As evidenced by the release of hundreds from death row by the Innocence Project, many of the DNA exonerations were not merely due to a simple mistake, but overt suppression of evidence from the defense, while putting forth a case littered with perjury. Although the road to freedom is not an easy one, it’s a road available if convincing evidence is present. This article briefly addresses a few key cases concerning the ramifications of presenting false evidence by the prosecution.
Duty of Prosecution of falsity after the fact: “If a lawyer has offered testimony or other evidence as to a material issue of fact and comes to know of its falsity, the lawyer must take reasonable remedial measures.” (Napue v. People of State of Ill., 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959))
Defense knowledge of falsity is not sufficient: “[T]he government’s duty to correct perjury by its witnesses is not discharged merely because defense counsel knows, and the jury may figure out, that the testimony is false. Where the prosecutor knows that his witness has lied, he has a constitutional duty to correct the false impression of the facts.” (U.S. v. LaPage, 231 F.3d 488, 492 (9th Cir. 2000))
When the prosecution fails to correct testimony of a prosecution witness which it knows or should know is false and misleading, reversal is required if there is any reasonable likelihood the false testimony could have affected the judgment of the jury. This standard is functionally equivalent to the “harmless beyond a reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. (In re Jackson (1992) 3 Cal.4th 578, 597-598, 11 Cal.Rptr.2d 531, 835 P.2d 371.)
In United States v. Wallach, 935 F.2d 445, 473 (2nd Cir. 1991), the court found “the perjury of one of the government’s key witnesses infected the trial proceedings and interfered with the jury’s [court’s] ability to weigh his testimony.” Therefore, taking a cookie cutter approach to cut out the perjury and allow the remaining witness statements to stand is simply unacceptable.
I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court’s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633.