Joel Cohen
Joel Cohen ()

Typically, one doesn’t need a videotape or countervailing testimony from an amalgam of the Pope, Abraham Lincoln and Tom Brokaw to know that a witness has lied. Sometimes a lie is simply unmistakable—”It’s as plain,” a trial lawyer might tell a jury, “as the nose on my face.” Indeed, a false statement may be clear whether it occurs in the real world, or on the witness stand in the courtroom’s pristine atmosphere. Often, one simply doesn’t need an infallible lie detector, even if such a thing existed, to reach a conclusion about witness falsity.

The Rules

The consequences in the criminal courtroom regarding a proponent’s offer of what is—or turns out to be—false testimony are somewhat different, however, depending on which side proffers the testimony. No lawyer can “knowingly” make or fail to correct “a false statement of material fact” and, if the lawyer learns that material evidence is false, he “shall take remedial measures, including, if necessary, disclosure to the tribunal.” But: “A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.” NY Rule of Professional Conduct 3.3(a), ABA Model Rule of Professional Conduct 3.3(a). Yes, a defendant has the absolute right to testify even if his attorney doesn’t believe his account, as long as the attorney doesn’t actually “know” the testimony would be false. Meaning, an attorney must call his insistent client (but not a witness) to the stand notwithstanding his personal beliefs as to that testimony.

A prosecutor’s burden is different. A “prosecutor … shall make timely disclosure … of evidence or information … that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence … ” NY Rule 3.8(b); ABA Rule 3.8(d). See ABA Rules for the Prosecution Function 3-3.11. We’re not talking about Brady material, where criminal defendants have a due process right to receive favorable, material evidence. Brady v. Maryland, 373 U.S. 83 (1963). Look again at the language of Rule 3.8—a prosecutor must disclose if information tends to negate guilt. Meaning, the obligation goes “beyond the corollary duty imposed upon prosecutors by constitutional law.” ABA Formal Op. 09-454, at n 17 quoting commentary to 3-3.11.

A prosecutor’s duty is not simply to win, but to assure that justice prevails. Berger v. U.S., 295 U.S. 78 (1935) (a prosecutor is a “minister of justice”).

Trial Testimony

So what if a prosecution witness lies? Not that the prosecutor suborned perjury, he just failed to correct the record. In Alcorta v. Texas, 355 U.S. 28 (1957), a defendant claimed he killed his wife in the heat of passion because of her infidelity. The lover testified for the prosecution at trial and claimed they were not having an affair, despite having earlier told the prosecutor the opposite. When the witness later gave a sworn statement that he lied at trial, and the prosecutor acknowledged the witness’s pre-trial disclosure, the judgment was reversed on due process grounds.

In People v. Savvides, 1 N.Y.2d 554 (1956), the prosecutor stood silently by while a witness lied about his cooperation agreement. Defendant learned about it after trial but before sentencing. The conviction was reversed. In Napue v. Illinois, 360 U.S. 264 (1959), the court relied on Savvides to conclude that where a witness lied about a cooperation deal, the conviction must be reversed.

Grand Jury Testimony

Is testimony before a grand jury different? In People v. Pelchat, 62 N.Y. 2d 97 (1984), while testifying before the grand jury, the police officer identified the defendant (among many charged). David Pelchat agreed to plead guilty. However—after the grand jury testimony, but before defendant pleaded—the officer told the prosecutor that he misunderstood the question. Pelchat was in the house when arrested, but was not observed participating in the operation (transporting bales of marijuana). The officer had answered incorrectly because he thought the ADA was merely asking for the names of those arrested. This came to light—including the officer’s disclosure to the prosecutor—when the officer testified at another defendant’s trial. From this, Pelchat argued that the indictment was fatally defective and his conviction reversible. The Court of Appeals agreed—the prosecutor “knew” of the officer’s mistake before the guilty plea and was obliged to correct the proceedings which he knew relied on false testimony.

Federal criminal procedure is generally less demanding on prosecutors. First, there’s no routine pre-trial court inspection of grand jury presentations. Second, federal indictments may rely exclusively on hearsay (as long as the grand jury knows it is only receiving hearsay testimony). Yet, the rules at play are the same. In particular, Pelchat relied on U.S. v. Basurto, 497 F.2d 781 (9th Cir. 1974).

There, before Basurto and his codefendants were tried, Barron, a cooperator, testified that he had committed perjury at the grand jury concerning a key issue. Upon learning of this falsity, the prosecutor informed counsel—but not the court or the grand jury. He opened and actually acknowledged the false testimony— assuring the trial jury that Barron would tell the truth. The circuit court’s remonstration in reversing the conviction was clear:

At the point at which he learned of the perjury before the grand jury, the prosecutor was under a duty to notify the court and the grand jury, to correct the cancer of justice that had become apparent to him.

Now, in these cases, the fact of perjury, whether material or not, was unambiguous—the prosecutor knew about it during, or shortly after, the witness testified. It’s not always so clear, however, and the conclusion as to perjury often depends on the prosecutor’s subjective assessment of the testimony in question, particularly when viewed against all of the other information he has. It may also rely, frankly, on the prosecutor’s almost institutional willingness to give the witness, particularly a police witness, the benefit of the doubt—the kind of “benefit” that many judges also willingly give the police, particularly those who appear before them routinely.

Remember ‘Dropsy’?

Consider “dropsy” or “testilying”: there was a time when prosecutors (and judges), routinely accepted the word of police who “observed the defendant who dropped the contraband as I approached him and my eyes never left the bag as it fell from the defendant’s hand to the ground.” At least by today’s rules, what a lawyer “knows” “may be inferred from circumstances.” NY Rule 1.0(k); ABA 1.0(f).

Nevertheless, it would be extremely hard to pin “knowingness” on a prosecutor merely because he’s heard a police officer (or officers) often tell the same story, even if it lacks credibility simply because of its routineness. Integrity, though, sometimes requires proactive measures. In 1971, amid a burgeoning scandal over dropsy testimony in narcotics and gambling cases, the New York Court of Appeals in People v. Berrios, 26 N.Y. 2d 261, had five related appeals raising claims of police perjury.

The legendary Frank Hogan, District Attorney of New York County, affirmatively supported the defendants who argued that the burden to establish the truth of dropsy testimony should shift to the prosecutor—meaning, Hogan proposed heightening his prosecutors’ burden of proof.

Hogan, thus, was willing to take that bold across-the-board action for the many cases his office would prosecute. What should that say today about the “integrity”— even if you don’t call it ethical—obligation of the prosecutor who believes, even without “knowing,” that his witness, police or otherwise, has lied in the case he is called upon to prosecute? As that minister of justice—now 25 years after the Mollen Commission—shouldn’t he be held to that higher standard?

If you are interested in the subject of the credibility of police testimony, on Tuesday, Oct. 3, 2017, beginning at 6 p.m., the New York City Bar will host a program entitled “Police Officer Testimony: A Quarter of a Century After the Mollen Commission.” The speakers are NYPD Deputy Comm. for Legal Matters Lawrence Byrne; Prof. Alan Dershowitz; Justine Olderman, Bronx Defenders Srvcs.; Justice Dineen Riviezzo; Manhattan DA Cy Vance; and moderator, Hon. Barry Kamins (ret.).