© viperagp | AdobeStock 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 evidence 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 jury 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 perjury — 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.