Getting Away With Perjury

by Simon Kelly

The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

Prosecutors are viewed as either the oppressors of the wrongly accused, or the soldiers of justice. Regardless of what side you land on, prosecutors have the highest duty to justice. The prosecutor is the person who decides the State is going to pursue and charge a defendant with a crime. So, understandably, the prosecutor should have an additional ethical obligation to ensure that the evidence he or she produces is true.

There have been controversial cases surrounding the conduct of prosecutors throughout the history of our legal system. However, it has been well established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must be defeated by the Fourteenth Amendment, Mooney v. Holohan, and Pyle v. Kansas. 294 U.S. 103 (1935); 317 U.S. 213 (1942).

In the 1959 case, Napue v. Illinois, the Supreme Court of the United States unanimously ruled that a prosecutor that failed to correct a false statement made by one of his or her witnesses deprived the defendant of his or her constitutional right to Due Process. 360 U.S. 264. This case added the false testimony of a State’s witnesses to being equal to knowingly admitting false evidence. Napue went as far as to say that even if the false testimony is not solicited when the State does not correct false evidence when it appears, the same result is obtained. Id.

In Giglio v. United States, the Court held that the prosecutor has an obligation to correct false statements made by the government’s witness about whether he or she was offered a deal or a chance not to be prosecuted for a crime. 405 U.S. 150 (1972). Moreover, a government attorney’s promise or statement must be interpreted as the government’s intent to make that commitment, even if he or she is not the primary attorney for the case. Id.

Even with these long-standing rules of judicial prosecutorial obligation and ethical obligation, the Court of Appeals for the Seventh Circuit, in October of 2017, held in a five to three split that the Supreme Court of the United States did not mean that the prosecutors had a duty to disclose perjury or any false statement from its witnesses. Long v. Pfister, No. 13-3327, 2017 U.S. App. LEXIS 20611 (7th Cir. Oct. 20, 2017). The Seventh Circuit further held that no harm has occurred as long as the lie and the truth are known to both prosecution and defense, and as long as, at some point, a person refers to the statement being false. Id. Regardless of how credible or ineffectual that person is, it is still up to the jury to believe if there was a lie.

In a criminal trial, the prosecutor will talk about justice for the victim(s), and state that he or she will prove the defendant’s guilt. This role as the seeker of truth often places the prosecutor in a more favorable light than that of the defense attorney, from the perspective of the jury. When a prosecutor tells the court, or the jury directly, that one of its witnesses made a false statement or lied, that statement completely changes how that information is received. Leaving it to be countered by another witness does little to correct the lie, that the prosecution knows is being stated.

This decision will do far more harm than good. Not only is this an overstep by the Seventh Circuit, that claims that every other court has gotten it wrong for 58 years, but it is also a removal of liability on behalf of the prosecutor for verifying the truth of its witness. This holding indirectly opens the door to legal and ethical misconduct that has expressly been condemned in the past. This change in the rule could encourage prosecutors to claim that they did not know whether a statement was a lie and that a jury should decide the veracity of a witness. So long as the prosecutor states that he or she didn’t only rely on lies but relied on the witness to tell his or her truth.


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