Prosecutor threatening Defendant with perjury for testifying…is that improper?
This 8/29/19 decision People v. Force* is another reminder of how important the Prosecutor’s job is to put on a fair trial. In fact, before getting to any of the facts and legal analysis, the authoring Judge (who is also presiding) opens with the “one absolute requirement” in a criminal trial: “the accused must receive a fair trial.” “It’s not about convictions, it’s not about courtroom mastery, it’s not about prison sentences. And it’s certainly not about won/lost records. It’s about fair trials.”
So, what happened in Force:
There’s different versions of what happened coming from the Defense Counsel and Prosecutor. Boiled down, Defendant was deciding whether to testify about things that years ago Defendant was on record being inconsistent with: he was under oath saying he didn’t commit SVP (sexual violent predator) acts but later admitted the acts as he went through treatment and through a polygraph.
With Defendant about to make statements inconsistent with his past, the Prosecutor apparently either said or inferred Defendant could get charged with perjury if he did testify at this trial.
Again, Prosecution and Defense retell what happened differently, but coming from the People: [w]hat I said is [appellant] could be charged with perjury because he admittedly lied” in his prior testimony. The Court added the italics.
Again, from the Prosecutor: “It would be great if [appellant] testified because then theoretically he could be charged with perjury….but that he was talking about the perjury issue ‘conceptually,’ and ‘[t]here was no personal threat’ to actually charge appellant with perjury.” With this, the Trial Court is on record thinking the Prosecutor was eluding that he wouldn’t charge Defendant with perjury, but that his office may.
There is also an issue about immunity, where Defense Counsel “strongly suggested it would be a good idea for the prosecutor to grant appellant immunity, which would make the entire intimidation issue go away. But no immunity offer was made[.]”
Defendant, “after being informed by defense counsel what the prosecutor told her in regard to the perjury issue — decided not to testify at his trial.”
What is the law here:
Basically, this is improper across the board. Prosecutors “are not allowed to engage in conduct that undermines the willingness of a defense witness to take the stand.” “Such conduct includes making statements to the effect that the witness would be prosecuted for any crime he or she committed in the course of testifying, such as perjury.”
Also, it doesn’t matter if the Prosecutor acted with any kind of intent. That’s not the standard for Prosecutor Error or Misconduct like this. “The test is simply whether he “engaged in activity that was wholly unnecessary to the proper performance of his duties and of such a character as `to transform [a defense witness] from a willing witness to one who would refuse to testify.'”
In the analysis here, the Court also cites the California District Attorneys Association’s ethics manual: “prosecutors ‘must be careful to avoid witness intimidation problems,’ so as not to interfere with the defendant’s right to present a defense.” “Prosecutorial witness intimidation does not require threatening language, and it may occur even when the prosecutor’s motives are impeccable.” “A prosecutor must never tell the attorney for a defense witness that the witness might be prosecuted based upon expected testimony.” The manual also “recommends any discussions regarding that possibility occur on the record in court, or be otherwise documented.”
The Court finds this error to not be harmless (as the People argued) and Defendant gets a new trial out of this.
*Court of Appeals of California, Fourth District, Division Three.