YALQ: Prosecution Perjury

Factual Questions
1

I promise that this question is not inspired by Law and Order or The Practice.

Last month, the SCOTUS stayed the execution of Delma Banks. This made the news mostly because Banks had been scheduled to be the 300th Texas inmate executed. I’m not asking about the death penalty itself, but about something I read in the amicus curiae brief filed by Justices John J. Gibbons, Timothy K. Lewis, and William S. Sessions and Thomas P. Sullivan.

William Sessions was Director of the FBI and a Federal judge, Gibbons and Lewis are former Federal Appeals Court judges, and Sullivan was the US Attorney for Chicago. Obviously, these men are legal experts, so I’m inclined to believe any assertions they make.

Which is why I was suprised to see this:

emphasis mine

and this:

What is the protocol here? Boggles the mind. When a prosecution witness lies on direct, is the prosecutor required to correct the testimony then and there? Or does the prosecutor make some sort of secret lawyers-only signal to the defense that cross should be brutal? Does the prosecutor go up to the bench and say “Ya know, my witness was full of it back there. You should instruct the jury to disregard.”

OK, I’m being very facetious here. I don’t think any of those things happen. Which proves the point, that I can’t think of any plausible method for the prosecutor to disclose that his or her witness was perjuring him- or herself.

What’s the actual courtroom reality?

2

Well, you certainly can’t leap in front of your own witness and scream dramatically, “That’s a LIE, sir!”

Before I address the actual question you’ve asked, I should point out that in order to win a Brady-type motion, you must be able to show both that the violation occurred AND that, had the defense possessed the withheld exclupatory material, there is a reasonable probability that the outcome of the trial would have been different.

But you’re not asking what the appellate ruling should be. You’re asking how the issue should have been handled at the trial level in the first place.

If a witness other than accused testifies falsely, it presumably comes as a surprise to the examiner. In other words, we’re asking what the ethical course of conduct is; we may safely conclude that this was not arranged ahead of time.

The examiner has several options: he may ask the question again, slightly differently, if it appears his witness has simply made an error. If it seems obvious that his witness has simply decided to lie, he may request a brief recess and talk to the guy to get him back on track. When testimony resumes, he can rehabilitate his witness… (“A moment ago, I asked you if you had ever served as a paid informant, and you said you hadn’t. Having had a chance to refresh your recollection, would you like to change that answer?”)

If the witness refuses to testify truthfully, then the lawyer may choose to impeach him. He’d probably need to make an offer of proof to the judge ahead of time, explaining why he suddenly needs to treat his witness as hostile. (“You Honor, Mr. Farr’s claim that he was never an informant came as a surprise to us; we expected he would testify truthfully that he was a paid informant from 1993 to 1996.”) Or he may simply choose to ask no more question, and move that the testimony be stricken.

That in turn creates a problem for the other side. The jury has heard the perjured testimony, and sometimes it’s not enough for the judge to order it stricken - “you can’t unring the bell.” The opposing side should be given an opportunity to offer its own cure - a stronger curative instruction, a chance to cross-examine and impeach, or even a mistrial. The latter remedy is obviously reserved for a statement so monumental that the jury is hopelessly poisoned and a fair trial no longer possible.

If the opposing side is the prosecution - that is, if it was a defense witness that lied - a mistrial has problems; it may implicate double jeopardy. And this doesn’t apply to the defendant himself; who has an absolute right to testify without his attorney moving that it be stricken – even if the attorney knows it to be false.

I hope that wasn’t too complicated.

  • Rick
3

Half an hour from question to well-formulated and definitive answer. You, sir, are a prince among men.

Follow-up question: Have you seen a prosecutor impeach his/her own witness? How often does this happen?

Thanks for the help.

4

I’ve seen it happen a couple of times, but not quite for the reasons described above.

A notorious spawning ground for these sorts of things were domestic violence complaints. The victim, who has previously made inculpatory statements about the abuse to police, is often the only witness to the abuse, and sometimes would experience a change of heart by the time the prosecution called her to the stand. If she changed or minimized her story on the stand, the prosecution was put into the unenviable position of impeaching her with her prior inconsistent statements.

That differs from your case above, of course, in that the prosecution has every reason to WANT to impeach the recalcitrant abuse victim; in the OP’s case, the prosecution is acting out of ethical obligation even though it hurts his case. I’ve never seen a situation arise in real life in which that occurred.

I have had prosecutors nolle pross charges when they didn’t trust the testimony of their witness(es), but that happened well before a trial got underway.

  • Rick
5

I’m going to hijack my own thread, if I may. This is related in that it is also about impeaching witnesses and striking testimony.

Using the following hypothetical:

I’m called as an expert witness in a slip-and fall trial. It doesn’t really matter for which side, but the rest of the scenario is more plausible if I’m called by the plaintiff. My credentials are established as an expert on head trauma and brain injury, professor and chief of this, that, and the other. During my testimony, I state that every patient with a complaint of a fall on a hard surface should receive a CT scan.
During cross, the defense attorney asks if I have a private practice, which I don’t. He also asks if I believe health insurance will reimburse for CT scans where the patient denies hitting his or her head. I state that it is the treating physician’s ethical duty to order a CT scan on every fall victim, regardless of whether there is a possibility of reimbursement.
Bzzzt! I have not been established as an expert on medical ethics. I was called and established as an expert on the standard of care for head injuries. But once established as an expert, that “aura” of expertise will carry over to all of my testimony, even if I stray beyond my area of expertise as established.

I assume the defense attorney (if competent) will seek to question my (nonexistant) credentials as a medical ethicist, and so impeach at least that portion of my testimony.

The question: Does the justice system consider this to be all the remedy that is required? Will the defense move to have some or all of my testimony stricken? As a broader question, are there standards about what to do with the testimony of an expert when that testimony is beyond the established area of expertise?

Feel free to correct me on any of the assumptions I have made, both in the scenario and the questions.

6

Well, remember that civil law is not my area of expertise. We have a nomber of posters who have experience in this area; perhaps one will chime in.

My untutored reaction to your hypothetical is that there’s very little damage done – in other words, for a head-trauma expert physician to say that the standard duty of care is do a CT scan, and then to also offer his view that it’s ALSO an ethical requirement is more or less cumulative.

I say this only because I think you’d have a tough time talking the judge into any sanction more severe than instructing the jury to disregard the witness’ comment.

But here’s the general case:

When a witness offers improper testimony, and the opposing side timely objects, they are within their rights to ask for some cure. As a rule, the jury is presumed to follow the judge’s instructions, so, as a rule, it’s a sufficient cure for the judge to tell the jury to disregard. The opposing side is also permitted, of course, to offer up their own expert to contradict the testimony, as well as vigorously cross-examine the witness in the manner you mention.

In your hypothetical, the issue is not a pivotal one. The possible negligence of the treating physician in not ordering a CT might go to damages, under some sort of failure to mitigate or independent intervening act theory - smarter people than I need to answer this in more detail.

If the testimony were more serious, and the opposing side could show to the judge’s satisfaction that his side could now never get a fair trial because of this damaging and improperly admitted testimony, the judge could certainly declare a mistrial.

In short: as I see it, the court-ordered remedies are: striking the remark, strong curative instruction to the jury, mistrial. The latter is highly unlikely.

The appropriate course would be, as you suggest, a strong cross to eleict an admission that the witness has no particular expertise in the area of ethics, followed later by your own expert, assuming he’d say something useful.

  • Rick
7

Thanks. I specifically set up a standard-of-care expert because (as I understand this) that can establish misfeasance or malfeasance, an element of malpractice. I am not, in reality, such an expert, but my wife has been deposed as one.

I was thinking that this was a much less severe situation than the one in my OP, so thanks for confirming that.

I probably should just start reading some Nolo Press books, but thanks also for sharing your knowledge here.