Where it is shown that Government's case included false testimony and prosecution knew or should have known of falsehood, new trial must be held if there is any reasonable likelihood that false testimony would have affected judgement of jury. Fed. Rules Crim. Proc. rule 33. 18 U.S.C.A.
More than 30 years ago the Supreme Ct. held that the Fourteenth Amendment cannot tolerate a state conviction obtained through the knowing use of false and perjured testimony or evidence. Mooney v. Holohan, 294 U. S. 103, 55 S. Ct. 340, 79L.ed.791. There has been no deviation from that established principal. Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.1217, Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214. There can be no retreat from that principal here.
Napue v. Illinois, 360 U.S. 264, 269 (1959); State v. D'Onofrio, 221 Md. 2029 (1959). As stated in Napue, supra; "It is established that a conviction obtained throuh the use of false evidence, known to be such by representatives of he State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears."
See e.g., Schneider v. Estelle, 552 F. 2d 593, 595 (5th Cir. 1977); Smith v. Florida, 410 F.2d. 1349, 1351 (5th Cir. 1969), and cases cited therein. There should be no retreat from that pinciple in this case. There is no infringement which is more serious than the intentional lying under oath of a States witness to wrongly conviction an innocent man thereby causing him to lose his freedom. In Mesarosh v. U.S., 322 U.S. 1(1956), the Supreme Court observed that:
"The dignity of the United States Government will not permit the conviction of any person on tainted testimony."
325 U.S. at 9.
The Supreme Court rejected the argument that perjury reflecting on a witness' credibility should be considered less important than other false statements.
"The principal that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witnss. The jury's estimate fo the truthfulness an drelikability of a given witness may well be determanative of guild or innocence...
It is of no consequence that the falsehood bore upon the witness crediability rather than directly upon the defendant's guilt, a lie is a lie, no matter what the subject..." Napue, 360 U.S. at 269-70, 79 S.Ct. et 1177
U.S. v Antoine, 603 F.2d 566, 570 (5th Cir. 1979); cf. Ohio v. D'Fronzo, 394 N.E. 2d 1027 (Ohio 1978); In the Matter of the West Virginia State Police Crime Laboratory, Serology Div., 190 W.Va., 31 (S.Ct. W.Va. 1993). The jury's knowledge of this information would not only have undermined the crediability of the witness testimony, but also the reliability of it, so as to introduce an element of reasonable doubt. In cases similiar to the defendant's case where the State has perpetrated falsehoods upon he court at trial it has been often held that a new trial s required becasue the false testimony could have effeced the judgment of the jury, U.S. v Agurs, 427 U.S. 97(1976); Giglio v. U.S. 405 U.S., (1972).
Due process of the law is breached when government's procedures pass beyond line of tolerable imperfection and fall into field of fundamental unfairness. Const. Art 1, & 16; U.S.C.A. Const. Amend. 14
In order for a due process claim to lie, false evidence in question must be material. Const. art. 1, & 16, U.S.C.A. Const. Amend. 14.
Materiality of perjured testimony is not germane solely to defense employed at trial, but also as to how defendant may have prepared his case differently had the falsehood been known. Const. art. 1, & 16; U.S.C.A. Amend 14.
In Mesarosh v. U.S. (1956), 352 U.S. 1. 77 S.Ct. 1, 1 L Ed. 2d 1, the court was faced with a situation which is not dissimilar to this one. In that case the Supreme Court observed that:
"The dignity of the United States Government will not permit the conviction of any person on tainted testimony." 352 U.S. at 9, 77 S.Ct. at 5
"The government of a strong and free nation does not need convictions based upon such testimony. It cannot afford to abide with them." 352 U.S. at 14, 77
Conviction obtained through use of false testimony, known to be such by representatives of the State, is a denial of due process, and there is also a denial of due process when the State, though not soliciting false evidence, allows it to go uncorrected when it appears. U.S.C.A Const. Amend. 14
The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the crediability of the witness. U.S.C.A Const. Amend. 14
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