by Brian Mahany
Very often criminal trials devolve into a “he said, she said” battle of the witnesses. Sometimes witnesses have different perceptions of the same event. On other occasions one of the witnesses is simply lying. Figuring out who is telling the truth is in the hands of a jury. Although neither the defense attorney nor prosecutor can knowingly call a witness that intends to lie, there has not been much protection for defendants faced with hostile witnesses. Until now.
In a major victory for criminal defendants, including those accused of white-collar crime, the 7th Circuit Court of Appeals in Chicago just ruled that in certain circumstances, the prosecutor has a duty to investigate his or her own witnesses (US v Freeman, June 2011).
The case is important because it comes from a federal appeals court. While only binding in Wisconsin, Indiana and Wisconsin, federal appeals decisions are widely cited and are often viewed as persuasive authority in other courts.
In the Freeman case, the appeals court said a criminal defendant was entitled to a new trial when a prosecutor allowed a key witness to testify; a witness the prosecutor knew or should have known might commit perjury and lie. Here the alert defense attorney had written to the prosecutor prior to trial and indicated that he believed the witness had lied during grand jury.
The case is significant because it now imposes an affirmative duty for prosecutors to investigate claims that witnesses may lie. Said the court, “[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…[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 . . .”
This case impacts both prosecutors and defense attorneys. Prosecutors that simply ignore suspicions or claims that a witness is lying may later see a conviction reversed on appeal. Although not discussed by the court, the implication is that defense lawyers must be sure to alert the prosecutor of any suspicions that a witness may lie. Because the court did not impose a duty to investigate every witness, good defense lawyers should put the prosecutor on notice whenever there is a suspicion that a witness may lie.
In many white collar prosecutions, co-conspirators often engage in a ‘race to the courthouse” in order to make a deal with prosecutors. Co-defendants embellishing their story in hopes of a better deal is a frequent problem. Instead of ignoring the problem, prosecutors now should investigate whether their witness is telling the truth. Simply letting a jury decide is no longer the law of the land in the 7th Circuit.
If you are charged with criminal conspiracy, tax evasion, money laundering, wire fraud or other white collar criminal charge, contact us. Our criminal defense lawyers have years of experience defending individuals charged with federal and state fraud and financial crimes. For a no obligation, confidential consultation, contact attorney Brian Mahany at (414) 704-6731 (direct) or by email at
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