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a tremendous amount of power not only to present, but Fighting Governmental also to develop, influence, and alter, the evidentiary pic - ture that ultimately emerges in a criminal case. In partic - Witness Tampering ular, the government and its agents can and do send unmistakably clear messages to witnesses that certain (Or, You Can Have Our Defense accounts will have different effects than others on the Witnesses When You Pry Them future trajectories of those witnesses’ lives. From Our Cold, Dead Hands) A potential alibi witness might be told, for example, that the investigation is still open, the prosecution may ultimately bring charges against additional suspects, and continuing to maintain that the defendant was some - where else sounds like the kind of thing an accomplice layperson, asked how a trial in a serious crimi - would say. Or a professional, on whose advice a white nal case typically unfolds, will likely give a collar defendant claims to have relied, might be remind - quaintly naïve response. The prosecutor, the ed that if such advice was really given, it would implicate Alayperson might respond, puts on witnesses the professional herself in the crime. and other tending to show that the defendant is The result of such commonly used tactics is that the guilty of the charged crime. The defense lawyer cross- ultimate evidentiary mosaic that reaches the can examines the prosecution witnesses to reveal any reasons bear little resemblance to the full picture that a layperson their testimony may be unreliable, and to draw out any might expect. In reality, the evidence that emerges — additional evidence that may favor the defense. When the particularly in a high-stakes case — can on the prosecu - prosecution’s case is over, the defense presents any wit - tion’s side be that which has been shaped by the govern - nesses and evidence that may show that the defendant did ment’s persuasive tactics, and on the defense’s that which not commit the crime (or that the government’s proof has survives whatever pressure government agents bring to weaknesses), and the prosecution gets its shot at under - bear on defense witnesses. It is unfortunate that this hap - mining that evidence. Finally, the jury looks at all of the pens, but many defense lawyers tend to accept this reality evidence submitted by both sides and decides whether and build it into their assumptions, predictions, and guilt has been proven beyond a reasonable doubt. strategies because it is simply the way the system works. People who work within the criminal justice system Or is it? In fact, as to this topic — a criminal defen - know that this is not really the way it works. They know dant’s ability to find and present defense witnesses, free that this picture of a neutral fact-finding process, in of undue governmental interference or pressure — the which both sides get to do their best to marshal their evi - hypothetical layperson’s understanding may not be too dence, is a fiction. The reason is that the government has far from what the law actually requires.

BY KEVIN SALI AND JOHN ROBB

34 WWW.NACDL.ORG THE CHAMPION The Sixth Amendment’s compulso - The standard set forth by courts dard admonition against — that ry process guarantee was designed to considering this issue is clear. The Ninth [the witness] could be prosecuted for ensure that “a defendant should have a Circuit emphasized the standard in perjury in the event [he] lied on the meaningful opportunity, at least on a par reversing a conviction for improper stand — with an unambiguous state - with that of the prosecution , to present a influence applied to a witness: “[I]t is ment of [the questioner’s] belief that case in his favor through witnesses.” 1 The imperative that prosecutors and other [the witness] would be lying ” if he testi - Supreme Court explained: officials maintain a posture of strict fied as anticipated. 10 neutrality when advising witnesses of As to the official’s basis for believ - The right to offer the testimony their duties and rights. Their role as ing that the witness might be lying, the of witnesses, and to compel public servants and as protectors of the fact that a witness’s testimony would their attendance, if necessary, is integrity of the judicial process permits “contradict[] the testimony of the gov - in plain terms the right to nothing less.’” 7 ernment’s own witnesses does not form present a defense, the right to The question of improper influ - a sufficient basis” for a targeted warn - present the defendant’s version ence often arises when some govern - ing. 11 “Rather, unusually strong admoni - of the facts as well as the ment official — for example, a judge, a tions against perjury are typically justi -

prosecution’s to the jury so it prosecutor, or a law enforcement agent fied only where the prosecutor has a F

may decide where the truth lies. — suspects that a witness may not be more substantial basis in the record for I Just as an accused has the right telling the truth, and communicates to believing the witness might lie — for G to confront the prosecution’s the witness that giving untrue testimo - instance, a direct conflict between the H witnesses for the purpose of ny could have consequences. Courts witness’s proposed testimony and her T I 12 challenging their testimony he have drawn a bright line in this con - own prior testimony.” N

has the right to present his own text. The New Mexico Supreme Court’s Of course, even such a “substantial G

witnesses to establish a defense. recent expression of the distinction basis” does not afford carte blanche to This right is a fundamental between lawful and unlawful commu - the government’s agents, who must still G element of due process of law. 2 nications in this area is representative refrain from improper influencing tac - O of a body of law that is consistent tics. 13 Ultimately, if government agents V And as courts have repeatedly rec - across the nation: want to challenge a witness’s account, E ognized, improper governmental pres - they must do so in the legally appropri - R N sure on witnesses undermines this fun - [L]awyers or the agents of lawyers ate way. Because “it is the jury’s function M damental right and violates the U.S. representing any party must — not the prosecutor’s — to determine Constitution. Regardless of what law avoid intimidating prospective the credibility of witnesses,” the govern - E N enforcement officials have learned to witnesses or pressuring them to ment must “be content to subject the T believe they can get away with, and testify in a particular way, testimony of defense witnesses to the A 14 regardless of what defense lawyers have regardless of a lawyer’s personal crucible of the courtroom.” L over time effectively resigned themselves belief about what is true and W to accept, the reality is that a well-estab - what is not. . . . [S]imply advising Courts may consider whether I

lished body of case law prohibits the a witness about the realities of warnings and admonitions T types of influencing tactics often used by the perjury statutes is not were selectively given to N government agents in criminal cases. sanctionable misconduct. certain witnesses. E

However, anything beyond a In light of the neutrality rule, courts S Improper pressuring of simple and neutral advisement, can appropriately consider the consis - S

witnesses violates multiple even when conducted by a tency of the supposed warnings at issue T constitutional provisions. judicial officer, can cross — in particular, whether those warnings A “Few rights are more fundamental permissible boundaries .8 are given to all prospective witnesses, or M than that of an accused to present wit - only some subset whose accounts appear P nesses in his own defense.” 3 This right is Courts consider several factors to deviate from what government offi - E made explicit in the Sixth Amendment’s in assessing the government’s cials expected to hear. 15 R I 16 compulsory process clause, but its roots conduct toward witnesses. For example, in People v. Pena , N are not limited to that clause. “The The question of whether communi - after the defendant had given notice of G Supreme Court has expressly recognized cation with a witness crosses the line an alibi defense and identified three that a party’s right to present his own wit - into unconstitutional influence depends supporting witnesses, the prosecutor nesses in order to establish a defense is a on factors such as “the manner in which sent each such witness a letter simply fundamental element of due process.” 4 the prosecutor or judge [or, as noted quoting, “[i]n the interests of justice,” These constitutional guarantees below, a law enforcement agent] raises the state’s perjury statute. 17 The include the right not only to summon a the issue, the language of the warnings, Michigan Supreme Court reversed the witness to court, but also to ensure that and the prosecutor’s or judge’s [or ensuing conviction, stating unambigu - the witness can testify without undue agent’s] basis in the record for believing ously that “[t]he constitutional right of governmental pressure or influence. “The the witness might lie.” 9 a defendant to call witnesses in his constitutional right of a defendant to call As to the manner and content of the defense mandates that they must be witnesses in his defense mandates that warning, one significant factor is called without intimidation,” and they must be called without intimida - whether the official not only warns in adding that “[a] prosecutor may tion,” 5 and “the [United States] Supreme general against the danger of perjury but impeach a witness in court but he may Court has recognized that the govern - also indicates a belief regarding whether not intimidate him — in or out of ment may not substantially interfere with particular testimony would be perjuri - court.” 18 The fact that all three witnesses the testimony of defense witnesses.” 6 ous. It is improper to “combine[] a stan - in fact testified and two of the three sup -

WWW.NACDL.ORG JUNE 2017 35 ported defendant’s alibi did not affect Some early cases concerning the court that [the witness] would not the finding of a violation — as the court improper influence on witnesses involved be prosecuted,” and the witness had stated, “[t]he manner of testifying is statements by trial judges to witnesses stated that he would indeed testify, often more persuasive than the testimo - who were about to testify. 23 Since then, the albeit “only under subpoena, which was ny itself,” 19 with the obvious implication same analysis has been applied to com - not requested.” 29 The court found these that the warnings administered to the munications from prosecutors and law steps insufficient to cure the initial vio - witnesses could clearly affect the “man - enforcement agents, all of whom are lation, noting: ner” in which they testified. 20 equally considered arms of the govern - ment for purposes of this analysis. 24 There is an obvious and There are additional aspects The question of good faith, or considerable difference between of the legal analysis. whether the government official apply - the free and open testimony Some of the cases finding constitu - ing the pressure genuinely believes the anticipated of a voluntary tional violations have involved witnesses witness was lying, is largely irrelevant. As witness and the perhaps guarded who have been dissuaded from testifying the Third Circuit explained in Morrison , testimony of a reluctant witness at all on the defendant’s behalf. Courts although the “good faith of the [ques - who is willing to appear only at have recognized, however, that govern - tioner] would be relevant if he were the command of the court. mental influence that affects the content charged with [the crime of witness Further, the government’ s action G of a witness’s testimony is, if anything, intimidation],” it is irrelevant “to an here substantially interfered with N

I worse than influence that simply keeps inquiry into whether a defendant was any free and unhampered deter -

R the witness off the stand. The Ninth denied his constitutional right.” 25 mination the witness might have E Circuit recently addressed this topic: Indeed, the danger of unlawful gov - made as to whether to testify and P ernmental overreach is never greater if so as to the content of such tes - M It also seems clear that the sub - than when the officials are convinced of timony. … The government’s A stantial and wrongful interfer - the righteousness of their cause. Justice statement that it would forgo T

ence with a prosecution or Louis Brandeis explained in his most prosecution will not serve to S defense witness that does not famous dissent, since adopted by a wipe out the prejudicial effect of S “drive the witness off the Supreme Court majority: the event. 30 E stand,” but instead leads the N 31

T witness to materially change his Experience should teach us to In United States v. Morrison , the I or her prior trial testimony can, be most on our guard to defense had planned to call a witness

W in certain circumstances, vio - protect liberty when the who would have testified that the late due process. Indeed, such government’s purposes are defendant was not involved in the drug L violations have the potential to beneficent. Men born to that was the subject of the A

T work even greater harm than freedom are naturally alert to charges. The prosecutor communicated

N those that simply result in a repel invasion of their liberty to the witness that she could be charged

E blanket refusal to testify. Where by evil-minded rulers. The herself if she testified as anticipated,

M a witness is coerced into recant - greatest dangers to liberty lurk which the prosecutor clearly believed 32 N ing testimony that was favor - in insidious encroachment by would be “false[].” The witness ended

R able to the defendant, the harm men of zeal, well-meaning but up testifying but invoked her Fifth E to the defense involves not without understanding. 26 Amendment privilege in response to V merely the prevention of several questions asked by the defense. O prospective testimony that Courts regularly find constitutional The trial court had found that this deci - G might have bolstered its case, violations based on improper sion resulted from the prosecutor’s

but the retraction of testimony pressuring of witnesses. remarks, but had declined to find a G that did bolster its case. 21 Courts across the country have constitutional violation, concluding N

I found constitutional violations based on that the prosecutor’s actions “were T To prove a constitutional viola - transgressions of the neutrality rule, done in good faith, did not cause any H tion, a defendant need not establish with remedies for those violations being substantial prejudice to [the defendant]

G that a government agent specifically determined based on their severity and and did not deprive him of any right to I

F and deliberately told a witness to lie, or the extent to which the effects of the vio - which he was entitled,” and noting the to change his account in a particular lations could be purged. witness had in fact testified. 33 way. Rather, courts have recognized In United States v. Thomas ,27 for The Sixth Circuit reversed, finding that any message that can be viewed as example, a prospective defense witness that “[t]he actions of the prosecutor in influencing a witness’s testimony in was approached by a government agent his repeated warnings which culminated some direction can be sufficient. Even who advised him that he could be pros - in a highly intimidating personal inter - the oft-stated emphasis to “tell the ecuted for misprision of a felony if he view were completely unnecessary.” 34 truth” can constitute such pressure, testified in the case. 28 The witness did Noting that it would have been “entirely when the surrounding circumstances not end up testifying for the defendant. proper for the court in its discretion” to make it clear that the speaker has a The Sixth Circuit reversed the advise the witness of her right not to clear sense of what “the truth” is. 22 This ensuing conviction based on the gov - incriminate herself, and that such advice is similar to the rule, discussed above, ernment’s interference with the wit - had in fact been given, the prosecutor’s that a warning against perjury can be ness’s testimony. Notably, it did so further admonitions were “totally unconstitutional when the speaker despite the fact that several curative unnecessary.” 35 The witness “could have indicates a belief as to what testimony steps were taken after the initial inter - made a knowing choice of whether to might be perjurious. ference. The government had “advised testify or not on the basis of the formal

36 WWW.NACDL.ORG THE CHAMPION . . . . [W]e caution prosecutors — and defense counsel as well — to avoid to pressure witnesses into changing their testimony, no matter what subjective good faith may arguably motivate their efforts.41

The remedy for a violation can be dismissal. After unconstitutional witness influence has been established, “[t]here remains the question of whether a fair trial of [the defendant] can [still] be held or whether the harm done by [the gov- ernment’s] actions is irreparable.”42 Intermediate remedies — for example, stipulations regarding what the defense witnesses would have said absent the improper influence — may be insufficient. That approach was used by the trial court in United States v. Hammond,43 in which improper comments by an FBI agent had dis- suaded a defense witness from testify- ing. In reversing the conviction, the Fifth Circuit explained why the stipu- lation would be insufficient:

This important testimony would have been more effective had it not been introduced warning from the court,” and “[t]he The court ultimately held for the by stipulation. Certainly, live pressure brought to bear on her by the defendant on other grounds and did not testimony can have more impact [prosecutor] interfered with the volun- formally reach the issue of whether the than a statement read to the tariness of her choice and infringed prosecutorial conduct would have jury. A stipulation is static and defendant’s constitutional right to have required dismissal. That conduct, how- deprived of vitality. It is a her freely-given testimony.”36 ever, troubled the court to a sufficient synthetic substitute for the Similarly, in State v. Gutierrez,37 the degree that it included a lengthy discus- oracular declarations of a defendant was charged with inappropri- sion leaving little doubt as to its views: witness. The written word with ate sexual conduct toward his 15-year- its depersonalization can be old daughter. The daughter had told the [W]e caution that lawyers or the no equal to verbalization, and grand jury that the defendant had com- agents of lawyers representing any compelling circumstances to mitted such conduct, but before trial party must avoid intimidating the contrary, the defendant recanted this testimony.38 prospective witnesses or pressuring must not be deprived of the She was then interviewed by a them to testify in a particular way, oral word.44 detective, a prosecutor and a victim’s regardless of a lawyer’s personal advocate. During this interview, belief about what is true and what Where the harm cannot be reversed,

FIGHTING accordingGOVERNMENTAL WITNESS to theTAMPERING detective, these offi- is not. The State is correct in its the only appropriate remedy is dis- cials “were trying to get the daughter position that simply advising a missal. In some cases, the destruction of to tell the truth”; he acknowledged witness about the realities of the the opportunity for a legitimate trial has “rais[ing] questions about what might perjury statutes is not sanctionable been explicitly recognized.45 happen to the daughter’s baby but misconduct. However, anything In others, this message is apparent denied that anything they said consti- beyond a simple and neutral from courts’ description of the harms tuted a threat.”39 The New Mexico advisement, even when conducted caused and the futility of corrective Supreme Court, reviewing the record, by a judicial officer, can cross measures attempted by the initial trial found evidence of both “friendly permissible boundaries. We have courts. In Thomas, for example, the admonitions to tell the truth” and found no precedent in this state or illegality had consisted of a government “warnings that the daughter could be elsewhere that condones going agent communicating to a defense wit- prosecuted for perjury and that her beyond merely advising a witness ness that he could be prosecuted if he two-year-old son could be taken from of direct perjury consequences to testified. After this communication had her if she did not appear at trial and raise the specter of collateral been revealed, the prosecutor at the ini- testify consistently with her previous consequences, such as losing tial trial attempted to undo the harm by grand jury testimony.”40 custody of one’s own child. giving assurances that the witness

38 WWW.NACDL.ORG THE CHAMPION would not be prosecuted if he testified, ernmental misconduct not logically relat - tion of justice. … The effect of after which the witness stated that he ed to the question of guilt or innocence. coercion of a witness is to would testify for the defense if subpoe - For example, there has always been a vig - deprive the trier of fact of high - naed. 46 The trial court found this suffi - orous debate over whether, when a defen - ly probative evidence and con - cient, but the appellate court disagreed, dant seeks suppression of clearly incrimi - sequently to disrupt the truth holding that the government’s assur - nating evidence based on an unlawful finding process. 53 ance “[would] not serve to wipe out the search, “[t]he criminal [should] go free prejudicial effect of the event” and because the constable has blundered.” 52 If dismissal is determined to be expressing serious doubt that any cor - But the situation is entirely different unwarranted, any intermediate remedy rective steps could do so. 47 when the illegal conduct directly affects must correspond in nature and extent to Similarly, in United States v. the integrity of the fact-finding process the type of violation and the harm caused. Heller ,48 the Eleventh Circuit reversed a by actually altering the evidence that will For example, where a stipulation is consid - conviction because the defendant “ha[d] be presented in the case. One court ered, the stipulation may need to extend to been deprived of an important defense described the difference as follows: the actual facts to which the witness would witness by substantial interference on have testified, and not merely to the testi - the part of the government.” 49 The court [There are] concerns peculiar to mony the witness would have given. 54 noted that “[t]he conditions under the court-created exclusionary G which [the defendant] may be retried, rule[, including] the exclusion Conclusion N

I i.e., the steps necessary to alleviate the of highly probative evidence The government has a tremendous

R effects of the government’s misconduct, with resulting “disruption” of amount of power in the criminal justice E [was] a difficult problem which [would] the truth-finding process. system, and government officials who are P have to be addressed on remand.” 50 In By contrast, coerced wit - given power tend to use it. This power, M fact, this problem turned out to be insur - ness testimony raises serious however, is not unlimited. A criminal A mountable, and the case was ultimately questions about the integrity of defendant who chooses to defend himself T 51 dismissed by the government. the fact-finding process, and through the testimony of favorable wit - S Dismissal is uniquely appropriate in implicates values basic to civi - nesses has a constitutionally guaranteed S this context because the type of violation lized notions of fairness and right to do so free of excessive govern - E at issue directly affects the integrity and due process. Unlike violation of mental interference. If the government N

T reliability of any contemplated trial. In the judicially created exclusion - does not like what these witnesses have to I many cases involving constitutional vio - ary rule, this violation … raises say, it can challenge their testimony

W lations, there is reluctance to reward a basic questions about judicial through the traditional means of cross- defendant with a windfall based on gov - integrity and the administra - examination and the presentation of con - L trary evidence. But it cannot do so A

T through threats, pressure, or intimida -

N Are you short on CLE credits? tion. When it does, defense attorneys E must be vigilant to highlight such M Let NACDL On-Demand and pursue appropriate remedies. N

R Notes E calm your fears. 1. United States v. Morrison , 535 F.2d V 223, 226 (3d Cir. 1976) (emphasis added; O footnote omitted) (quoting Western, The

G Compulsory Process Clause , 73 MICH . L. R EV .

71 (1974)). G 2. Washington v. Texas , 388 U.S. 14, 19 N

I (1967) (emphasis added).

T 3. Chambers v. Mississippi , 410 U.S. 284,

H 302 (1973).

G 4. United States v. Foster , 128 F.3d 949, I

F 953 (6th Cir. 1997) (citing Washington , 388 U.S. at 19)). 5. State v. Ammons , 305 N.W.2d. 808, 811 (Neb. 1981). 6. United States v. Juan , 704 F.3d 1137, 1141 (9th Cir. 2013)); see also, e.g. , United States v. Blackwell , 694 F.2d 1325, 1334 (D.C. Cir. 1982) (“The constitutional right of a Don’t h it the panic criminal defendant to call witnesses in his defense mandates that they be free to tes - tify without fear of governmental retalia - but ton just y et. tion.”); United States v. Dupre , 117 F.3d 810, 823 (5th Cir. 1997) (“Under the Sixth CLE when it’s convenient for you: Amendment, a criminal defendant has the right to present witnesses to establish his www.nacdl.org/ondemand defense without fear of retaliation against

40 WWW.NACDL.ORG THE CHAMPION the witness by the government.”). ® 7. United States v. Vavages , 151 F.3d NACDL STAFF DIRECTORY 1185, 1193 (9th Cir. 1998) (emphasis added) MEMBERSHIP HOTLINE 202-872-4001 (quoting United States v. Rich , 580 F.2d 929 (9th Cir. 1978)). senior Resource Counsel Vanessa antoun 202-465-7663 [email protected] 8. State v. Gutierrez , 333 P.3d 247, 255-56 (N.M. 2014) (emphasis added; citations omitted). education Manager akvile athanason 202-465-7630 [email protected] 9. Vavages , 151 F.3d at 1189-90. sales & Marketing Director James Bergmann 202-465-7629 [email protected] 10. Id. at 1185. 11. Id. at 1190. administrative assistant tatum a. Brooks 202-465-7657 [email protected] 12. Id . education assistant shuli Carroll 202-465-7643 [email protected] 13. See, e.g. , Gutierrez , 333 P.3d at 248-51, Deputy executive Director tom Chambers 202-465-7625 [email protected] 255-56 (criticizing officials’ conduct in pres - suring witness even though that witness’s editor, the Champion® Quintin Chatman 202-465-7633 [email protected] account differed starkly from her prior grand Membership Director Michael Connor 202-465-7654 [email protected]

jury testimony); Berg v. Morris , 483 F. Supp. 179 F Director of Public affairs Ivan Dominguez 202-465-7662 [email protected] (E.D. Cal. 1980) (finding due process violation I based on improper influence even though & Communications G witness was testifying directly contrary to Public affairs ezra Dunkle-Polier 202-465-7656 edunkle-polier @nacdl.org H prior in-court testimony). & Communications assistant T I 14. State v. Wiegers , 373 N.W.2d 1, 11 senior advisor for special Projects angelyn C. frazer-giles 202-465-7642 [email protected] N

(S.D. 1985). G Public affairs alexandra funk 202-465-7647 afunk @nacdl.org 15. See, e.g. , Webb v. Texas , 409 U.S. 95, 98 (1972) (finding violation based on “the & Communications assistant G judge’s threatening remarks,” which had Director of Public Defense Bonnie hoffman 202-465-7628 bhoffman @nacdl.org O been “directed only at the single witness for Reform and training V the defense”); Juan , 704 F.3d at 1141 (“The E

Director of events tamara Kalacevic 202-465-7641 [email protected] R seminal case is [ Webb ], in which the N Supreme Court reversed a defendant’s con - associate executive Director gerald Lippert 202-465-7636 [email protected] M viction after the trial judge gratuitously sin - for Programs, Business

services, and technology E gled out the defense’s sole witness for a N lengthy admonition on the dangers of per - senior Privacy and Jumana Musa 202-465-7658 [email protected] National security Counsel T jury. …”) (internal quotation marks omitted). A

16. 175 N.W.2d 767 (Mich. 1970). associate executive Kyle O’Dowd 202-465-7626 [email protected] L 17. Id. at 767-68. Director for Policy W 18. Id. at 768 (footnote omitted). Director — White Collar shana-tara O’toole 202-465-7627 [email protected] I

19. Id. Crime Policy T

20. See also Thomas , 488 F.2d at 336 N Public Defense training Diane Price 202-465-7631 [email protected] (noting the “obvious and considerable dif - E Manager ference between the free and open testi - S mony anticipated of a voluntary witness grassroots advocacy Monica Reid 202-465-7660 [email protected] S

and the perhaps guarded testimony of a Manager T A reluctant witness who is willing to appear executive Director Norman L. Reimer 202-465-7623 [email protected] only at the command of the court”). M

21. Juan , F.3d at 1142; see also, e.g. , State Member services assistant Nelle sandridge 202-465-7639 [email protected] P v. Huffman , 672 P.2d 1351, 1356 (Or. Ct. App. Production Design assistant Zach schermerhorn 202-465-7635 [email protected] E 1983) (requiring, at least in the absence of R National affairs assistant Lisa ama schrade 202-465-7638 [email protected] I “outrageous” government conduct, that the N

defendant show “some effect on the witness’ senior Membership and Viviana sejas 202-465-7632 [email protected] G [sic ] testimony”); id. at 599 (“It is not necessary Operations associate that the witness refuse absolutely to testify in Information services Doug shaner 202-465-7648 [email protected] order to find that defendant’s rights were Manager denied.”); United States v. Thomas , 488 F.2d Chief financial Officer Richard K. stanley 202-465-7644 [email protected] 334, 336 (6th Cir. 1973) (reversing conviction where the government’s conduct “substan - fourth amendment Center Kian Vesteinsson 202-465-7659 [email protected] tially interfered with any free and unham - education and pered determination the witness might have Research associate made as to whether to testify and if so as to Manager — Multimedia Koichi take 202-465-7661 [email protected] the content of such testimony ”) (emphasis Production & sales added); Berg , 483 F. Supp. 179 (finding viola - graphic Designer Jennifer Waters 202-465-7655 [email protected] 7

tion where witness changed story in 1 0

foundation Manager Daniel Weir 202-465-7640 [email protected] 2

response to statements by trial judge indicat - 9

and executive assistant 2 ing belief that witness was lying); id. at 187 6 0 (finding it “clear” that influence causing a art Director Catherine Zlomek 202-465-7634 [email protected] detrimental change in a witness’s account is

WWW.NACDL.ORG JUNE 2017 41 “more prejudicial to a defendant” than influ - 1188-1193 (reversing conviction where 49. Id. at 154. ence that causes a witness not to testify at all). prosecutor called alibi witness’s counsel, 50. Id. at 154 n.6. 22. See Berg , 483 F. Supp. at 183-84 (find - expressed the belief that the anticipated 51. See Miami Lawyer Freed of Tax Evasion ing violation based on judge’s repeated testimony would be false, and advised that Charges , THE MIAMI NEWS , Apr. 29, 1988, avail - admonitions to witness to tell the “truth,” if the witness testified as anticipated she able at https://news.google.com/newspa - where judge had indicated what he believed could be charged with perjury and her pers?nid=2206&dat=19880429&id=Ff4lAAA to be the “truth”); United States v. Lord , 711 F.2d cooperation agreement in a separate case AIBAJ&sjid=-vMFAAAAIBAJ&pg=3438,9125 887, 891 (9th Cir. 1983) (“The prosecutor indi - could be in jeopardy); State v. Wiegers , 373 277&hl=en. cated that he told [the witness] about the self- N.W.2d 1, 6-11 (S.D. 1985) (finding improper 52. Mapp v. Ohio , 367 U.S. 643, 659 (1961) incrimination privilege and that the govern - pressure where incarcerated witnesses (quoting People v. Defore , 242 N.Y. 13 (1926)). ment would not prosecute [him] if he submit - were summoned for interviews and 53. Berg v. Morris , 483 F. Supp. 179, 184- ted to an interview and testified truthfully. warned against committing perjury after 85 (E.D. Cal. 1980). Without clarification, both of these versions indicating that they would testify on the 54. See, e.g. , United States v. Hammond , could suggest distortion of the judicial fact- defendant’s behalf; remanding for eviden - 598 F.2d 1008, 1014 n.4 (5th Cir. 1979) (in finding process.”). tiary hearing on issues). explaining why the stipulation used by the 23. See, e.g. , Webb v. Texas , 409 U.S. 95 37. 333 P.3d 247 (N.M. 2014). trial court was ineffective, noting that “the (1972). 38. Id. at 248-49. parties only stipulated as to what the witness - G 24. See, e.g. , Vavages , 151 F.3d at 1189 39. Id. at 250. es would have stated had they taken the N

I (“[T]he conduct of prosecutors, like the con - 40. Id. stand,” and “did not stipulate that their testi -

R duct of judges, is unquestionably governed 41. Id. at 255-56 (emphasis added; cita - mony was true”); cf. United States v. Bianchi , E by Webb .”); United States v. Pierce , 62 F.3d 818, tions omitted); see also, e.g. , United States v. 594 F. Supp. 2d 532, 544 (E.D. Pa. 2009) (refer - P 832 n.12 (6th Cir. 1995) (“These [government Smith , 478 F.2d 976 (D.C. Cir. 1973) (revers - ring to the “efforts undertaken by the court to M agents who interviewed the witnesses] are ing conviction for constitutional violation render harmless any prejudice by admitting A considered an arm of the prosecutor, and where prosecutor had suggested to the [allegedly influenced witness’s] declara - T

thus, we look to see if their acts constituted defense witness that if he testified as antic - tion without cross-examination”). n S .”); State v. Young , ipated he could be charged in connection S 523 P.2d 946, 947 n.1 (Wash. Ct. App. 1974) with the underlying offense); State v. E (stating that in the context of improper wit - Ammons , 305 N.W.2d 812 (Neb. 1981) (find - N About the Authors

T ness influence, “no distinction can be made ing violation and reversing conviction I between prosecutorial misconduct and the where prosecutor warned defense witness Kevin Sali represents individuals and busi - ness entities in crim - W misconduct of investigatory officers, as both that he would be prosecuted for the under - act as agents of the state in this context and lying offense if he testified as anticipated; inal, civil, and regu - L due process considerations attach equally to reaching this conclusion even though wit - latory matters. He A

T the conduct of each”). ness had in fact previously admitted his is the author of Sci -

N 25. 535 F.2d at 227; see also id. at 228 guilt to the prosecutor); United States v. entific Evidence: A

E (“However good the trial judge found the Foster , 128 F.3d 949, 952-54 (6th Cir. 1997) Manual for Oregon

M intentions of [the prosecutor], his bizarre (prosecutor had communicated that Defense Attorneys .

N conduct toward a witness for the defense is potential defense witness would be

R not to be condoned.”); Smith , 478 F.2d at charged if he testified; court found this con - E 979 (“Even if the prosecutor’s motives were duct “clearly improper” and would have V impeccable, however, the implication of remanded for a hearing on causation Kevin Sali O what he said was calculated to transform issues, but mooted the issue by reversing Kevin Sali LLC

G [the witness] from a willing witness to one on other grounds). Portland, Oregon

who would refuse to testify, and that in fact 42. Morrison , 535 F.2d at 228. 971-407-3371 G was the result. We therefore conclude that 43. 598 F.2d 1008 (5th Cir. 1979). E- MAIL [email protected] N WEBSITE I the prosecutor’s remarks were prejudi - 44. Id. at 1014 (footnote omitted). www.salilaw.com

T cial.”); Vavages , 151 F.3d at 1188 (describing 45. See, e.g. , State v. Kearney , 523 P.2d 443

H improper conduct as prosecutor’s discour - (Wash. Ct. App. 1974) (prosecution had John Robb is a criminal defense attorney

G agement of “what [he] clearly believed improperly dissuaded defendant’s character with Kevin Sali LLC, I which he joined in F would be false alibi testimony”). witnesses from testifying by (accurately) 26. Olmstead v. United States , 277 U.S. telling them defendant had declined to sub - 2016 after practicing 438, 479 (1928) (Brandeis, J., dissenting); see mit to a polygraph examination; court found for several years as a also, e.g. , Chandler v. Miller , 520 U.S. 322 that this “overly zealous action effectively public defender. (1997) (quoting this language from Justice denied [the] defendant an opportunity to Brandeis’s dissent). present his only defense” and that there was 27. 488 F.2d 334 (6th Cir. 1973). “little likelihood” that the problem could be 28. See id. at 335. cured in a retrial, and therefore ordered that 29. Id. the charges be dismissed). 30. Id. at 336. 46. 488 F.2d at 335. John Robb 31. 535 F.2d 223 (3d Cir. 1976). 47. Id. at 336 (“Nothing short of com - Kevin Sali LLC 32. Id. at 226. plete immunity, if even that , could have Portland, Oregon 33. Id. at 227. relieved [the witness’s] apprehension, and 971-407-3372 34. Id. restored his free and voluntary choice, elim - E- MAIL [email protected] 35. Id. at 228. inating the prejudice.”) (emphasis added). WEBSITE www.salilaw.com 36. Id. ; see also, e.g. , Vavages , 151 F.3d at 48. 830 F2d 150 (11th Cir. 1987).

42 WWW.NACDL.ORG THE CHAMPION