Convictions Based on Lies: Defining Due Process Protection Anne Bowen Poulin1 Abstract The corrupting impact of false testimony on the justice system is profound and corrosive. The Supreme Court has long-since held that the due process clause protects against convictions based on testimony that the prosecutor knew or should have known was false. Despite this precedent, courts have undermined that constitutional protection by imposing demanding requirements of prosecution knowledge, narrowing the definition of false testimony, and holding defendants to an inappropriate standard of materiality. As a result, the law does not provide adequate protection from conviction based on lies. Courts must reinvigorate this area of the law. To provide appropriate protection, the requirements a defendant must meet to receive relief based on the use of false testimony must be clarified in the following ways. First, the prosecution should be deemed to have knowledge of the falsity not only if an individual prosecutor had actual knowledge, but also if the prosecution did not meet its duty to discover that the testimony was false or if the prosecution had knowledge of contrary information possessed by other government actors and therefore imputed to the prosecution. Second, the false testimony need not rise to the level of perjury. Third, the courts should apply the more lenient standard of materiality defined for false testimony cases by asking how the revelation that the witness had testified falsely would have influenced the jury in the initial trial rather than asking what would have occurred had the witness simply given truthful testimony. In addition, the courts should revisit the law that applies when a defendant discovers that the prosecution unknowingly presented false testimony. If the falsity was material, the courts should conclude that the conviction violates due process despite the lack of prosecution 1. Professor of Law, Villanova University School of Law. I am indebted to Kristin Mancuso and Angela Hennesy for their excellent research assistance, to my colleague Professor Louis Sirico for his helpful comments, and to Villanova University School of Law for its generous support. 331 332 PENN STATE LAW REVIEW [Vol. 116:2 knowledge. Even if the courts do not extend due process protection to the unknowing use of false testimony, they should grant the defendant a new trial more readily than with other types of newly discovered evidence. The corrupting impact of false testimony calls for at least this level of protection. Table of Contents I. INTRODUCTION ..................................................................................... 333 II. THE SUPREME COURT PRECEDENT ....................................................... 336 A. Defining the Knowledge Requirement ......................................... 338 B. Clarifying the Falsity Requirement .............................................. 340 C. Adapting the Materiality Requirement ......................................... 342 III. ESTABLISHING A VIOLATION OF DUE PROCESS ..................................... 346 A. The Knowledge Requirement ...................................................... 346 1. Actual Knowledge.................................................................. 350 2. Duty to Discover .................................................................... 354 3. Imputed Knowledge ............................................................... 358 B. Establishing Falsity ...................................................................... 369 1. Defining Falsity ..................................................................... 369 2. Proving Falsity ....................................................................... 375 C. The Materiality Requirement ....................................................... 379 1. Defining Materiality ............................................................... 380 2. Assessing Materiality ............................................................. 382 3. Prosecution Culpability and Materiality ................................ 386 D. Defense Awareness and the Obligation of Due Diligence ........... 388 IV. CONVICTIONS BASED ON FALSE TESTIMONY WITHOUT GOVERNMENT CULPABILITY ................................................................ 391 A. Constitutional Violation? ............................................................. 393 B. Non-Constitutional New Trial Standard ...................................... 397 V. CONCLUSION ........................................................................................ 400 It is the State that tries a man, and it is the State that must insure that the trial is fair.2 Souter was convicted of murder in 1992, based on a death in 1979. The victim had spent the early part of the evening with Souter before being found lying dead on the highway. Souter’s conviction was based on prosecution testimony about the bottle from which Souter had been drinking on the evening of the victim’s death. Prosecution witnesses testifiedfalsely as it turned outthat the bottle had a sharp edge that 2. Moore v. Illinois, 408 U.S. 786, 810 (1972) (Marshall, J., dissenting). 2011] CONVICTIONS BASED ON LIES 333 was capable of inflicting the fatal injury and that there was little blood at the scene, suggesting that the victim had been killed elsewhere and her body then moved onto the highway. The falsity of this testimony first came to light several years after Souter’s conviction. The bottle’s edge was dull and could not have caused the wound, and the back of the victim’s clothing was soaked in blood. Even though the prosecution witnesses had given false testimony, the state courts rejected Souter’s plea for a new trial.3 In 1994, Caramad Conley was convicted of a double-homicide on the testimony of an informant who testified that Conley had confessed to him. In his trial, a homicide investigator stood by while the informant falsely denied receiving benefits for his testimony against Conley. Conley served 18 years before a court concluded that his conviction was based on perjured testimony and ordered him released.4 I. INTRODUCTION The corrupting impact of false testimony on the justice system is profound and corrosive. The law abhors perjury.5 In recent years, the justice system has seen the exonerations of defendants whose convictions resulted from trials that were held to be error-free and whose post- conviction challenges were rejected by the courts.6 Some of these erroneous convictions rest on false testimony.7 3. The hypothetical is based on Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). The likely explanation for the victim's death was that she had been hit by a car. After losing in the Michigan courts, Souter petitioned in federal court. The Sixth Circuit held that his claim should not be barred for failure to comply with the statute of limitations, holding that Souter had made a sufficient showing of actual innocence to toll the statute. 4. Justin Berton, Man Wrongfully Convicted of 2 Murders Freed, SAN FRANCISCO CHRON., Jan. 13, 2011, http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/01/12/ BARQ1H868J.DTL#ixzz1AvoN8BPT. 5. See 18 U.S.C § 1621 (2006). See also Nix v. Whiteside, 475 U.S. 157, 173 (1986) (holding that failure to present false testimony cannot constitute prejudice to support an ineffective assistance claim); Taylor v. Illinois, 484 U.S. 400, 416 (1988) (holding that there is no constitutional right to present false testimony); United States v. LaPage, 231 F.3d 488, 492 (9th Cir. 2000) (commenting that perjury pollutes a trial). The expression of that abhorrence has changed over time. At one time, someone who had been convicted of perjury was incompetent to testify. See 2 FRANCIS WHARTON, A TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES: COMPRISING A GENERAL VIEW OF THE CRIMINAL JURISPRUDENCE OF THE COMMON AND CIVIL LAW, AND A DIGEST OF THE PENAL STATUTES 289 (5th ed. 1861). Now, that conviction may be used to impeach the witness, but will not bar the witness from testifying. 6. Since 1989, 273 inmates have been exonerated through the use of DNA testing. INNOCENCE PROJECT, http://www.innocenceproject.org/know/ (last visited Sept. 10, 2010). 7. Daniel S. Medwed, Up the River without a Procedure: Innocent Prisoners and Newly Discovered Evidence in State Courts, 47 ARIZ. L. REV. 655, 657 (2005) (citing witness perjury among reasons for conviction of innocent defendants). See also 334 PENN STATE LAW REVIEW [Vol. 116:2 But what recourse is available to the criminal defendant who discovers that false testimony was used to obtain her conviction? The Supreme Court has long-since held that the due process clause protects against convictions based on testimony that the prosecutor knew or should have known was false.8 Despite this precedent, the legal standards for reviewing convictions where the prosecution presented false testimony are not applied with clarity and consistency. Courts have narrowed that constitutional protection in three specific ways: imposing demanding requirements of prosecution knowledge; limiting what is regarded as false testimony; and holding defendants to an inappropriate standard of materiality. As a result, the law does not provide adequate protection from conviction based on lies. Due process protection from the use of false testimony developed parallel to and in conjunction with the due process principles, flowing from Brady v. Maryland,9 that require the prosecution to disclose exculpatory evidence to the defense. But protection from false