Prosecutors Can Present False Testimony – Its Just Common Sense

The Supreme Court has now decided not to grant review in either of the two prosecutorial accountability cases discussed in my post of Oct. 16,  Woods v. Smith and Stein v. US. Its worth contemplating again for a moment what that means. In Stein the Eleventh Circuit held that defendants must show not only that the prosecution knowingly presented perjury, but also suppressed evidence of the falsity of the witness’s testimony from the defense team. The Solicitor General argued that “there is no violation of due process resulting from prosecutorial non-disclosure of false testimony if defense counsel is aware of it and fails to object.” In short, the U.S. Government has argued that it can effectively shift the burden to the defendant to call out perjured testimony; the prosecution is free to knowingly elicit untrue statements, or at the very least, sit quietly if one of its own witnesses testifies falsely, and there is no ethical issue in that unless the defense objects. Remarkably, this view — a far cry from the the Supreme Court’s former lofty vision that a prosecutor is “not at liberty to strike foul [blows]”  and that prosecutors have a duty to seek justice, not convictions — is described in the Solicitor General’s Stein brief as a  “common-sense proposition.”


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