The publicity attendant to a witness’s recantation of an earlier inculpatory statement, where the recantation is believed to be in accordance with the facts, has led the prosecutor to support the defense motion to vacate the conviction of those wrongfully incarcerated. See Ronald Sullivan, “How Brooklyn’s Conviction Review Unit Became a National Model,” Kings County Politics, Aug. 25, 2017; Andrew Denney, “Queens DA Firm in Refusal to Open Conviction Review Unit,” New York Law Journal, March 1, 2017; “Manhattan District Attorney Creates Wrongful Convictions Unit,” Innocence Project.

But what of a situation where the sole government witness recants but the prosecution does not believe the recantation? This article deals with the parameters of what a federal prosecutor in a criminal case may do when a witness it must call on a post-conviction hearing or trial will withdraw an earlier inculpatory statement. In many ways, the article serves as a primer to prosecutors and to defense lawyers, who also may find it necessary to call a hostile witness, knowing that the witness will reject what he/she has earlier said.

The Facts