001), whenever a prosecutor is on “notice of the real possibility” that a witness intends to mislead or is misleading the court or jury, Due Process requires the prosecutor to investigate the matter to determine whether the testimony is false or misleading and to expose any misstatement it finds. Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d at 1118 (Trott, J.).
In Bowie, a “band of thugs” beat a man to death, and most of the assailants became informers against the lead defendant, Joseph A. Bowie. Id., at 1112–13. Before the trial, a law enforcement officer saw one witness holding a letter containing a confession and discussing how the informers would collectively blame Bowie. The Assistant Attorney General knew about the letter and ultimately disclosed it to the defense. Id., at 1113. In fact, at trial, the prosecutor helped to convince the trial judge to admit it into evidence. Id., at 1120. A lead investigator in the case testified about the letter, its likely author, its intended recipient and the general plan to “blame the death . . . on J.J. [Bowie].” Id., at 1113.
Although the letter itself was presented to the jury, the government never investigated to determine the letter’s author or the facts concerning the attempt to frame Bowie. Instead, it simply turned the letter over to the defense. See id., at 1113–14, 1117–18. Finding this course of action to be unacceptable, Judge Trott wrote for the panel, “[a] prosecutor cannot avoid this obligation [‘to correct what he knows to be false and elicit the truth’] by refusing to search for the truth and remaining wilfully ignorant of the facts.” Id., at 1118 (referring to Napue v. Illinois, 360 U.S. at 269–70). Mincing no words about the failure to develop exculpatory evidence, the panel said the “duty to protect the criminal justice system was not discharged in this case simply by ignoring the content of the letter and by turning it over to the defense . . . . Failing to do anything about the content of this letter was at least the equivalent of knowingly sitting quietly by while a person called as your witness lies on the stand.” Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d at 1118.
In reaching its conclusion, the court rejected the Assistant Attorney General’s argument that he fulfilled the requirements of Due Process by disclosing the letter to the defense. This argument “misapprehends the free standing constitutional duty of the State and its representatives to protect the system against false testimony.” Id. “The ultimate mission of the system upon which we rely . . . is to ascertain the factual truth . . . . This important mission is utterly derailed . . . by any law enforcement officer or prosecutor who finds it tactically advantageous to turn a blind eye to the manifest potential for malevolent disinformation.” Id., at 1114. Rather than accept this look-the-other-way approach, the court reversed the conviction and remanded the case for a new trial. Id., at 1125.
Accordingly, not only does the Constitution require prosecutors to come forward in open court with knowledge or evidence in their possession to correct false or misleading evidence in the record, but also if they have notice that a witness might be misleading the tribunal, they must investigate the possible falsehoods and expose the false or misleading testimony in open court.
Compliance with these constitutional requirements can save the accused and the courts time, as well as the heartache of wrongful conviction. For example, in the Detroit Terrorism Case, United States v. Koubriti, (U.S. Dist. Ct. E.D. Mich. Case No. 01-CR-80778), the piece of evidence that broke the case open and led to a reversal of convictions was a letter written by Milton “Butch” Jones, a notorious criminal who shared jail space with a key prosecution witness, Youssef Hmimssa. See Terrorism Prosecution Implodes: The Detroit “Sleeper Cell” Case: RICO Report, The Champion (Jan./Feb. 2005). Jones told the prosecution that Hmimssa had said he was lying, telling the prosecution what it wanted to hear. Instead of following up on the lead or disclosing it to the defense, AUSA Richard Convertino claimed Jones was not credible and buried the information. The defense team continued to battle after the jury returned convictions to bring the truth to light. As Bowie makes clear, this sort of misconduct is entirely improper. Due process in the Detroit case was violated not only by the failure to disclose the letter, but also by the failure to conduct further investigations to determine whether a key prosecution witness was lying. Had AUSA Convertino complied with his constitutional obligations, Koubriti and his co-defendants probably would not have been wrongfully convicted.
Against Splitting Hairs: Avoiding What Is True But Misleading
The Second Circuit recently underscored the importance of this rule of prosecutorial forthrightness when, despite the stringent standards employed in habeas corpus proceedings, it affirmed a grant of the writ because the state trial and appellate courts did not require the state to correct misleading testimony by a key witness about the deal he received.
In Jenkins v. Artuz, 294 F.3d 284, 289 (2d Cir. 2002), Eric Jenkins was serving a term of fifteen years to life for second degree murder in connection with the death of Michael Reese at a bus stop in Queens. Although the case against Jenkins included eight witnesses, only two of them directly linked him to the crime. Id., at 287. The first witness to put Jenkins at the scene was a man in a nearby telephone booth, whose testimony was fraught with glaring inconsistencies such as the name of the girlfriend to whom he was talking and the detail of whether he was talking or not when the gunshots rang out. Id., at 287–88. The other purported “eyewitness,” upon whose testimony Jenkins’s fate hung, was a local crack dealer named David Morgan who had been held on unrelated drug charges and was promised a substantial reduction of his sentence in exchange for his testimony. Id., at 287.
Jenkins’s first trial ended in a mistrial when the Assistant District Attorney waited until the day of Morgan’s testimony to enter into an oral plea agreement with him and to disclose the deal to the defense. At the second trial, a different Assistant District Attorney disclosed Morgan’s deal at the opening of the case. Morgan testified on direct that he watched a fight between Jenkins’s nephew and the victim on the day before the shooting and that Jenkins had told him that he was tired of people bothering the nephew. Id., at 288. Morgan also testified about the crime scene.
During cross-examination, Jenkins’s lawyer asked Morgan about the deal, but Morgan denied it. The examination proceeded with increasing specificity laying out the details of the deal, but Morgan remained adamant that he had no deal. When finally confronted with his contrary testimony at the first trial, where he admitted receiving a deal, he claimed to have been nervous the first time around. He “clarified” that although an offer was on the table, no deal existed. Id., at 288–89.
During all this testimony, the Assistant District Attorney did not correct Morgan’s misleading statements. Instead, she objected to the defense’s questions, and on redirect she reinforced the false impression by eliciting a negative response to the question whether the witness ever had any deals with her. Apparently, she thought than only bold-faced lies were improper and that hair-splitting would pass constitutional muster. Finally, in closing the Assistant District Attorney reminded the jury that Morgan had no deal with her, and she said that he had no reason to lie. Id., at 289.
After the jury returned a guilty verdict, Jenkins appealed relying upon Napue v. Illinois, supra, 360 U.S. 264. When the appeals fell on deaf ears, People v. Jenkins, 646 N.Y.S.2d 535, 536, 230 A.D.2d 806, 807 (2d Dep’t 1996); People v. Jenkins, 88 N.Y.2d 1069, 651 N.Y.S.2d 413, 674 N.E.2d 343 (1996) (Smith, J.) (denying leave to appeal); People v. Jenkins, 665 N.Y.S.2d 583, 245 A.D.2d 389 (2d Dep’t 1997) (dismissing petition for writ of coram nobis), and having fully exhausted the state process, Jenkins sought federal habeas relief. Jenkins v. Artuz, 294 F.3d at 289–90.
Obtaining habeas relief, of course, is no easy task. The deferential standards of review require, among other things, that a petitioner demonstrate the state court unreasonably applied clearly established federal law, as determined by the holdings of the Supreme Court. 28 U.S.C. § 2254(d)(1); see Morris v. Reynolds, 264 F.3d 38, 46 (2d Cir. 2001). Yet the panel found that Jenkins’s challenge to the Assistant District Attorney’s misconduct met these requirements. Citing the Supreme Court’s decisions in Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264, 269–70 (1959); and Mooney v. Holohan, 294 U.S. 103, 112 (1935), the panel concluded the right to have a trial free from uncorrected, misleading testimony is clearly established. Jenkins v. Artuz, 294 F.3d at 293. The state courts also unreasonably applied Napue and Giglio because they summarily found Jenkins’s claims to be “without merit,” without determining whether Morgan’s misleading testimony could reasonably have affected the outcome of the case. Id.
Finally, due to Morgan’s key role in the case, the panel found that his misleading testimony could reasonably have affected the outcome, see United States v. Agurs, 427 U.S. at 103, and the prosecution compounded the magnitude of the error when it implicitly vouched for the testimony. Jenkins v. Artuz, 294 F.3d at 293.
The error was sufficiently serious that, if the trial had been in federal court, the circumstances might have met the standards for granting a new trial, even if the evidence of Morgan’s misstatements was not discovered and disclosed until after the trial. See New Trial Motions Based on Evidence of Perjury: What Standard Applies?: RICO Report, The Champion (Oct. 2000). Although there has been some disagreement as to what standards apply to motions for a new trial where a prosecutor is unaware of the perjury, see id., the Second Circuit has observed that “[w]here the government was unaware of a witness’ perjury, . . . a new trial is warranted only if the testimony was material and ‘the court [is left] with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.’ ” United States v. Wallach, 935 F.2d at 456 (quoting Sanders v. Sullivan, 863 F.2d 218, 226 (2d Cir. 1988); citing United States v. Seijo, 514 F.2d 1357, 1364 (2d Cir. 1975)). Insofar as the Jenkins panel found that Morgan was the most critical witness, upon whose testimony the case essentially stood or fell, it is possible that panel could have concluded that in the absence of the misleading testimony the jury probably would not have convicted Jenkins.
In any event, on the petition for habeas relief, the panel was not impressed with the argument that Morgan’s testimony might be literally true under a very close reading of the transcript. Given the highly technical and clever testimony the Assistant District Attorney had developed, “[r]easonable jurors would have had to make a considerable inferential leap to conclude . . . that Morgan’s testimony was the subject of a bargain with the State. We think it far more likely that jurors would have concluded that Jenkins’s counsel tried but failed to establish that a deal had been made.” Id., at 293–94. Perhaps more troubling than the witness’s own statements were the misleading questions and comments of the Assistant District Attorney. “On redirect examination, her questions, while eliciting technically accurate testimony, were phrased so as to reenforce the false impression that no deal had been made: * * * [¶] Q: Did you make any deals with me? [¶] A: No. [¶] That testimony was probably true but surely misleading. [The Assistant District Attorney] did not follow up by eliciting testimony that although Morgan had made no deal with her, he had indeed reached one with another member of the District Attorney’s office.” Id., at 294. The prosecutor reinforced the misleading impression when she implicitly vouched for Morgan’s credibility in closing argument.
This was too much for the Second Circuit. While hesitating to call the prosecutor a liar, the panel wrote that the fact “a statement standing alone is factually correct obviously does not mean that it cannot mislead based on the natural and reasonable inferences it invites.” Id. As a general rule, when the prosecution misleads the court or the jury through this sort of deceptive hair-splitting, it violates Due Process. The panel had no difficulty in concluding this testimony was prejudicial. “[I]n a trial with only two substantive witnesses and no physical evidence linking [Jenkins] to the crime,” Morgan’s credibility was “a vital issue.” Id., at 295. Accordingly, there was a “reasonable likelihood that [Morgan’s] false testimony . . . affected the judgment of the jury.” United States v. Agurs, 427 U.S. at 103. Since the error cut to the heart of the case, the issuance of a writ of habeas corpus was appropriate.
Conclusion
More than forty-five years ago, the Supreme Court clarified that a prosecutor has a constitutional duty to step forward in open court to correct the false or misleading statements, even when those statements go only to the witness’s credibility. Even so, most prosecutors apparently believe they satisfy Due Process if they merely provide Brady/Giglio material to the defense team. Their rationale is that the burden of revealing the witnesses’ lies has shifted to the defense. This, however, is wrong.
Since the prosecution’s primary aim “in a criminal prosecution is not that it shall win a case, but that justice shall be done,” Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935), the Due Process Clauses of the Fifth and Fourteenth Amendment obligate federal and state prosecutors to correct the record when their witnesses mislead the tribunal. This duty requires an admission in open court even if the testimony is literally or technically true.
Plea agreements are now so widespread, and unfortunately prosecutors have engaged in increasingly sophisticated plans to satisfy the technical requirements of the disclosure rules while refusing to disclose anything. One troubling example is telling an attorney about a deal and relying on the lawyer to persuade the client to testify. When the witness is asked about what his lawyer told him about the deal, AUSAs have often objected based on the witness’s attorney-client privilege. See Piercing the Privilege: Informers’ Conversations with Their Lawyers: RICO Report, The Champion (August 2004). In these circumstances, the courts’ rulings as to the impermissibility of true-but-misleading testimony are increasingly important. Hopefully, defense counsel and prosecutors will recognize and abide by the holdings in Napue and its progeny so that false and misleading testimony will infect fewer trials.
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National Association of Criminal Defense Lawyers (NACDL)
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Judge David Finn
posted by Dallas Federal Criminal Defense Attorney - David Finn at 4:40 PM
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