Federal Circuits Split on New Trial Standard after Recantation
Federal circuit courts remain split on the standard to apply when a defendant moves for a new trial because a prosecution witness has recanted. Some circuits require the defendant to show that, without the recanted testimony, he probably would have been acquitted. Other circuits do not.
Recantation issues often arise in sex offense cases, especially child molestation cases.
In United States v. Willis, 257 F.3d 636, 642-43 (6th Cir. 2001), a drug case, the Sixth Circuit adhered to the Seventh Circuit’s three criteria for granting new trial motions based on recantation:
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(1)
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the court is reasonably well satisfied that the trial testimony given by the material witness is false;
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(2)
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without the false testimony, the jury might have reached a different conclusion; and
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(3)
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the party seeking the new trial was taken by surprise when the false testimony was given, and was unable to meet it or did not know of its falsity until after the trial.
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This standard differs from that employed in other circuits by permitting a new trial when the jury might have acquitted, even if it probably would not have.
Most circuits other than the Sixth and Seventh test motions based on recantation by the criteria they use for other motions based on newly discovered evidence. Some circuits have said they see no reason to treat recantation-based motions any differently. United States v. Williams, 233 F.3d 592, 595 (D.C. Cir. 2000); United States v. Krasny, 607 F.2d 840, 844 (9th Cir. 1979).
Willis, at 644-45, identified a reason to treat them differently. When defendants come forward with entirely new evidence, courts must consider the possibility that they have “sandbagged” the prosecution-- that they have kept some evidence in reserve to justify a new trial should they be convicted. When a prosecution witness recants, there is no such possibility.
There is, though, a possibility that someone has pressured the witness to recant. Willis sees two protections against this: the requirement that the judge find the original testimony false, and the recanting witness’ fear of a perjury prosecution.
It will generally be difficult for a defendant -- even an innocent one -- to satisfy a judge that a child sex abuse complainant’s testimony was false. Often there is little to corroborate or to refute a child complainant’s testimony, and little to corroborate or to refute its recantation. A judge may be left in grave doubt whether the original testimony was false.
And the second protection identified in Willis cannot be expected to deter recantation by young children. They do not risk a perjury prosecution when they say they lied at trial. Even children old enough for juvenile prosecution are not likely to appreciate any jeopardy they face.
Copyright © 2003 David S. Marshall
