Prosecutors play a “special role” in our justice system. Strickler v. Greene, 527 U.S. 263, 281 (1999); West v. State,1 Wis. 209, 232(1853)(when the State commences a criminal prosecution, it is as much interested in vindicating the innocence of one wrongfully accused, as in convicting one who is really guilty). Like governmental knowledge of exculpatory materials, governmental knowledge of perjury is, Kyles confirms, a Brady v. Maryland, 373 U.S. 83 (1963). “situatio[n].” Kyles v. Whitley, 514 U.S. 419, 433 (1995). Charging prosecutors with knowledge of all persons “acting on the government’s behalf in the case,” Kyles, 514 U.S. at 437, encourages them to prevent perjury in the first place.
Likewise, the prosecution has the affirmative obligation to respect the constitutional rights of a defendant, and to avoid conduct that would violate those rights. ”(The prosecutor) is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.” Berger v. United States, 295 U.S. 78, 88 (1935). As a “sworn minister of justice,” a prosecutor “must remember that, though unfair means may happen to result in doing justice to the [defendant] in the particular case, [ ] justice so attained is unjust and dangerous to the whole community.” O’Neil v. State, 189 Wis. 259, 261-62, 207 N.W. 280(1926). “In a government of laws, existence of government will be imperiled if it fails to observe the law scrupulously. . . . Crime is contagious. If the Government becomes a law breaker, it breeds contempt for law.” Olmstead v. United States, 277 U.S. 438, 471(1928)(Brandeis, J., dissenting).
It certainly is not surprising that, in their landmark study of errors leading to the conviction of innocent people, Professors Radelet and Bedau discovered that the “most frequent [is] perjury by prosecution witnesses.” M. Radelet, H. Bedau, C. Putnam, In Spite of Innocence 18 (1992). See also H. Bedau & M. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 56-57 (1987);id., at 60 (describing witness error and perjury in particular as “by far the most frequent cause of erroneous convictions,” accounting for twice as many erroneous convictions as any other error). See also Barry Scheck, Peter Neufeld & Jim Dwyer, Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (2000) (of the cases where a defendant’s innocence could be established by DNA evidence, 21% of the erroneous convictions were based in part on false or misleading testimony by jail-house informers).
How do these obligations translate in domestic violence cases where “[v]ictims of domestic violence are more prone than other crime victims to recant or refuse to cooperate after initially providing information to the police. Recent evidence suggests that 80 to 85 percent of battered women will recant at some point.” Tom Lininger, Prosecuting Batterers After Crawford, 91 VA. L. Rev. 747, 768 (2005). See also, State v. Coppage, 124 P.3d 511, 515 (Kan. Ct. App. 2005) (noting domestic violence victims “often recant their initial statements to police”); State v.Stringer, 897 P.2d 1063, 1066 (Mont. 1995) (discussing victim who provided written statement of repeated stabbing from defendant, but victim later testified that she provided a false statement and had been cut when defendant attempted to prevent her from slitting her wrists).
Must a prosecutor turn over to the defense a statement by an alleged victim which indicates the original story told to the police by the victim was not true? Because recanting involves an attempt to withdraw a prior statement, it almost always involves falsity in either the original or latter statement. So can an ethical prosecutor simply make believe an alleged victim has not recanted and not disclose the recantation to the defense because, well, the prosecutor knows all women will recant their story? After all, in 2004 the National District Attorneys Association said that domestic violence alleged victims who recant should get a get out of jail free card and not be held accountable for presenting false evidence. National District Attorneys Association Policy Positions on Domestic Violence (Oct. 23, 2004) at p.13
Absolutely not! A prosecutor must ” make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” American Bar Association. Model Rules of Professional Conduct. Rule 3.8 Special Responsibilities of a Prosecutor. (2012). “Truthful testimony is essential to the administration ofjustice and the functional capacity of every branch of government.” Jessica Fischweicher, Perjury, 45 AM. CRIM. L REV. 799,799(2008). If there are no consequences for dishonesty in the courtroom the system is tacitly sanctioning dishonesty. “The judicial branch, unlike the executive and legislative branches of government, depends almost entirely on its perceived legitimacy and moral authority to carry out its important functions.” John L. Watts, To Tell the Truth: A Qui Tam Action for Perjury in a Civil Proceeding Is Necessary to Protect the Integrity of the Civil Judicial System, 79 TEMP. L REV. 773, 784 (2006).
The prosecution has the affirmative obligation to respect the constitutional rights of a defendant, and to avoid conduct that would violate those rights. ”(The prosecutor) is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.” Berger v. United States, 295 U.S. 78, 88 (1935). As a “sworn minister of justice,” a prosecutor “must remember that, though unfair means may happen to result in doing justice to the [defendant] in the particular case, [ ] justice so attained is unjust and dangerous to the whole community.” O’Neil v. State, 189 Wis. 259, 261-62, 207 N.W. 280(1926). “In a government of laws, existence of government will be imperiled if it fails to observe the law scrupulously. . . . Crime is contagious. If the Government becomes a law breaker, it breeds contempt for law.” Olmstead v. United States, 277 U.S. 438, 471(1928)(Brandeis, J., dissenting).
Simply put, the prosecution has a duty to not present testimony it knows to be false. Napue v. Illinois, 360 U.S. 264, 269-70 (1959); Mooney v. Holohan, 294 US. 103, 112 (1935); Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d 1109, 1118-19 (9th Cir. 2001).The State and its representatives to protect the system against false testimony. Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d at 1118. “Given the manifest reason to question the veracity of the prosecution’s witnesses, the Constitution required a prompt pretrial investigation of the integrity of the government’s evidence before the witnesses were called to the stand.” Id., at 1123. Emphasis added. It is for this reason–the clear threat to the innocent–that “few things are more repugnant to the constitutional expectations of our criminal justice system than covert perjury, and especially perjury that flows from a concerted effort by rewarded criminals to frame a defendant.” Bowie, 243 F.3d at 1114. In a very real sense, “false testimony and false evidence corrupts the criminal justice system and makes a mockery out of its constitutional goals and objectives.” Id., 243 F.3d at 1124. All “perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the sole ultimate objective of a trial.” In re Michael, 326 U.S. 224, 227 (1945). Again, because recanting involves an attempt to withdraw a prior statement, it almost always involves falsity in either the original or latter statement.
Where the Government knew or should have known of false testimony by one of its witnesses, a conviction must be set aside unless “there is no reasonable likelihood that the false testimony could have affected … the jury.”Shih Wei Su v. Filion,335 F.3d 119, 127 (2d Cir. 2003) (internal quotation marks and citation omitted). A conviction will fall when the prosecution, “although not soliciting false evidence, allows it to go uncorrected when it appears,” even though the testimony may be relevant only to the credibility of a witness. Giles v. Maryland, 386 U.S. 66, 74 (1967). Therefore, the prosecutor’s duty to protect the criminal justice system is not discharged in a case simply by ignoring the content of a recantation letter and by turning it over to the defense. Bowie, 243 F.3d at 1117. Instead, it must be stressed the constitution requires prosecutors to promptly investigate a recantation letter and to interrogate the witnesses about it. Id.“A prosecutor’s ‘responsibility and duty to correct what he knows to be false and elicit the truth’ requires a prosecutor to act when put on notice of the real possibility of false testimony.”Bowie, 243 F.3d at 1117-18,quotingNapue v. Illinois, 360 U.S. at 269-70. The underlying principle is clear. Napue v. Illinois, 360 U.S. at 269.Theprosecutioncannot circumvent this prohibition simply by informing the defense of the taint. Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d at 1118.
A good summation of the law on this point was given in Commonwealth v. St. Germain, 381 Mass. 256, 261 & n.8 (1980):
The prosecutor’s office is . . . the spokesman for the Government.” Giglio v. United States, 405 U.S. 150, 154 (1972). “The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State’s Attorney, were guilty of the nondisclosure.” Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842, 846 (4th Cir. 1964). “The prosecuting attorney’s obligations . . . extend to material and information in the possession or control of members of his staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office.” A.B.A. Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial 2.1(d) (Approved Draft 1970). “To the extent this [requirement] places a burden on . . . prosecution offices, procedures and regulations can be established to carry that burden and to insure communications of all relevant information on each case to every lawyer who deals with it.” Giglio v. United States, supra.
Specifically it should be remembered that victim witness advocates “guide crime victims, their family members, and witnesses through the criminal justice process. They explain the process of a criminal prosecution; notify victims and witnesses of the scheduling of proceedings and the final disposition of a case; and provide information about the availability of witness protection, witness fees, financial assistance, and other social services, including creditor and employer intercession services, where appropriate. They help victims and witnesses “cope with the realities of the criminal justice system and the disruption of personal affairs attending a criminal prosecution during a time of personal trauma.” Commonwealth v. Harris, 409 Mass. 461, 470, 567 N.E.2d 899 (1991), Moreover, performance these functions had traditionally fallen to the prosecutors themselves but with the increase in crime prosecutors and the perception that the prosecution was not victim friendly, many States created victim-witness assistance programs and hired personnel to focus directly and solely on protecting victims’ rights. Commonwealth v. Bing Sial Liang, 434 Mass. 131, 134 (2001). Advocates are included in the statute’s definition of “prosecutor” and generally are employees of the prosecution. Id at 135. Therefore, “the function that advocates perform as part of the prosecution team, the work of advocates is subject to the same legal discovery obligations as that of prosecutors and their notes are subject to the same discovery rules.” Id.
This is because “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995); Cone v. Bell, 129 S. Ct. 1769 (2009) (obligation to disclose evidence may be broader under statutory and ethical rules); Commonwealth v. Frith, 458 Mass. 434, 440-441 (2010)(duty of reasonable inquiry); Commonwealth v. Lykus, 451 Mass. 310 (2008) (prosecution has duty to learn of exculpatory evidence known to others acting on the government’s behalf, here the FBI); Commonwealth v. Tucceri, 412 Mass. 401, 407 (1992); Giglio v. United States, 405 U.S. 150, 154 (1972)). Cf. Commonwealth v. Connor, 392 Mass. 838, 851 (1984) (could be argued that composite knowledge of two assistant district attorneys constituted exculpatory information).
Further the U.S. Supreme Court has therefore urged “the prudent prosecutor . . . [to] resolve doubtful questions in favor of disclosure.” Kyles v. Whitley, 514 U.S. 419, 439 (1995) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976)) As the Supreme Judicial Court has noted, in the case of an important witness “the defense will properly view even relatively minor discrepancies in prior statements as exculpatory . . . prosecuting attorneys [should] become accustomed to disclosing all material which is even possibly exculpatory, as a prophylactic against reversible error and in order to save court time arguing about it.” Commonwealth v. St. Germain, 381 Mass. 256, 262 n.10 (1980), citing, Commentary to A.B.A. Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial 2.1(d) (Approved Draft 1970). See Commonwealth v. Wilson, ante 90, 107 n.37 (1980). See United States ex rel. Annunziato v. Manson, 425 F. Supp. 1272, 1280 (D. Conn.), aff’d 566 F.2d 410 (1977).