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Having your cake and eating it, too

A woman calls 911 and claims that her husband is beating her.  The police come, arrest the husband, and take him away.  The next day the woman tells the police that it didn't really happen, and she doesn't want to press charges.

Not an unusual situation by any stretch; it happens all the time.  In fact, it's becoming increasingly common for police and prosecutors to apply pressure to the woman, and to threaten her with her own set of criminal charges if she should insist on recanting.  That's exactly what happened in State v. Manzell:  after the defendant was indicted for felony domestic violence, the alleged victim recanted.  The prosecutor charged her with falsification, and she pled guilty, and was sentenced to thirty days in jail.

The prosecutor then went ahead with the case against the initial defendant, and got a conviction, using the testimony of the same witness his office had just successfully prosecuted for falsification.

The central argument of the defense on appeal was that the prosecutor had engaged in misconduct by relying on perjured testimony in order to obtain the conviction.  This theory is based largely on the Supreme Court decision in State v. Iacona, which held that

The knowing use of false or perjured testimony constitutes a denial of due process if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. . . Such a claim is in the nature of an allegation of prosecutorial misconduct, and the burden is on the defendant to show that (1) the statement was actually false; (2) the statement was material; and (3) the prosecution knew it was false.

The State countered that the victim had been convicted of falsification, rather than perjury, a distinction that's lost on me.  To their credit, the appellate court didn't put much stock in it, either.  The majority rejected the defense argument, though, noting that the defense strategy had been to use the falsification plea to destroy the victim's credibility; in essence, that the defense efforts in that regard made it unlikely that "the false testimony could have affected the judgment of the jury."

There's some merit to the majority's argument.  Actually, this is a highly unusual case of the use of perjured testimony: unlike Iacona and every other case I've seen on this issue, here the defense was aware of the fact that the prosecution was using false testimony.  And, of course, there's an argument that it wasn't false at all:  we don't know whether the victim was telling the truth when she said the defendant had struck her, or when she pled guilty to a charge that she wasn't telling the truth when she said the defendant had struck her.

Still, to me it just doesn't pass the smell test to prosecute and convict someone of making a false statement, and then turn around and prosecute and convict someone else based on the premise that the statement was in fact true.  This led to a number of absurdities, as the dissenting judge points out:

The prosecution of this matter put Deputy Flowers, the charging law enforcement officer, in a particularly  untenable position. As a prosecution witness in the case against appellant, the deputy testified on direct examination that "[a]ll of our evidence said" that domestic violence had occurred.  However, the deputy later affirmed during cross-examination that he "believe[d] Shela had, in fact, lied and made a false report of domestic violence."

What happened here might be technically legal, but it doesn't make sense, and it doesn't sound right.  And those last two should count more than being technically legal.

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