Amicus Curiae Brief — Miguel Angel Santana, Petitioner v. Maryland

No. 21-440

IN THE

Supreme Court of the United States

MIGUEL ANGEL SANTANA,

Petitioner,

v.

STATE OF MARYLAND,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

MARYLAND COURT OF SPECIAL APPEALS

BRIEF OF AMICUS CURIAE THE CENTER ON THE

ADMINISTRATION OF CRIMINAL LAW AT NYU

SCHOOL OF LAW IN SUPPORT OF PETITIONER

COURTNEY M. OLIVA

Executive Director

CENTER ON THE

ADMINISTRATION OF

CRIMINAL LAW AT

NYU SCHOOL OF LAW

139 MacDougal Street

New York, NY 10012

(212) 998-6612

GREGORY H. LANTIER

Counsel of Record

MOLLY JENNINGS

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

gregory.lantier@wilmerhale.com

ETHAN A. SACHS

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................... ii

INTEREST OF AMICUS CURIAE .............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................................... 2

ARGUMENT........................................................................ 4

I.

A SPLIT AMONGST THE LOWER COURTS

OVER THE SCOPE OF THE NAPUE DUTY

THREATENS THE FAIRNESS OF CRIMINAL

TRIALS............................................................................ 4

A. Prosecutors Are Uniquely Powerful

Quasi-Judicial Actors ............................................ 4

B. False Testimony Occurs At An

Alarming Rate ....................................................... 7

C. The

Napue

Duty,

Properly

Interpreted, Holds Prosecutors To

Their Heightened Duty Of Candor .................... 9

D. Napue Must Be Applied Consistently

To Protect The Fundamental Fairness

Of Criminal Trials ............................................... 11

II. THE NAPUE DUTY IS DISTINCT FROM THE

BRADY RULE AND MERITS THIS COURT’S

INDEPENDENT CONSIDERATION .............................. 13

CONCLUSION ................................................................. 16

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Batson v. Kentucky, 476 U.S. 79 (1986) ......................... 12

Berger v. United States, 295 U.S. 78 (1935) ..................... 5

Brady v. Maryland, 373 U.S. 83 (1963) .................... 13, 15

Conyers v. State, 790 A.2d 15 (Md. 2002) ....................... 14

Gomez v. Commissioner, 243 A.3d 1163

(Conn. 2020) ....................................................... 4, 10, 14

Hurd v. People, 25 Mich. 405 (1872).................................. 5

Imbler v. Pachtman, 424 U.S. 409 (1976) ........................ 6

In re Winship, 397 U.S. 358 (1970).................................. 11

Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) ................. 6

Long v. Pfister, 874 F.3d 544 (7th Cir. 2017) ................. 10

Northern Mariana Islands v. Bowie, 243 F.3d

1109 (9th Cir. 2001)....................................................... 5

Napue v. Illinois, 360 U.S. 264 (1959) ................... passim

People v. Cahoon, 50 N.W. 384 (Mich. 1891) ............... 5, 6

People v. Fielding, 53 N.E. 497 (N.Y. 1899) .................... 5

People v. Lee Chuck, 20 P. 719 (Cal. 1889) ....................... 5

People v. Savvides, 136 N.E.2d 853 (N.Y. 1956) . 9, 11, 13

State v. Monday, 257 P.3d 551 (Wash. 2011) ................... 6

Turner v. United States, 137 S. Ct. 1885 (2017) ............ 15

United States v. Agurs, 427 U.S. 97 (1976) ................ 5, 14

United States v. Bagley, 473 U.S. 667 (1985)........... 14, 15

iii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. LaPage, 231 F.3d 488 (9th Cir.

2000) ......................................................................... 7, 10

United States v. Mangual-Garcia, 505 F.3d 1

(1st Cir. 2007) .............................................................. 10

United States v. Stinson, 647 F.3d 1196 (9th

Cir. 2011) ........................................................................ 9

United States v. Young, 470 U.S. 1 (1985) ....................... 9

Wearry v. Cain, 577 U.S. 385 (2016) ............................... 15

REGULATIONS

N.Y. Code of Prof’l Responsibility EC 7-13 .................... 6

OTHER AUTHORITIES

ABA Standards for Criminal Justice 3-1.4 (4th

ed. 2017) ......................................................................... 6

Bazelon, Lara A., Hard Lessons: The Role of

Law Schools in Addressing Prosecutorial

Misconduct 16 Berkeley J. Crim. L. 391

(2011) .............................................................................. 7

Bedau, Hugo Adam & Michael L. Radelet,

Miscarriages of Justice in Potentially

Capital Cases, 40 Stan. L. Rev. 21 (1987) ................. 8

Garrett, Brandon L., Convicting the Innocent

Redux, University of Virginia School of

Law, Public Law and Legal Theory

Research Paper Series 2015-39 (July 24,

2018) ............................................................................... 8

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Gershman, Bennett L., The Prosecutor’s Duty

to Truth, 14 Geo. J. Legal Ethics 309 (2001) ............. 6

Goldstein, Irving & Fred Lane, 1 Goldstein

Trial Technique § 10.59 (2d ed. 1969)......................... 7

Green, Bruce A., Zealous Representation

Bound: The Intersection of the Ethical

Codes and the Criminal Law, 69 N.C. L.

Rev. 687 (1991) .............................................................. 7

Gross, Samuel R., Lost Lives: Miscarriages of

Justice in Capital Cases, Law & Contemp.

Probs. 61, no. 4 (1998) .................................................. 8

The Innocence Project, DNA Exonerations in

the United States, https://tinyurl.com/

kzdb5p75 ........................................................................ 8

Jackson, Robert H., The Federal Prosecutor, 24

J. Am. Jud. Soc’y 18 (1940) .......................................... 4

Model Rules of Prof’l Conduct R 3.8 (2020) ..................... 6

Nunn, Kenneth B., The Trial as Text: Allegory,

Myth and Symbol in the Adversarial

Criminal Process, 32 Am. Crim. L. Rev.

743 (1995) ....................................................................... 7

IN THE

Supreme Court of the United States

No. 21-440

MIGUEL ANGEL SANTANA,

Petitioner,

v.

STATE OF MARYLAND,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

MARYLAND COURT OF SPECIAL APPEALS

BRIEF OF AMICUS CURIAE THE CENTER ON THE

ADMINISTRATION OF CRIMINAL LAW AT NYU

SCHOOL OF LAW IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Center on the Administration of Criminal Law

at NYU School of Law (the “Center”) is dedicated to

defining and promoting good government practices in

the criminal justice system through academic research,

litigation, and public policy advocacy.1 The Center regularly participates as amicus curiae in cases raising

substantial legal issues regarding interpretation of the

1

No party or counsel for any party authored any part of this

brief or made a monetary contribution intended to fund the preparation or submission of this brief. The parties have consented to

filing of this brief. The Center is affiliated with New York University, but no part of this brief purports to represent the views of

New York University School of Law or New York University.

2

Constitution, statutes, regulations, or policies. The

Center supports challenges to practices that raise fundamental questions of defendants’ rights or that the

Center believes constitute a misuse of government resources. The Center also defends criminal justice practices where discretionary decisions align with applicable law and standard practices and are consistent with

law-enforcement priorities.

The Center’s appearance as amicus curiae in this

case is prompted by its belief that criminal convictions

should be untainted by false evidence—especially false

evidence sponsored by the prosecutor. In the Center’s

experience, juries are likely both to assume that the

prosecution presents testimony that it believes to be

true and to be skeptical of defendants’ efforts to discredit that testimony. Only the government’s own correction of its witnesses’ false testimony can ensure the

fair administration of criminal justice.

INTRODUCTION AND SUMMARY OF ARGUMENT

This appeal presents an important question of Due

Process on which the lower courts are sharply divided.

All agree that under this Court’s holding in Napue v.

Illinois, 360 U.S. 264, 270 (1959), a prosecutor violates a

criminal defendant’s due process rights under the

Fourteenth Amendment when she or he knowingly elicits false testimony that she or he knows, or should

know, is false and does nothing to identify or correct

the falsehood. But the courts of appeals and state supreme courts disagree on what the obligations of the

prosecutor are after a government witness provides

false testimony. One group of lower courts applies a

rule that a prosecutor can discharge his or her Napue

duty merely by disclosing to defense counsel that the

testimony was false. Another reads Napue to mandate

3

that the prosecutor correct the false testimony his or

herself in front of the jury—which is the right rule.

This Court’s review is needed to resolve that split in

light of the important role the Napue duty plays in our

criminal-justice system. In addition, this Court’s review would provide the clarity necessary to ensure that

criminal defendants are provided an equal opportunity

for a fair trial regardless of where they are tried.

I. Prosecutors play an extremely powerful role in

our legal system as representatives of the sovereign.

As such, prosecutors, unlike private defense counsel,

are ethically bound to prioritize the pursuit of justice

over winning. And, because they bear the state’s imprimatur, prosecutors are inherently trusted by juries

in a way that defense counsel are not. By allowing material false testimony to go uncorrected, prosecutors

not only prevent an individual criminal defendant from

experiencing a fair trial, but also sow doubt that the

criminal-justice system is capable of performing its

truth-finding function. The Napue duty—which explicitly requires a prosecutor to “correct” testimony she or

he knows to be false, 360 U.S. at 270 (quotation omitted)—is thus critical to ensuring that prosecutors treat

a dedication to the truth as paramount, something our

legal system assumes as a basic “concept of ordered liberty.” Id. at 269. In addition, it is crucial that courts

apply Napue’s duty consistently, lest a defendant’s

right to a fair trial turn on where he happens to be

tried.

II. Because the Napue duty bears on testimony

that the prosecutor actually presents to the jury, it is

distinct from the rule established in Brady v. Maryland, and merits independent consideration by this

Court. The Brady rule merely requires a prosecutor to

inform the defense of the existence of material, excul-

4

patory information—it does not obligate the prosecutor

to present that material to the jury. The Napue duty,

in contrast, imposes an affirmative duty on the prosecution to correct material false testimony in front of the

jury. The Napue duty imposes this requirement because it concerns scenarios where prosecutors have introduced to the jury testimony that they knew, or

should have known, was false. Those situations involve

a “more fundamental insult to due process,” Gomez v.

Comm’r, 243 A.3d 1163, 1174 (Conn. 2020). It is thus

imperative that this Court provide clarity on the scope

of a prosecutor’s obligations under Napue.

ARGUMENT

I.

A SPLIT AMONGST THE LOWER COURTS OVER THE

SCOPE OF THE NAPUE DUTY THREATENS THE FAIRNESS OF CRIMINAL TRIALS

A. Prosecutors Are Uniquely Powerful QuasiJudicial Actors

1. The prosecutor is a uniquely powerful actor in

our legal system. As Justice (and then-Attorney General) Robert Jackson proclaimed in 1940, “[t]he prosecutor has more control over life, liberty, and reputation

than any other person in America.” The Federal Prosecutor, 24 J. Am. Jud. Soc’y 18 (1940). This awesome

authority means the prosecutor who acts “at his best”

serves as “one of the most beneficent forces in our society”; the prosecutor who does not, however, serves as

“one of the worst.” Id.

The prosecutor’s power derives from his role as

“representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern

impartially is as compelling as its obligation to govern

5

at all.” Berger v. United States, 295 U.S. 78, 88 (1935).

The prosecutor’s “interest … in a criminal prosecution,”

“therefore,” “is not that [she or he] shall win a case, but

that justice shall be done.” Id.; see also United States

v. Agurs, 427 U.S. 97, 110-111 (1976) (same).

Prosecutorial power is so great, and the obligation

to wield it responsibly so inherent to the role, that U.S.

courts and observers have long analogized between the

prosecutor’s role and that of the judge. Because “[t]he

prosecuting officer represents the public interest, …

[h]is object[ive,] like that of the court, should be simply

justice.” Hurd v. People, 25 Mich. 405, 416 (1872). Accordingly, nineteenth-century courts routinely drew

parallels between prosecutors and judges, referring to

the former as “public officer[s]” who “act[] in a quasijudicial capacity,” People v. Cahoon, 50 N.W. 384, 385

(Mich. 1891), and thus must “be fair and impartial,” because they are “[e]qually … the representative of law

and justice” as “the court.” People v. Lee Chuck, 20 P.

719, 723 (Cal. 1889); see also People v. Fielding, 53 N.E.

497, 498 (N.Y. 1899) (observing that the “public prosecutor, who is a quasi judicial officer, represent[s] the

[P]eople of the state, and [is] presumed to act impartially in the interest only of justice.”).

Modern jurisprudence and commentary reaffirm

these foundational principles. As “representative[s] of

the government,” prosecutors have a “freestanding ethical and constitutional obligation … to protect the integrity of the court and the criminal justice system.”

N. Mariana Islands v. Bowie, 243 F.3d 1109, 1122 (9th

Cir. 2001). Their “role as representative[s] of the government” also provide prosecutors “a unique power to

affect the evaluation of the facts by the fact-finder, who

inevitably views [them] as … special guardian[s] and

thus warranter[s] of the facts— … expert[s] who can be

6

trusted to use the facts responsibly.” Gershman, The

Prosecutor’s Duty to Truth, 14 Geo. J. Legal Ethics 309,

315 (2001). Those “responsibilities” leave prosecutors

“different from lawyers in private practice,” because

their “duty is to seek justice, not merely to convict.”

Jenkins v. Artuz, 294 F.3d 284, 296 n.2 (2d Cir. 2002)

(quoting N.Y. Code of Prof’l Responsibility EC 7-13).

And it is those special responsibilities that cause the

prosecutor, “as the representative of the people,” to act

“in a quasi[]judicial capacity in [the] search for justice.”

State v. Monday, 257 P.3d 551, 555 (Wash. 2011); cf.

Imbler v. Pachtman, 424 U.S. 409, 423 n.20 (1976) (explaining, in the context of common-law prosecutorial

immunity, how prosecutors have long been seen and

treated “as ‘quasi-judicial’ officers.”).

It is not just courts that speak to this responsibility. The Model Rules of Professional Conduct, for instance, devote a section to the “[s]pecial

[r]esponsibilities of a [p]rosecutor,” defined as those “of

a minister of justice and not simply [those] of an advocate.” Model Rules of Prof’l Conduct R 3.8, cmt. 1

(2020). And the American Bar Association’s Standards

for Criminal Justice make clear that the prosecutor,

“[i]n light of [these] public responsibilities … has a

heightened duty of candor to the courts.” ABA Standards for Criminal Justice 3-1.4 (4th ed. 2017).

2. Because the role of a prosecutor is so singular,

“[j]uries very properly regard [them] as unprejudiced,

impartial, and non-partisan.” Cahoon, 50 N.W. at 385.

This favorable impression causes juries to inherently

trust prosecutors and the witnesses they present.

Prosecutors operating in the real world often capitalize on the trust given to them by juries. For instance, prosecutorial training manuals “caution[]” pros-

7

ecutors “not to refer to themselves as ‘the prosecution’

but rather as ‘the state,’ ‘the government,’ or, in the

most extreme version of this practice, ‘the people.’”

Nunn, The Trial as Text: Allegory, Myth and Symbol

in the Adversarial Criminal Process, 32 Am. Crim. L.

Rev. 743, 787 (1995) (quoting Goldstein & Lane, 1 Goldstein Trial Technique § 10.59 (2d ed. 1969)). By use of

these rhetorical devices, prosecutors “position [themselves] and the jury as ‘us’ and the defendant and his

attorney as ‘them.’” Id. at 788.

The trust juries place in prosecutors is only heightened when contrasted with juries’ perceptions of defense

counsel. Defense counsel have an ethical obligation to

treat “the interests of [their individual] client” as “generally paramount to the interest in the administration of

justice.” Green, Zealous Representation Bound: The

Intersection of the Ethical Codes and the Criminal Law,

69 N.C. L. Rev. 687, 687 n.1 (1991). Juries are generally

aware of this “duty of advocacy,” and, as a result, “frequently listen[] to defense counsel with skepticism.”

United States v. LaPage, 231 F.3d 488, 492 (2000); see

also Bazelon, Hard Lessons: The Role of Law Schools in

Addressing Prosecutorial Misconduct, 16 Berkeley J.

Crim. L. 391, 413 (2011) (“most jurors regard” “defense

counsel” “skeptically,” while “the prosecutor is typically

cloaked in a presumption of virtue.”).

B. False Testimony Occurs At An Alarming Rate

The criminal justice system necessarily depends on

witness testimony to further its search for the truth.

But witnesses are human, and all too often find themselves testifying inaccurately (intentionally or otherwise). When that false testimony is material to a conviction, it casts doubt on the “concept of ordered liberty.” Napue v. Illnois, 360 U.S. 264, 269 (1959).

8

Available data make clear that false testimony contributes to wrongful convictions. To date, 375 people in

the United States have been exonerated by DNA testing. See The Innocence Project, DNA Exonerations in

the United States, https://tinyurl.com/kzdb5p75. Approximately 70% of those cases involved incorrect eyewitness identification testimony. See id. In 17% of

them, false testimony had been provided by a government informant. See id. And there is reason to suspect

that “witness perjury is a far more common cause of

error in murders and other capital cases than in lesser

crimes.” Gross, Lost Lives: Miscarriages of Justice in

Capital Cases, Law & Contemp. Probs. 61, no. 4 (1998),

at 139. Indeed, according to a study of 350 cases between 1900 and 1985 where the defendant was wrongfully convicted of a crime punishable by death, 193 (or

roughly 55%) involved either mistaken eyewitness

identification, perjury, or some other form of erroneous

testimony by a government witness. Bedau & Radelet,

Miscarriages of Justice in Potentially Capital Cases,

40 Stan. L. Rev. 21, 56 (1987).

Despite the fact that no reasonable judge or lawmaker would support the introduction of material false

testimony, judicial systems and legislative bodies continue to struggle with solutions to the problem. Indeed,

“[f]ew jurisdictions across the country have adopted

any rules to better safeguard the reliability of informant testimony in response to these wrongful convictions.” Garrett, Convicting the Innocent Redux University of Virginia School of Law, Public Law and Legal Theory Research Paper Series 2015-39 (July 24,

2018), at 12.

9

C. The Napue Duty, Properly Interpreted, Holds

Prosecutors To Their Heightened Duty Of

Candor

Our law recognizes juries’ inherent trust of prosecutors. For instance, prosecutors may not offer their

“personal opinion” of a witness’s credibility because

such opinion “carries with it the imprimatur of the

Government and” thus risks “induc[ing] the jury to

trust the Government’s judgment rather than its own

view.” United States v. Young, 470 U.S. 1, 18-19 (1985).

Put differently, when a prosecutor “vouch[es]” for a

witness, and “provid[es] personal assurances of the

witness’s veracity,” she or he “places the prestige of

the government behind the witness” and improperly

influences the jury. United States v. Stinson, 647 F.3d

1196, 1212 (9th Cir. 2011).

The same concerns animate the Napue duty. In

Napue, this Court held that the prosecution denies a

criminal defendant due process when it “allows” “false

evidence … to go uncorrected” at his trial. 360 U.S. at

269. This “principle,” the Court observed, is “implicit in

any concept of ordered liberty.” Id. Thus, relying on a

New York Court of Appeals decision from three years

prior, the Napue Court declared that a prosecutor who

is aware of a government witness’s false testimony “has

the responsibility and duty to correct [it] and elicit the

truth.” Id. at 270 (quoting People v. Savvides, 136

N.E.2d 853, 854 (N.Y. 1956)) (emphasis added). To do

otherwise—that is, to “allow” the false testimony “to go

uncorrected when it appears,” id. at 269—“prevent[s]

… a trial that could in any real sense be termed fair.”

Id. at 270 (quoting Savvides, 136 N.E.2d at 855).

As the Ninth Circuit has described it, Napue establishes a prosecutor’s “constitutional duty to correct the

10

false impression of the facts” that the jury may have

gathered from a government witness’s testimony.

LaPage, 231 F.3d at 492. Similarly, three judges of the

Seventh Circuit recently explained that Napue “imposes a duty on the prosecution not merely to inform the

defense but to ensure that [] perjury is corrected.”

Long v. Pfister, 874 F.3d 544, 554 (7th Cir. 2017) (en

banc) (Hamilton, J., dissenting). That requirement, the

judges wrote, results directly from the fact that “Napue addresses not what the defense knows but the integrity of the evidence before the jury,” and “the risk

that the jury will use the false evidence to convict.” Id.

Such an understanding of Napue also accords with the

reality that “it is … prosecutor[s],” and not defense

counsel, “who [are] best positioned to repair the damage that is done to the efficient and fair administration

of justice … when a state’s witness provides false testimony.” Gomez, 243 A.3d at 1175-1176 (internal quotation marks and citation omitted).

Other courts, however, like the one below, essentially ignore Napue’s insistence that the prosecutor

correct false testimony, and instead hold that prosecutors satisfy due process merely by informing defense

counsel of the testimony’s falsity. See Gomez, 243 A.3d

at 1174. Those courts proceed from the assumption

that “defendant[s] [who] know[] about … false testimony and fail[] to bring it to the … court’s attention …

d[o] so for strategic reasons.” United States v. Mangual-Garcia, 505 F.3d 1, 10-11 (1st Cir. 2007). But that

rationale ignores the fact that when defense counsel

chooses to alert the jury about false testimony, she is

less likely to be believed than would be the prosecutor

and thus her client—through no fault of her own—

suffers as a result.

11

When the prosecutor knows, or should know, that

testimony that is both false and material has been presented to the jury, due process requires that the prosecutor be the one to correct it.2 Any other rule—where

the prosecutor is permitted to sit silently as defense

counsel tries to expose the false testimony on her

own—puts at risk “our society[’s] … fundamental value

determination … that it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).

D. Napue Must Be Applied Consistently To Protect The Fundamental Fairness Of Criminal

Trials

Defendants tried in jurisdictions that read Napue

as requiring prosecutors to only inform defense counsel

of a testimony’s falsity are placed at a disadvantage to

those tried in courts that understand Napue as mandating the prosecutor to correct false testimony to the jury

him or herself. Because a defendant’s right to a fair

trial should be the same regardless of where he is tried,

this Court should grant the petition to provide clarity

on Napue’s obligations for prosecutors.

As the above establishes, Napue protects the integrity of a criminal trial through a prophylactic rule

based in the understanding that it must be prosecutors

who “correct” testimony that they “know[] to be false.”

Napue, 360 U.S. at 270 (quoting Savvides, 136 N.E.2d

2

The materiality requirement ensures that prosecutors are

not required to correct every conceivable false statement that a

government witness offers as testimony, but rather only statements that are relevant to the jury’s deliberation. For example,

Napue does not oblige the prosecutor to inform the jury that a

witness was mistaken in recalling the type of eggs she ate, or the

color of socks she wore, on the day she is testifying about.

12

at 854). Indeed, due process requires that prosecutors

“elicit,” or draw out, “the truth”; anything else “prevent[s] … trial[s] that could in any real sense be

deemed fair.” Id. The lack of guidance from this Court

causes jurisdictions that require prosecutors only to

disclose, (but not correct) false testimony, to provide

disproportionately unfair trials for defendants.

Even worse yet, the jurisdictions that apply this

lackadaisical version of Napue threaten perceptions of

the entire criminal justice system because the Napue

duty has implications for the legal system extending far

beyond an individual criminal case. By allowing false

testimony to go uncorrected, prosecutors, as representatives of the state, not only prevent an individual

criminal defendant from experiencing a fair trial, but

also sow doubt that the criminal justice system is capable of performing its truth-finding function. In Batson

v. Kentucky, 476 U.S. 79 (1986), for example, this Court

held that the prosecution denies a defendant equal protection when it uses peremptory challenges to exclude

members of his race from the jury. Id. at 86. The

Court there made clear that the harm from such prosecutorial behavior “extends beyond that inflicted on the

defendant and the excluded juror [and] touch[es] the

entire community” by “undermin[ing] public confidence

in the fairness of our system of justice.” Id. at 87 (citation omitted). Although Napue addresses different circumstances, it endorses a similar proposition: that it is

not only the defendant—but the community at large—

that is harmed when the prosecution knowingly allows

false testimony to go uncorrected at a criminal trial.

13

II. THE NAPUE DUTY IS DISTINCT FROM THE BRADY RULE

AND MERITS THIS COURT’S INDEPENDENT CONSIDERATION

Four years after Napue, this Court decided Brady,

where it held that “the suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the evidence is material either

to guilt or to punishment.” Brady v. Maryland, 373

U.S. 83, 87 (1963).

Although the Brady rule is similarly intended to

ensure that prosecutors prioritize truth-finding over

conviction, it arose in a separate context from Napue.

Its rule, accordingly, is distinct. Brady concerns instances where the “accused” has “demand[ed] evidence” from the prosecutor that “would tend to exculpate him or reduce the penalty” he might face. Id. at

87-88. In those situations, Brady makes clear, a prosecutor may not “withhold[]” such evidence from the defendant. Id. But Brady has no further application once

the prosecutor has disclosed the exculpatory evidence

to the defendant.

Napue, by contrast, involves the question of what a

prosecutor must do when false testimony has in fact

been presented to the jury by a government witness.

Napue v. Illinois, 360 U.S. 269, 270 (1959). Because

such evidence “taint[s]” the jury’s evaluation of the

case, Napue requires the prosecutor to “correct” the

misleading testimony and “elicit”—or bring forth—“the

truth” for the jury. Id. at 269-70 (quoting Savvides, 136

N.E.2d at 854).

The two cases thus impose distinct duties upon

prosecutors: Napue requires a prosecutor to correct

false testimony in situ, while Brady ensures only that

14

she or he will provide the defense with all evidence that

is potentially exculpatory.

This distinction is well-recognized. The Connecticut Supreme Court, for example, has said that the

Court “in Napue … was principally concerned not with

the harms that flow from the suppression of exculpatory evidence but, rather, with the more fundamental insult to due process when the state knowingly attempts

to secure the conviction of a criminal defendant on the

basis of falsehoods and fabrications.”

Gomez v.

Comm’r, 243 A.3d 1163, 1174 (Conn. 2020).

This difference explains why courts apply different

tests for Napue and Brady claims: under Napue, courts

ask whether a prosecutor knew, or should have known,

that the testimony was false, see United States v.

Agurs, 427 U.S. 97, 103-104 (1976); while Brady claims

do not consider the prosecutor’s knowledge. The tests

also result in different standards of appellate review,

with Napue requiring reversal unless the government

shows the evidence was “harmless beyond a reasonable

doubt,” United States v. Bagley, 473 U.S. 667, 680

(1985), and Brady requiring affirmance unless the defendant shows a “reasonable probability that” “the result of the proceeding would have been different” had

the evidence been disclosed. Id. at 682 (quotation

marks and citation omitted). In short, Napue is a much

“more defendant-friendly” standard than Brady. Conyers v. State, 790 A.2d 15, 38 (Md. 2002).

It is crucial that courts appreciate the distinction

between Napue and Brady. At its root, Napue involves a “more fundamental insult to due process,”

Gomez, 243 A.3d at 1174, as it addresses instances

where the prosecutor has allowed testimony that she or

he knows, or should know, is false to go uncorrected at

15

trial. Brady, by contrast, although serious in its own

right, can involve a good-faith prosecutor who inadvertently fails to turn over exculpatory information.

See Brady, 373 U.S. at 87 (clarifying that whether the

prosecutor acted in “good faith or bad faith” is irrelevant to the constitutional analysis). To treat Napue

and Brady violations the same thus ignores the particular danger at hand—both to the individual defendant

and our legal system more generally—when the prosecution intentionally risks convicting a defendant on the

basis of false testimony. Thus, especially in light of the

fact that Brady is so frequently considered, see, e.g.,

Turner v. United States, 137 S. Ct. 1885 (2017), Wearry

v. Cain, 577 U.S. 385 (2016), while Napue has not been

examined at any length since 1985, see Bagley, 473 U.S.

at 679 n.8, the time is ripe for this Court to clarify the

distinction between the two cases and the requirements

necessary for a prosecutor to comply with Napue.

16

CONCLUSION

For the foregoing reasons, the petition should be

granted.

Respectfully submitted.

COURTNEY M. OLIVA

Executive Director

CENTER ON THE

ADMINISTRATION OF

CRIMINAL LAW AT

NYU SCHOOL OF LAW

139 MacDougal Street

New York, NY 10012

(212) 998-6612

GREGORY H. LANTIER

Counsel of Record

MOLLY JENNINGS

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

gregory.lantier@wilmerhale.com

ETHAN A. SACHS

WILMER CUTLER PICKERING

HALE AND DORR LLP

60 State Street

Boston, MA 02109

OCTOBER 2021