rejecting proposition that "the prosecutor must play the role of defense counsel, and ferret out ambiguities in his witness' responses on cross-examination"
How later courts described this case
- rejecting proposition that "the prosecutor must play the role of defense counsel, and ferret out ambiguities in his witness' responses on cross-examination"
- prosecutor admitted that he had promised the cooperating witness that the Government would do “whatever [it] could” to get her state sentence reduced
- the prosecutor’s obligation to correct arises “where the Government knows that the witness is intentionally committing perjury” or “when it should be obvious to the Government that the witness’ answer ... is untrue”
- "We do not believe ... that the prosecution’s duty to disclose false testimony by one of its witnesses is to be narrowly and technically limited to those situations where the prosecutor knows that the witness is guilty of the crime of perjury.”
Written by the judges who cited it.
The opinion
OPINION SUR PETITION FOR REHEARING
The dissent sur denial of the petition for rehearing would reverse on the ground that the prosecution must inform the fact finder as well as the court and defense counsel of the truth. This requirement appears to have been met in the instant case, however, by the prosecutor’s proffered stipulation during the Government’s case in chief as to the facts he admitted to the court and to counsel. This stipulation could also have been submitted to the jury if defense counsel so desired.
The dissent views the trial judge’s statement that he would deny a defense motion as effectively foreclosing the defendants from any significant means of relief. The trial judge, however, was apparently referring to a motion for mistrial. As we have indicated in our original opinion, he was not precluding the defense from other remedies which were readily available to them.
For an example of measures by defense counsel to reduce prejudice resulting from the prosecution’s belated disclosure of a bargain with a key witness, see United States v. Johnson, 487 F.2d 1318, 1322-1324 (5th Cir. 1974), petition for certiorari filed, 42 U.S.L.W. 3542 (U.S. March 26, 1974) (No. 73-1418).