You’re reading someone who’s got most of his legal “knowledge” from Law & Order, and even my question is about an episode tonight, It’s about knowingly allowing a witness to perjure himself.
The background facts:
There is a murder. A witness for the prosecution testifies, but the jury cannot reach a verdict and a mistrial is declared.
A second jury is empanelled and as the 2nd trial is about to begin, the prosecutors and witness meet outside of court to review the upcoming testimony. During this run-through, the witness embellishes his story with an additional claim that the prosecution soon knew was a lie. He said he saw the murder weapon in the suspect’s room a week ahead of the murder, when it had actually been bought the day before.
The next day in court McCoy asked a question to elicit the lie, walked back to his chair and basically gave a high-dign to the defense attorney by whispering, “You owe me one” to her. She broke the witness on the stand and it becomes clear that he is the killer.
There was no prolinged discussion about WHY pursue this tactic, as it didn;t really prove anything but would probably completely undermine his testimny.
Is this a legally or ethically justifiable tactic? And I’m not talking about personal ethics, I’m talking about whatever codes they are bound to as members of the court and bar.
IANAL etc. I have some recall of this episode but nothing of the specifics. Based on your description, McCoy suborned perjury by asking a question he knew would be answered with a lie. This would be as I understand the law both a criminal act and a violation of the canon of ethics (perpetrating a fraud upon the court). Now there may have been on the show some hyper-technical explanation as to why McCoy’s act was OK but if there was I don’t remember it.
McCoy would likely get away with it because who’s going to complain about it? The defendant, who was innocent and freed? His lawyer? The witness?
Far better legal minds than mine will need to weigh in with an authoritative answer, but I believe that subornation of perjury requires more than that the attorney believe the witness will lie - he must coach or pressure the witness to lie.
and there’s no requirement that the statement be coached or pressured. So if McCoy knew that the witness would lie if asked the question and asked it anyway he suborned perjury. I realize this isn’t case law or anything but I don’t think you’re correct.
In this case, the witness was going to testify to something that could not have been true because it was contradicted by physical evidence.
(witness testified to seeing a jar of pesticide a week before it had been purchased. they had a receipt in evidence, proving when it had been purchased) It was subornation.
What was McCoy going to do if the defense lawyer didn’t get the “You owe me” remark? The defendent would be convicted.
Prosecutors also generally have a duty to provide exculpatory evidence to defendants. While this is a roundabout method of doing it, this could be viewed as the prosecutor fulfilling that duty.
My state (KY) does not have an offense called “Subornation of Perjury”. This situation would be covered by the complicity statutes.
In order to be guilty of first degree perjury, (KRS 532.020) a person must
– make a material false statement
– which he does not believe
– in an official proceeding
– under oath
Based upon the facts given, it appears that the witness is guilty of first degree perjury.
Complicity is governed by KRS 502.020. In order to be liable for an offense committed by another person when with the *intention of promoting or facilitating * the commission of the offense, he:
– engages in a conspiracty with the offender
– aids or counsel the offender in planning or committing the offense
– fails to prevent the commission of the offense (if there is a legal duty to do so)
I would question whether the prosecutor has the intention of promoting or facilitating the witnesses commission of the offense of perjury. Clearly the prosecutor is promoting the act of perjury by asking the loaded question. However, the “high sign” to the defense attorney indicates that he did not intend the witness to sucessfully perjure himself. One might wonder if the witness could argue that he’d been entrapped.
If I were defending the prosecutor from a charge of complicity to perjury, I would argue justification. KRS 503.030 says, “Conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute dfeining the offense charged.” I think suborning a little perjury to prevent the conviction of an innocent man would qualify.
I remember the episode-it was on the other night, in fact. If it helps, the witness that Jack wanted to catch in a lie (perhaps that was what he was doing) was the actual murderer, and not the defendent.
The perjury didn’t directly relate to the guilt or innocence of the defenfant, or the witness for that matter. For instance, the witness might havr offered an ecplamation something like, “I was convinced of her guilt and didn’t want this to go on to yet ANOTHER trial, so I made up something to make her seem guiltier.” In which case the perjury would be discovered, but it’s arguable whether or not there would still be a conviction.
This episode interested me in that usually, when Jack or one of the cops is pondering some unconventional or outright illegal tactic, some partner or assistant pops onto the screen with a line like, “You’re crossing a line there, (Jack (or Lenny or whoever)”. They went ahead with this scheme with hardly a second thought.
I haven’t come across a case of suborning perjury, but my understanding also is that it requires more than creating an opportunity for a witness to perjury him- or herself. It requires actual encouragement of the act of perjuring oneself. It’s the difference between asking a question, and leaving the opportunity for you to tell a lie (not subordination of perjury) and coaching or encouraging you to lie (subordination of perjury).
It is not uncommon that a lawyer will question an adverse witness in a way that leaves open the opportunity for the witness to perjure him- or herself, since proving that the witness is a big fat liar is a pretty fullproof way to discredit him or her. The lawyer who does so is not suborning the perjury merely by creating the opportunity for perjury to be committed. That certainly would be an example of “getting” perjured testimony, but I have never heard anyone consider it to be subordination of perjury. Subordination of perjury requires active encouragement or assistance; it requires something more than “opening the door” for perjury to be done.
But wasn’t the witness in this instance a prosecution witness? There seems to me a difference between questioning an adverse witness in a way that lets him hang himself and knowingly putting a witness for your side on the stand with the intent of allowing him to commit perjury, regardless of the intended result. McCoy’s whole scheme seems overly complicated anyway; if he no longer had a good faith belief in the guilt of the defendant, wouldn’t the proper course of action be simply to drop the charges?
Of course that wouldn’t be as dramatic…
The whole suborning perjury thing seems to come up in TV Law on the defense side much more commonly anyway. Rarely an episode of The Practice went by without one of the lawyers for Donnell, Young, Dole & Frut advising a client not to tell them what really happened because they’d be stuck with that version if they had to put the client on the stand. The Practice has spawned more than one thread on the topic of defense attorneys suborning perjury and having witnesses testify in the narrative.
I haven’t seen the episode in a while, but if I remember correctly, the lie itself didn’t cause McCoy to doubt the defendants guilt. The lie was told fairly late in the game- after all, there had already been a trial before the witness embellished his story. If McCoy believed she was guilty before the embellishment, there’s no reason for the embellishment itself to change his mind- maybe the witness was mistaken about when he saw it, or maybe he didn’t want there to be a third trial. I vaguely remember something else happening during the testimony that caused McCoy to ask that question - I think the witness testified to some incident involving the defendant that he had never before mentioned.
The question was first asked during an interview btween the first and second trial. They knew the answer was a lie before they put in on the stand in the 2nd trial.
FWIW, there was a line about how, since the jury had already been seated, jeopardy was already attached, and if they dropped the charges, the defendant would be immune from being re-charged later, should more evidence appear.