The Seventh Circuit on June 17 issued a ruling in a drug case that appears to have general applicability to criminal cases, including white-collar cases. In United States v. Freeman, 09-cr-4043, 2011 WL 2417091 (7th Cir., June 17, 2011), the Seventh Circuit affirmed a district court’s grant of a new trial on the ground that the prosecutors presented testimony of a key cooperating witness on the stand who they knew or at least should have known was lying. In that case, a defense lawyer, after reading the witness’s grand jury testimony, sent the prosecutors a letter stating that the defendant had been incarcerated at the time the witness claimed the defendant had participated in important events in the charged conspiracy. The prosecutors apparently failed to investigate this claim and called the cooperating witness, who testified falsely (the prosecutors did later stipulate that the defendant had been incarcerated at the time of the events the witness described).

The court’s opinion forcefully stated the prosecutor’s obligation to present accurate and candid information:

[T]he governing principle is simply that the prosecutor may not knowingly use false testimony. This includes "half-truths" and vague statements that could be true in a limited, literal sense but give a false impression to the jury.

The court went on, more remarkably, to impose a duty upon the government to investigate plausible allegations that a government witness’s expected testimony was false:

[I]t is obvious that when the government received the letter from [the defendant’s] attorney, it knew there were problems with [the witness’s] testimony – problems it should have cleared up well before [the witness] was allowed to testify . . . .

[W]hen the government learns that part of its case may be inaccurate, it must investigate. It cannot simply ignore evidence that its witness is lying. Here, the government abdicated its responsibility by failing to investigate . . . .(Citations omitted.)

The case is significant not so much for its statement that the government must not knowingly present false or misleading testimony, a rather obvious principle, but on its imposing on the government a duty to investigate a specific allegation that its cooperating witness had testified falsely or was about to testify falsely. Prosecutors, in white-collar and other cases, often wholly and uncritically accept the stories told by cooperating witnesses, particularly the first to "turn," regardless of the witness’s blemished background and huge personal motivation, and stubbornly cling to the belief the witness is telling the truth despite indications to the contrary. Too often consequently, prosecutors turn a deaf ear to substantial allegations brought to them by defense lawyers that their witnesses are lying. And perhaps too often defense lawyers, fearing that the prosecutors will not seriously investigate matters that will undermine their cases but rather will make efforts to minimize their significance, choose not to bring such information to the prosecutors’ attention.

This case suggests that a prosecutor who makes no effort to investigate a plausible allegation that a major government witness will give false testimony may imperil a conviction if it is later revealed that the witness lied, ordinarily not by itself grounds for reversal. At the same time it may indicate that a defense lawyer who chooses not to approach the prosecutor with evidence of a prosecution witness’s expected perjury and instead uses such evidence unsuccessfully at trial may weaken or undermine a post-trial motion based on that false testimony.

(Goldman)(hat tip Evan Jenness)