West Virginia Law Review
[Cite as 100 W. Va. L. Rev. 353 (1997)]
Peter M. Agulnick[FNa1]
I. Introduction
The ultimate goal of all judicial proceedings must be the
pursuit of the truth, for without it there can be no
justice. Perhaps the greatest affront to justice is perjury.
[FN1]
The crime of perjury had its most public hour during the
O.J. Simpson criminal trial when Detective Mark Fuhrman
knowingly lied on the witness stand - as millions watched
from the couches of their homes - in the most highly
televised trial in history. [FN2] Possibly Detective
Fuhrman's notorious lying or, as some cynics lament, a
national decline in morals has led some commentators to
believe perjury is more prevalent than ever today. [FN3] On
the other hand, some commentators note that widespread
perjury has been with us for ages. [FN4]
Even though the existence of perjury can be traced back to
antiquity, [FN5] punishment for the crime has not been
firmly established until fairly recently. [FN6] Courts
attempted to curtail perjury by administering an oath to
witnesses. An oath, it was hoped, would compel a witness to
testify truthfully, lest he face the wrath of a disgruntled
supreme deity upon whom the witness had sworn falsely.
Divine intimidation alone was ineffective, as perjury still
flourished. [FN7] Hoping to decrease the occurrence of
perjury through deterrence, [FN8] criminal penalties for
lying under oath were developed. [FN9] In addition to
punishment, legislatures have developed many other devices,
including varying the statutory definition of perjury.
Jurisdictions differ considerably on which, if any, of these
devices to follow.
Aside from threatening a witness with penal consequences,
there are other approaches to entice truth telling. [FN10]
This Article will discuss exclusively the recantation
doctrine, which is just one of these approaches. Stated
simply, recantation, also known as retraction, is a defense
to perjury when a witness testifies falsely under oath, but
later recants his false testimony and offers truth. By
correcting a deliberate misstatement, a liar will be excused
from a perjury
prosecution. The policy behind the recantation defense is to
encourage truth telling by barring a punishment for a
witness who lied but might wish to purge his conscience by
retracting his false testimony and providing the
truth.
Surely laymen -- and even some jurists -- might consider the
recantation doctrine an uninteresting, obscure area of the
law about which to write. Because of this, it
comes as no surprise that the subject of the recantation
defense has failed to spawn much literature on the subject.
[FN11] Yet, this doctrine is of paramount importance during
the few occasions when it is applicable. [FN12] For
instance, the difference between an innocent man being
convicted or vindicated is sometimes determined depending on
whether a well-formulated recantation defense exists in the
accused's jurisdiction. [FN13] The recantation defense plays
a pivotal role in allowing the court to seek out truth and
render justice.
On the one hand, some argue the recantation doctrine may
actually contradict its purpose by encouraging a witness to
lie. [FN14] They reason, a witness will lie, keeping in mind
that he can retract his testimony later if he wishes, and
avoid the peril of a perjury conviction. Indeed many of the
states feel this way as evidenced by the recantation
defense's minority status in the United States. [FN15] On
the other hand, as this Article will show, a well-formulated
recantation defense increases the likelihood of truth
telling and has no danger of encouraging dishonesty. But a
poorly formulated defense, as some courts and commentators
rightfully fear, will indeed encourage lying. [FN16]
Likewise, a narrowly applied recantation defense, while not
fostering untruthfulness, will lose the possible benefit of
encouraging veracity.
Part II of this Article will discuss the evolution of the
recantation defense in New York, where it was first born in
America, and explain New York's current formulation of the
law. The history of the recantation doctrine in New York is
especially noteworthy because its influence on other courts,
legislatures, and the Model Penal Code has been enormous.
Moreover, the elements of New York's recantation defense
have been the model for all other jurisdictions. Although
other
jurisdictions do not necessarily use each element in their
defenses, those that do
have recantation defenses take all of their elements from
New York.
Part III of this Article will look at the completed-crime
rule, which is the rejection of the recantation defense. In
addition, this part will examine the rationale that compels
these jurisdictions to vehemently reject the recantation
defense and embrace the completed-crime rule, which at
present is the majority standard.
Part IV examines the elements of New York's recantation
defense. Of those elements, this Article discusses which
ones various courts and legislatures throughout the country
have embraced and which have been rejected. And in doing so,
this Article examines the reasoning behind the decision to
choose some elements over others.
Part V of this Article begins by denouncing the
competed-crime rule's inflexibility, which hinders the
pursuit of truth. Moreover, this part critically examines
the different variations of the recantation defense that
exist throughout the United States. Next, Part V criticizes
courts and commentators who advance certain formulations
that have one of two faults: (1) they are ineffective in
encouraging repentance and truthfulness; or (2) as a result
of a poor formulation, they actually promote perjury.
Finally, keeping in mind the ultimate function of a judicial
proceeding, this Article proposes an ideal formulation of
the recantation defense, which it is urged, more
legislatures and courts should adopt.
---
II. New York's Recantation Statute
The development and history of New York's recantation
defense is an especially important background for
understanding the different variations of the doctrine
nationwide. The defense as we know it today was born in New
York, and all the elements that other states and federal
courts include in their recantation defense are, in part or
whole, adopted from New York.
A. History of New York's Recantation Defense
Before the State of New York codified it in 1965, [FN17]
recantation was a common law defense to perjury whose
origins can be traced back to ancient Anglo-Saxon
jurisprudence. [FN18] The first American case to enunciate
the doctrine was People v. Gillette. [FN19] In Gillette, the
defendant, Walter R. Gillette, was accused of giving
misleading statements to a grand jury concerning the
ownership of a bank account. [FN20] Immediately after making
those statements and before leaving the witness stand, Mr.
Gillette told the entire truth concerning the bank
accounts.[FN21]
1. Testimonial Correction to Show Absence of Willful
Perjury
Judge McLaughlin, writing the opinion of the court, believed
the actions of the defendant in Gillette did not constitute
perjury in the first place. Judge McLaughlin noted that the
prosecution "had failed to prove that (Mr. Gillette)
committed perjury in testifying as he did. When the
defendant's entire testimony is considered, it seems to me
one cannot but be satisfied that (defendant) fully and
frankly testified .. . ." [FN22] In other words, perjury
cannot be ascertained by one's words or sentences viewed in
isolation. A witness's testimony, when considered in its
entirety, must be examined to determine if he "willfully,
knowingly, and corruptly" testified falsely. [FN23] Hence,
if a witness corrects his testimony, this is indicative that
he did not "willingly" commit perjury. [FN24]
This premise expressed in Gillette has acted as a
stepping-stone doctrine that leads us to today's recantation
defense. Although Judge McLaughlin cited no
authority in Gillette for this principle, he was not the
first to conceive of it. In fact, 217 years earlier, Lord
Kenyon, in probably the first English-language case on the
subject, [FN25] wrote of a similar rule:
The whole
of the Defendant's evidence on the former trial should be
proved, for if in one part of his evidence he corrected any
mistake he had made in another part of it, it will not be
perjury. Courts have gone so far as to determine, that where
a mistake has been committed in answer to a bill in
Chancery, if the Defendant set it right in a second answer,
it will save him from the perils of perjury. [FN26]
In addition, other English [FN27]
and American [FN28] courts have subscribed to this school of
thought before Gillette, and at present it is the prevailing
view. [FN29]
2. The Birth of the Recantation Defense
Although convinced that Mr. Gillette's statements were
not perjurious (in light of his entire testimony viewed
altogether), Judge McLaughlin, by way of dictum,
assumed, for argument's sake, that Mr. Gillette
intentionally testified falsely. [FN30] He then
formulated a two-part test to determine if one who first
lies but later recants his willfully false testimony is
barred from perjury prosecution. First, a witness must have
given intentionally false statements while testifying; and,
secondly, "immediately thereafter he fully (and truthfully)
explained" his testimony. [FN31]
The recantation defense, the court reasoned, is necessary to
ensure the most noble objective of judicial proceedings -
rendering justice by eliciting truth. [FN32]
Moreover, the court said:
A judicial investigation or
trial has for its sole object the ascertainment of the
truth, that justice may be done. It holds out every
inducement to a witness to tell the truth by inflicting
severe penalties upon those who do not. This inducement
would be destroyed if a witness could not correct a false
statement except by running the risk of being indicted and
convicted for perjury. [FN33]
Therefore, the court held, if one first lies on the witness
stand -- such as the Gillette defendant -- but later recants
his false statement and offers the truth, he should be
absolved of perjury for public policy reasons. [FN34] Hence,
the recantation defense in America was born.
Forty-nine years after the Gillette decision, New York's
highest court, the court of appeals, had its first occasion
to visit the recantation doctrine in People v. Ezaugi,
[FN35] which has become an important and influential
American decision on the subject. In Ezaugi, a grand jury
was investigating Detective Ezaugi and his partner, both
members of the New York City Police Department's Narcotics
Squad, to ascertain whether they conspired with a drug
informant to sell narcotics. [FN36]
Prior to the grand jury hearing, however, Detective Ezaugi's
informant complained to the public defender's office that
Detective Ezaugi and his partner were demanding profits from
his narcotics sales in return for police protection.
[FN37] The informant was referred to the Office of the
District Attorney's Rackets Division, which outfitted him
with a concealed recording device to use during his next
meeting with Detective Ezaugi and his partner. [FN38] As
expected, Detective
Ezaugi and his partner met with the informant to discuss,
among other things, the payments of money. [FN39] Unknown to
the two detectives at the time, the entire conversation was
being recorded for the district attorney. [FN40]
While testifying to the grand jury, Detective Ezaugi denied
that the conversation with the informant took place and,
furthermore, he gave other deliberately false answers and
even fabricated a conversation. [FN41] After testifying,
Detective Ezaugi had an out-of-court conversation with his
partner that convinced him that the District Attorney knew
all along of the true content of his conversation with the
informant. [FN42] Moreover, he knew that his testimony
before the grand jury failed to deceive. [FN43] After
pondering the implications of what had transpired, Detective
Ezaugi testified at a subsequent hearing. This time, he
admitted he lied the first time on the witness stand.
[FN44]
As a result of the grand jury fiasco, Detective Ezaugi was
now named defendant in a criminal perjury action. Defendant
Ezaugi's attorneys then attempted to invoke the defense of
recantation, as articulated in Gillette. In doing so, they
urged the court of appeals not to adopt United States v.
Norris, [FN45] which recently became binding
authority to all federal courts, and Defendant's counsel
feared it might be persuasive to some state courts such as
New York. [FN46]
In Norris, the United States Supreme Court chose to
subscribe to the complete-crime rule of perjury; [FN47] that
is, where "the telling of a deliberate lie by a witness
completes the crime (of perjury) defined by law." [FN48] In
other words, the court rejected the recantation doctrine for
federal courts.
Ultimately, Ezaugi reaffirmed the recantation doctrine,
despite Norris's unequivocal rejection of it. However, in
doing so, Ezaugi also addressed the reasons that the Supreme
Court believed necessitated recantation's abolition - the
concern that witnesses may deceive courts, and if they are
caught, recant their lies to escape
punishment. [FN49] As the Supreme Court observed in
Norris,
[h]owever useful that rule [recantation] may be as an aid in
arriving at testimonial truth, it does not follow that it
should be made a rule of universal application, for to do so
might just as surely encourage perjury, especially in those
situations where a witness does not recant until he becomes
convinced that his perjury no longer
deceives. [FN50]
Clearly, the Ezaugi defendant recanted his
false testimony only after being convinced that his perjury
was no longer believable. Realizing this, the court of
appeals considered Detective Ezaugi's recantation "not a
demonstration of penitence to purge the torments of a guilty
conscience, but a calculated effort to escape the dire
consequences of admitted false swearing." [FN51]
Taking these concerns into
consideration, the Ezaugi court then limited the
application of the recantation doctrine to the following
circumstances: (1) when a perjurer corrects knowingly
false testimony; (2) if it is done "promptly"; (3) if it
is done "before the body conducting the inquiry"; (4) if
it is done before the inquiry has been deceived or
misled to the detriment of its investigation; (5) and,
finally, if no reasonable likelihood exists that the
perjurer has
learned his untruths have been or will
be discovered. [FN52]
The fourth and fifth elements were
entirely new to New York (the fifth was identical to a concern expressed in
Norris) and caused one dissenting justice to fear
the demise of the defense's utility in
light of the majority's decision. [FN53] All other elements the Ezaugi court listed
were inherited from Gillette.
B. The Current Recantation Law in New York
In 1965, the New York legislature codified the recantation
doctrine based on the
Ezaugi decision in section 210:25 of the New York Penal Law.
[FN54] In doing so,
the legislature made it an affirmative defense and adopted
substantially the
language of the Model Penal Code's retraction statute.
[FN55] Unlike New York's
common law recantation defense, New York Penal Law Section
210.25 called the
defense "retraction," rather than "recantation," and
required that a witness retract
his false statement "in the course of the proceeding in
which it was made," rather
than "promptly," as was held in Ezaugi. [FN56]
The codified retraction defense, which to present has never
been amended,
reads as follows:
In any prosecution for perjury, it is an affirmative defense
that the
defendant retracted his false statement in the course of the
proceeding in which it was made before such false statement
substantially affected the proceeding and before it became
manifest
that its falsity was or would be exposed. [FN57]
1. New York Penal Law Section 215.25 is Unclear
Probably the most ambiguous part of the statute is the term
"in the course of the
proceeding." Does this mean during the course of an entire
criminal trial? That is,
from grand jury to sentencing hearing, or just during the
grand jury hearing? [FN58]
Or in a civil trial, from discovery until all post-trial
appeals have been exhausted?
Unfortunately, New York lawmakers left no legislative
history - and the courts
have generated little precedent - to explain the duration of
the locus poenitentiae,
[FN59] which, in the context of a recantation rule, refers
to the time period in which
one may correct his misstatement in order to be pardoned
from a perjury
prosecution. To complicate matters, the little precedent
that exists is pre-1967
(before the statute was codified and enacted); thus, it
interprets the common law
recantation defense, which uses the word "promptly," from
Ezaugi, rather than "in
the course of the proceeding." Lastly, though the statue has
been in effect and
good law for over thirty years, no court has rendered a
published decision
commenting on the duration of the locus poenitentiae in
reference to the
codification's language.
Needless to say, it is unclear how applicable the pre-1967
recantation case law is
to today's statute. Keeping this in mind, this Article will
now examine the few New
York decisions that define the locus poenitentiae.
Early in the century, one court held the recantation defense
to be viable when one
corrects false testimony "before the submission of the
case." [FN60] Oddly
enough, the same court later barred the recantation defense
for one who recanted a
four-month-old misstatement before the termination of the
proceeding. [FN61] The
most recent case, decided in 1959 (which is the only one to
comment on the
pre-codification Ezaugi standard), said a correction of
testimony over two weeks
after a witness first lied to a grand jury did not
automatically preclude the use of the
recantation defense. [FN62]
From a plain reading of the statute, "in the course of the
same proceeding" - if not
constituting the entire proceeding - is at least a longer
period of time than "done
promptly." The few commentators that discuss this
distinction concur:
In place, however, of the Ezaugi requirement that the
retraction be "done
promptly," S210.25 provides a defense if the retraction is
made "in the course of the
proceeding." If there is a temporal difference between the
making of the false
statement and a retraction thereof by the defendant, S210.25
recognizes that the
purposes of justice are equally well served if the
retraction is something less than
"promptly" made, provided however, that when the false
statement is retracted, it
has not substantially affected the proceeding and has not
been or was not then
likely to be exposed. [FN63]
As mentioned previously, to date no New York court has
discussed this
distinction in the context of New York's retraction statute.
But a few other
jurisdictions have either by statute or case law defined
"procedure" within the
context of their recantation defense. [FN64] Perhaps one of
these cases might be
persuasive to a New York court pondering this
distinction.
Ambiguity still remains, however, and liars deciding whether
to correct a lie have
no clear-cut answer to whether their locus poenitentiae has
expired.
III. The Completed-Crime Rule: The Rejection of the
Recantation Defense
Jurisdictions that reject the recantation defense consider
the act of making willful
and knowingly false statements to be criminally culpable
behavior. "Deliberate
material falsification under oath constitutes the crime of
perjury, and the crime is
complete when a witness's statement has once been made,"
said the Supreme Court
in United States v. Norris. [FN65]
The key element to completing the crime of perjury is
willfulness. Thus, a witness
whose conscience compels him to subsequently correct lies he
has offered while
under oath is still a perjurer who deserves punishment,
according to the
complete-crime rule. In fact, as the Norris court said, a
witness's first willful
misstatement is considered culpable conduct from the instant
it was uttered;
therefore, he cannot escape the penal consequences by
invoking a defense. [FN66]
The Norris Court, an ardent supporter of the completed-crime
rule, expressed its
distaste for the recantation defense:
[The recantation defense] ignores the fact that the oath
administered to the witness calls on him freely to disclose
the truth
in the first instance and not to put the court and the
parties to the
disadvantage, hindrance, and delay of ultimately extracting
the truth
by cross examination, by extraneous investigation(,) or
other
collateral means. [FN67]
Proponents of the completed-crime rule, such as the Norris
Court, feel its deterrent
value most effectively optimizes truthfulness of initial
statements by deterring
fabrication in the first place, [FN68] in addition to
punishing liars for culpable
behavior regardless of their subsequent corrections, if any.
In other words,
retributive theory favors punishment for an offered lie,
regardless of any retraction
made by the liar. [FN69]
The completed-crime rule became known as the federal rule on
recantation, as a
result of the Supreme Court's adoption of it in Norris.
[FN70]Ironically, use of this
term today would be an anachronism since Congress
substantially rejected the
completed-crime rule in the perjury section of its Organized
Crime Control Act in
1970. [FN71] Despite Congress's adoption of the recantation
rule, the majority of
states still adhere to the completed-crime rule. In fact,
one completed-crime
jurisdiction expressly rejects the recantation rule by
statute. [FN72]
IV. A Survey of the Recantation Doctrine Nationwide
All recantation defenses in the United States, whether they
be court made or
statutory, [FN73] derive their basic elements from the
defense as set forth in Ezaugi
and later codified by New York's legislature (which adopted
substantially the
language of the Model Penal Code [FN74]). Although other
jurisdictions' elements
are borrowed from New York, not all recantation defenses are
the same. For
instance, some states use only a portion of New York's
elements, while others use
them all; hence, they follow what has been known as the "New
York rule." [FN75]
Of those elements that are borrowed, some jurisdictions use
differing language.
Such language variations may be only subtle, yet they have
an impact on the
defense's application. But all jurisdictions that subscribe
to the defense are the
same in that all the elements used, in part or whole, come
from New York. In other
words, states have not created new elements that are unique
to their jurisdiction.
There are three basic elements, which include (A) motive or
mens rea, (B) locus
poenitentiae, and (C) effect on party and/or
proceeding.
A. Motive or Mens Rea Element
Motive is the "cause or reason that moves the will and
induces action." [FN76]
The first recantation defense, formulated by People v.
Gillette, [FN77] made no
mention of a motive requirement for the recanter. Other
subsequent decisions,
however, heavily criticize the Gillette court's failure to
mention the motive element;
they insist that without one, the incentive to perjure
oneself would actually
increase. [FN78] Today, most jurisdictions and the Model
Penal Code have
expanded on Gillette and now look to the liar's mens rea to
determine if he deserves
a defense. Keep in mind, however, that motive, in the
context of this Article, does
not refer to the reason the witness originally lied on the
stand. Rather, in the
context of the recantation doctrine, motive refers to the
liar's reasons for recanting
his misstatements. In particular, a court would look to see
if a recanter's motivation
for correcting his lies is to avoid prosecution by
authorities who are aware or will
become aware of the lies. Although this goal is universal to
most recantation-rule
jurisdictions, the language jurisdictions employ to achieve
this goal is sometimes
different. Additionally, some jurisdictions - like the
Gillette opinion - still disregard
motive entirely. [FN79] Below this Article will discuss the
different language
jurisdictions use to determine whether the liar's motive for
recanting entitles one the
shelter of a recantation defense. In addition, the Article
shall look at recantation
statutes that disregard motive altogether and how motive, or
a lack thereof, affects
application of the recantation defense.
1. Objective-View-of-Motive Standard
Most recantation defense language requires a false statement
to be corrected
"before it became manifest that the falsification (of one's
prior statement) was or
would be exposed." [FN80]
This type of language, semantically, does not look
exclusively at a "pure motive" -
that is, the subjective reason the liar recants. The
language aims to preclude the
recantation defense to a witness who fears he will soon be
caught and hopes to
escape punishment by recanting, because the authorities have
discovered or will
discover his untruths.
The term "objective-view-of-motive" standard is more
accurate because a sensible
interpretation of the language "it becomes manifest" does
not require courts to look
only to the liar's mens rea. If the authorities merely have
discovered the lie or will
discover the lie in the future, then the defense is barred.
Admittedly, however, few
courts have discussed this distinction. In fact, some courts
in interpreting "it
becomes manifest" have flatly stated the opposite; that is,
that this language looks
only to the subjective mens rea of the liar. [FN81] Thus,
this language, as
interpreted by these courts, is really a good-faith motive,
which is discussed in the
following section. [FN82]
Despite these interpretations, this Article contends that a
plain reading of the
language instructs courts to look to the outside
circumstances that exist at the time
of a liar's recantation to determine if he had the proper
motivation to recant -
namely, whether authorities have discovered or will discover
the lies before the liar
recants. [FN83] Thus, it is possible for a lying witness who
is convinced of the
secrecy of his misstatements to repent and offer a
retraction and still face a perjury
conviction. For instance, if, unknown to a now-recanting
witness, authorities learn
through other means (or it is manifest that they will
subsequently learn through
other means) that the witness lied when first testifying,
the witness's recantation
defense is divested and he will face a perjury conviction.
In order to fulfill this
element's language, the recantation must have been done
"before it became
manifest that the falsity of one's prior statement was or
would be exposed." [FN84]
This means manifest to the authorities, or, presumably, the
liar, himself, believes it
has become manifest to the authorities. [FN85] Therefore, if
the authorities discover
the lie, it is irrelevant what the recanter believes. In
summary, under the
objective-view-of-motive standard, if either the authorities
discover the lie, or the
liar subjectively believes the authorities have discovered
or will discover the lie
(even if the authorities had not and will not discover the
lie), [FN86] the recantation
defense is unavailable under the
objective-view-of-motive.
2. Good-Faith Motive Standard
Jurisdictions that follow a good-faith standard provide that
"a recantation must
take place before the discovery of the falsification became
known to the witness,
himself." [FN87] Though the policy goal for this type of
language is identical to
that of the objective-view-of-motive language discussed
previously, [FN88]the
outcome of its application is not always the same. With this
purely subjective
language, it is irrelevant whether the authorities ever
learn of the lie. To invoke the
defense, it only matters that the liar himself has no
knowledge that the authorities
have or will have learned of his lie before he retracts it.
Thus, as long as a witness
believes his untruths are secret, he may invoke the defense.
Needless to say, once
the authorities have made public their knowledge of the lies
or commenced a
perjury prosecution against the liar, the discovery of the
lie is known to the liar and
the defense is divested.
This good-faith motive is better understood by contrasting
it with the
objective-view-of-motive standard in a hypothetical: A
witness testifies falsely, but
later decides to clear his conscience by offering the truth
to the court. Unknown to
the witness and before his recantation, the district
attorney obtains documents that
incontrovertibly prove the witness willfully lied while
testifying. Using an
objective-view-of-motive, the witness must be convicted of
perjury because it
became manifest that the falsification was or would be
exposed. For an
objective-view-of-motive standard, the liar's beliefs are
usually irrelevant.
However, with a defense that requires a goodfaith motive,
this element is satisfied
because the witness subjectively believes his false
statements were secret at the
time of recantation. Therefore, under a good-faith motive
requirement, the witness's
retraction excuses his former perjury.
3. Motive Irrelevant
A small number of jurisdictions have no motive requirement
for their recantation
defenses. [FN89] For these jurisdictions, it is important
only that the statement was
retracted - the reason why is purely irrelevant. As long as
a liar recants, he may still
invoke the defense so long as all other requisite elements
of the defense are
satisfied.
Jurisdictions with this type of defense are few in number
and have elicited
criticism from courts and commentators alike; [FN90] even
some among those who
are ardent supporters of the recantation doctrine dislike a
no-motive recantation
defense. [FN91] Clearly, those who subscribe to the
complete- crime rule believe
that disregarding the motive of a recanter perverts justice
by encouraging perjury.
[FN92]
Nonetheless, the motive-irrelevant standard does have its
advocates who reason
as Judge Desmond does below:
[S]ince the recantation rule's purpose is not to reward or
punish the
liar but to get the truth into the record, the perjurer's
motive for
recanting has nothing to do with it at all.
The high public purposes and policy behind the recantation
rule
should constrain us to uphold and implement it, not destroy
it by
limitations [such as a motive]. [FN93]
Even the American Law Institute, which advocates a motive
standard in its Model
Penal Code, [FN94] concedes that there is "some possibility
that the defense may
be unfairly denied if the courts apply too rigidly the
requirement that recantation
precede exposure of the falsehood." [FN95] Nevertheless, the
no-motive standard
is still regarded as unsound and followed by very few
jurisdictions.
B. Locus Poenitentiae or Time Period
Locus poenitentiae, [FN96] Latin for "opportunity to
repent," refers to the time
period in which one may recant false testimony and avoid a
perjury prosecution.
Like all other recantation defense elements, a subtle
difference in language affects
the defense's application significantly. The Ezaugi court
first required a liar to
recant his statement "promptly" before it became manifest
that the falsity was or
would be exposed and before the proceeding was prejudiced.
[FN97] Following the
Model Penal Code's lead, [FN98] New York codified Ezaugi
using the language "in
the course of the proceeding in which it was made," [FN99]
instead of "promptly."
[FN100] The vast majority of jurisdictions use language that
is largely synonymous
to the Model Penal Code. A smaller number of courts use
language that is similar,
but more defined, such as during the "same continuous
trial," [FN101] "before
completion of the testimony at the official proceeding,"
[FN102] and before the case
is "submitted to the ultimate trier of fact." [FN103]
But for the Model Penal Code, and other statutes like it,
what does "proceeding"
mean? As mentioned earlier, for over thirty years that New
York Penal Law section
210.25 has been on the books, New York's judiciary has never
commented on its
recantation defense statute. [FN104] Other jurisdictions
have at least received
interpretations from their judiciaries: "Without question,"
a New Jersey court said,
"the term 'proceeding,' standing alone, is broad enough to
cover each step or all
steps in a criminal action from commencement to final
legislation." [FN105]
Other courts have given the term "proceeding" a narrower
reading than New
Jersey. [FN106] In addition, some state lawmakers have,
themselves, expressly
defined what "proceeding" means by statute. [FN107]
The definition of such words is of paramount importance. For
example, if
"proceeding" is construed narrowly, it could mean before the
testifying witness
leaves the stand. In this instance, one who recants after
leaving the stand may not
have caused harm to the parties or proceeding, and he may
have even retracted
before it became manifest that his falsity has or would be
discovered; yet because
his retraction was after the mandated locus poenitentiae
(which in this instance is
the same "proceeding," interpreted to mean before he leaves
the witness stand), his
recantation defense will fail. By contrast, jurisdictions
that interpret "proceeding"
broadly, might award a recantation under these
circumstances.
Another important distinction is that jurisdictions employ
one of the three
different forms of locus poenitentiae. Some use a fixed or
independent time period
to determine whether a liar deserves a pardon. Others make
the locus poenitentiae
contingent upon the motive and/or prejudice to a party or
proceeding. Lastly, most
jurisdictions use a combination of both of these two.
In the absence of accepted terminology to describe these
variations, this Article
takes the liberty of coining terms for them: (1) "fixed
locus poenitentiae," (2)
"contingent locus poenitentiae," and (3) "hybrid locus
poenitentiae" respectively.
Each variation is discussed in turn.
1. Fixed Locus Poenitentiae
A small number of jurisdictions require a liar to recant
before a finite period of time,
which is defined by the language comprising the defense.
[FN108] Unlike the other
locus poenitentiae variations, this time period is not
contingent upon any other
events. An example of such language can be found in
Colorado's retraction statute:
"No person shall be convicted of perjury in the first degree
if he retracted his false
statement in the course of the same proceeding in which it
was made." [FN109]
Note that the only time-period requirement is that a witness
retract his falsehood
"in the course of the same proceeding in which it was made."
[FN110]
2. Contingent Locus Poenitentiae
After a careful reading of the language of some recantation
statutes, it becomes
apparent that the locus poenitentiae is not always a finite
period of time that is the
same under all circumstances. Instead, most recantation
defenses have variable
time periods that are contingent upon another factor or
factors. [FN111] For
instance, usually one may recant before the parties or
proceeding are prejudiced,
and some defenses require a lie to be retracted before it
becomes manifest that the
falsity of their testimony has or will be known. [FN112]
Additionally, some
jurisdictions require a full recantation before both of
these. The following
recantation statute is an example of a contingent locus
poenitentiae:
S X Recantation - Defense to Perjury
It is a defense to perjury that a witness recant a knowingly
false
statement before it becomes manifest that the falsity has
been or will
be discovered or the lie has substantially prejudiced any
party or the
proceeding. [FN113]
Accordingly, for a recanter to successfully invoke a section
X defense, he must
recant before the lie has been or will be exposed or a party
or the proceeding has
been prejudiced.
Few courts, if any, have discussed the advantages or
disadvantages of one locus
poenitentiae over another. One commentator, however, has
considered the
distinction and, though not using this Article's
terminology, expresses his
fondness for the contingent locus poenitentiae, while
criticizing a fixed time period:
[T]he immediacy with which testimony must be corrected in
order
for the perjury to be excused should be construed to require
measurement not by an inflexible rule which perfunctorily
rejects any
correction made after an arbitrarily determined period of
time.
Instead, immediacy should be determined primarily by the
measure
of inconvenience or prejudice which the witness's false
testimony
has caused. [FN114]
Despite this commentator's endorsement, recantation defenses
that employ a
purely contingent locus poenitentiae element are few, if
any.
3. Hybrid Locus Poenitentiae
A hybrid locus poenitentiae has both a fixed period and a
period that is contingent
upon other events. Of all the jurisdictions that advance the
recantation rule, the
hybrid locus poenitentiae enjoys the most popularity. This
is due, no doubt, to
New York's Ezaugi standard, [FN115] which the American Law
Institute
promulgates in its Model Penal Code:
Retraction. No person shall be convicted of an offense under
this
(perjury) Section if he retracted the falsification in the
course of the
proceeding in which it was made before it became manifest
that the
falsification was or would be exposed and before the
falsification
substantially affected the proceeding. [FN116]
Notice there is both a fixed time period in which one must
recant and a variable
one that depends upon either the falsification being exposed
or a party or the
proceeding being prejudiced. In the majority of recantation
defenses, like the Model
Penal Code above, both of these preconditions are required
before the opportunity
to recant expires.
Thus, one may retract during the fixed period, but if the
other event or events
upon which the locus poenitentiae is contingent occurs, the
opportunity to recant
is divested. This is so even though the fixed time period,
which is "in the course of
the same proceeding" for the Model Penal Code, may not have
passed. Likewise, if
the fixed time period expires, one may not successfully
recant if the events upon
which the contingency depends have not occurred.
C. Effect on Party or Proceeding
The next element is the effect a recanter's original lie has
on the party or
proceeding. Again, with regard to this element, most
jurisdictions follow the Model
Penal Code, which drafted its language based on New York's
Recantation defense.
The Model Penal Code provides that a recantation defense is
viable if, besides
satisfying all other requisite elements, the retraction is
made "before the
falsification substantially affected the proceeding."
[FN117]
Most other jurisdictions that subscribe to the recantation
rule require this element,
[FN118] but some disregard it completely. [FN119] Again,
like the term
"proceeding" discussed earlier, [FN120] it is not entirely
clear what "substantially
affected the proceeding" means. Does this mean a burden
litigants face from having
to hear a witness testify a second time, this time
truthfully? Does this mean
irreversible harm, such as a need for a new trial after a
witness died? Or perhaps it
means something simpler like the
burden of selecting a new jury? To date, there is
little case law to answer these questions. [FN121] Even the
Model Penal Code
leaves no indication of what these words mean in its
comments. [FN122]
This effect-on-party-or-proceeding element, while not being
clearly defined, has
been advocated by commentators, [FN123] but it has also had
its critics. [FN124]
V. A Case for the Adoption and the Reformulation of the
Recantation Defense
All but the most tyrannical of people believe a judicial
proceeding's chief function
is to bring forth truth. Therefore, it is disturbing that
the recantation defense is
unavailable in most jurisdictions throughout the United
States. It is also
unfortunate that of those states that have adopted
recantation defenses, almost all
of them need reformulation. An overhaul of these defenses
would cure one of the
two prevailing problems: first, the defense is inept at
accomplishing its function of
encouraging recantations; or secondly, it needs improvement
to fully maximize its
truth-enticing potential while discouraging lying.
A. More Jurisdictions Should Adopt a Recantation
Defense
Although the recantation doctrine has been slowly gaining
acceptance, the
majority of states still remain completed-crime
jurisdictions. This gives a potentially
repentant witness no way to redeem himself and avoid the
peril of a perjury
conviction and, most important, provides no incentive for
the witness to speak the
truth after he has lied.
Completed-crime advocates advance two schools of thought for
their rejection of
the recantation doctrine. First, they believe that once the
crime is committed, the
"crime is complete" [FN125] - that is, the witness has
engaged in culpable behavior
for which he must be punished - and this punishment is
deserved from the instant
he utters the lie under oath. This proposition pays homage
to retributivism, the
view that society should inflict punishment on a wrongdoer
because of his moral
culpability. [FN126] Secondly, completed-crime advocates
believe a liar's
punishment serves as both specific and general deterrence to
the crime of perjury.
[FN127] Because of this, advocates argue, the
completed-crime rule actually
decreases perjury by deterring witnesses from lying when
first testifying.
Arguably, the first of these contentions, retributivism, has
some merit in that the
act of lying on the witness stand deserves punishment. It is
unnecessary, however,
to engage in the age-old debate on the merits of
retributivism to see the
unsoundness of the completed-crime rule.
If a liar knows the law will punish him for retracting a
previously made lie, he will
surely be hesitant to do so. This is especially true in the
absence of proof that the
authorities have discovered or will discover his lie.
[FN128] Instead, he will most
probably keep his lie a secret. The result of this is
terribly ironic: Completed-crime
advocates will fail to accomplish their retributivist goal
of punishing the perjurer
because the lie will never likely be discovered in the
absence of a recantation
defense.
The second school of thought is that the completed-crime
rule's deterrence value
will decrease the incidence of perjury over the recantation
rule. In order to disprove
this theory, it is necessary to discuss some basic
criminology. Based on empirical
studies, criminologists universally agree that the two
strongest factors in deterring
crime are, first, the severity of the penalty and, secondly,
the crime's risk of
apprehension and conviction. [FN129] The latter of the two
criteria has proven
most effective for deterring crime, but ironically it is the
most difficult to implement.
[FN130] Applying these two factors to the recantation rule,
it is apparent that the
recantation defense does not decrease deterrence, as
completed-crime advocates
claim. This is because a well-formulated recantation defense
[FN131] is available to
liars only when there is little, if any, prospect of
discovering the lie and therefore
almost no chance of obtaining a conviction. As for a
penalty, jurisdictions vary on
punishment, but most are fairly harsh. [FN132] Because, as
most criminologists
believe, the risk of being caught and convicted is the most
important criterion to
indicate whether one will commit a crime, the deterrence
value of the
completed-crime rule remains doubtful at best.
While the arguments for the completed-crime rule are
precarious, the recantation
rule's sound public policy of bringing forth the truth
demands its adoption by all
jurisdictions. Even if, for argument's sake, completed-crime
proponents' goals of
retributivism and deterrence are obtainable in a
completed-crime jurisdiction, public
policy demands that courts take every measure to bring forth
the truth. This is true
even at the expense of letting a liar get away with perjury.
Although such a witness
deserves punishment for his initial lie, this punishment
should not be at the
expense of litigants whose stake in a trial is often great.
[FN133] Bringing out the
truth is even more crucial in a criminal trial where life
and liberty are on the line.
This balancing of public-policy interests is known in
philosophy as utilitarianism.
[FN134] Put simply, utilitarianism means that ends must
justify the means; or, stated
differently, one may do a "wrong" if its ultimate effect is
"good" or best for society.
Applying this to the recantation rule, we except the "wrong"
of letting a witness's
lies go unpunished if his later recantation provides the
better effect of producing
something "good," which is speaking the truth to the
court.
Today, utilitarianism is manifest in much of our
jurisprudence. [FN135] Indeed,
much of the policy and reason behind an array of today's
legislation is strictly
utilitarian. Interestingly, some states have employed
utilitarianism in such a way
that has resulted in a slightly different recantation
defense.
Some states only allow a recantation defense to a witness in
a felony or other
high-level case and not to a low-level trial. [FN136]
Perhaps the reasoning for this is
the belief that excusing the "wrong" of perjury can only
benefit society if a greater
"good" is accomplished; that "good" being a fair trial of a
felony or other high-level
crime based on truth.
Thus, applied to a basic utilitarian balance, these states
presumably reason that it
is more important to punish a liar for perjury than it is to
improve the chances of the
truth coming to light in an insignificant low-level trial,
such as for a speeding
violation. Because perjury is a greater offense than, for
instance, speeding, society
should punish the perjurer without giving him a recantation
defense, which would
ultimately aid the defendant or prosecution in a speeding
violation hearing. This
also includes other low-level trials where crimes or issues
less serious than perjury
are being litigated. Some jurisdictions presumably reason
that this gives the
greatest benefit to society by punishing a greater
crime.
Although the intent of making a distinction between
high-level trials and low-level
ones is noble, the logic is ultimately flawed for the same
reason that the goal of
retributivism is impossible in a completed-crime
jurisdiction. [FN137] Witnesses in
these low-level trials will simply not recant their
testimony when the lie has not
been or will not be discovered. Hence, the goal of punishing
a greater crime at the
expense of a lessor one will not occur, as lying witnesses
will remain unrepentant
for fear of prosecution.
B. The Ideal Recantation Defense
A well-formulated recantation defense increases the
likelihood of veracity and,
contrary to what critics believe, has no risk of encouraging
dishonesty. But a
poorly formulated defense, as some courts and commentators
rightfully fear, will
indeed encourage lying. [FN138] Likewise, a narrowly applied
recantation defense,
while not fostering untruthfulness, will lose the benefits
of encouraging truthful
witnesses.
1. Eliminate Ambiguity in the Language of Most
Defenses
The first step to formulating a model recantation statute is
to eliminate ambiguity.
Like New York's retraction statute, [FN139] discussed
earlier, [FN140] most
recantation defenses on the books today are adulterated with
a lack of specificity in
the language of their terms. As a result, a witness
considering retracting a
previously made lie is bedeviled by the question, "Is a
defense available to me?"
With the recantation defense, as with all criminal statutes,
ambiguity should be
avoided like the plague. Penal consequences are too great to
be left to the
capricious nature of a judge's interpretation of
legislatures' written memorial - the
statute. Therefore, legislatures must expressly define all
terms in their recantation
statutes. In the absence of unequivocal language, a
potentially repentant witness
will be hesitant to recant because he lacks knowledge of his
fate for doing so.
[FN141]
Some judicial-activist proponents might argue that these
ambiguities can be left to
the courts to decipher. Unfortunately, however, because a
witness will hesitate to
admit he lied if he is unclear of the recantation defense's
availability, he will likely
elect not to recant. This disincentive to truth telling has
resulted and will result in a
barrier to case-law development to correct this ambiguity.
Empirical evidence of this
judicial inertia can be seen in New York, where no published
case has commented
on the vague terms of New York's retraction statute in the
thirty years that the
statute has been in existence. Presumably, potential
recanters in New York do not
know whether their recantation was in the same "proceeding"
or whether it harmed
the party or proceeding, both of which are necessary to
invoke the retraction
defense in New York. [FN142] In summary, case law defining
vague recantation
statutes will be extremely slow to develop as potential
recanters will be hesitant to
use the defense and take their chances in the appeals
process. Therefore, it is
imperative that lawmakers overhaul today's recantation
statutes to define all terms
within the language of their respective recantation
defenses. [FN143]
2. Motive or Mens Rea Element is Paramount
The single most important element for an effective
recantation defense is motive.
Disregarding motive, as some recantation defense statutes
do, is terribly foolish as
it will likely encourage perjury. Witnesses will lie freely,
and later if it becomes
manifest that their lie has or will be discovered, recant
their testimony. As a result,
this Article advocates the objective-view-of-motive
standard, [FN144] which
affords a defense to a liar only if the authorities have not
discovered or will not
discover the lie.
In applying this motive standard, there should be no
leniency. This means any
indication that the lie has been or will be discovered,
however slight, should
preclude a defense to the liar. If the motive standard is
viewed strictly, as this
Article suggests, there is no chance that the availability
of a recantation defense
will encourage perjury, as some courts and commentators
fear. However, any lesser
standard of motive very well might encourage perjury.
One may suggest that a recantation defense should employ the
good-faith motive
requirement, which allows a defense to a liar who recants
before he, himself,
believes that the lie has been or will be discovered. The
good-faith exception is an
unwise choice for two reasons. First, it is a difficult task
for any court or jury to
determine one's subjective mind. Secondly, and most
important, the lie is culpable
conduct that deserves punishment. The only reason for
excusing the lie in the first
place is utilitarianism; [FN145] that is, offering the
defense contributes to the
greater public policy of fostering truthfulness in judicial
proceedings. In the
absence of any possible benefit for doing so, the lie should
be punished. For
instance, if the authorities know of the lie, but the liar
himself believes his lie will
remain secret for eternity, the court has discovered the lie
and the truth will come to
light, despite any recantation. Because of this, there is no
benefit for pardoning the
liar from perjury, which is a culpable act. In the absence
of any benefit, the lie must
be punished. As the Supreme Court stated in United States v.
Norris, the lie is
culpable behavior from the instant it is uttered. [FN146]
Thus, the
objective-view-of-motive standard more appropriately obtains
the optimal benefit of
fostering truthfulness while not needlessly excusing
perjurers whose recantations
fail to offer the court the greater benefit of veracity;
after all, such information has
or will become known without a later-repentant liar's
recantation.
Judge Desmond, in his dissenting opinion in Ezaugi, reasoned
that "since the
recantation rule's purpose is not to reward or punish the
liar but to get the truth into
the record, the perjurer's motive for recanting has nothing
to do with it at all."
[FN147] This argument overlooks the law's obligation to
punish perjurers when
there is no benefit for pardoning the crime. Moreover, if
the liar is to be found out,
presumably the truth will come to light anyway. Thus,
contrary to Judge Desmond's
dissent, the "interest of justice" [FN148] will be served
equally if the perjurer is
punished because courts still "get the truth into the
record." [FN149]
Lastly, perhaps in the spirit of utilitarianism, some
suggest that the recantation
defense be available to witnesses who recant - even with an
impure motive - if once
the lie is discovered, additional corrected testimony comes
out that would never
have been discovered and benefits the overall proceeding.
[FN150] Logically, this
is a sound and well-reasoned proposition, but in practice it
may encourage perjury.
3. Eliminate All Other Requirements
As long as the objective-view-of-motive standard requirement
is strictly
construed, as suggested above, [FN151] legislatures should
eliminate all other
elements. It is irrelevant when a liar ultimately recants
his misstatements. Therefore,
to impose an arbitrary locus poenitentiae or time period is
without purpose. If
without a recantation the truth will never come to light,
then it is unimportant how
long the liar waited until he recanted. This is true even if
it is after the conclusion of
the proceeding or trial. [FN152] What is only important is
that but for the liar's
recantation the truth will never have come to light. An
arbitrary, finite locus
poenitentiae neither discourages perjury nor increases
recantations. After the time
period has elapsed, perjurers will keep their lies secret.
This fails to further justice.
Therefore, the only sensible locus poenitentiae is one that
is contingent upon
motive only, which this Article has called a contingent
locus poenitentiae.
The same is true with the effect-on-party-or-proceeding
element. No matter how
irreparably harmed the court or its litigants are, it is
senseless to disallow the
recantation defense. If the effect-on-party-or-proceeding
element is employed in a
recantation defense, witnesses will elect not to recant once
it is apparent that a
party or the proceeding has been harmed. Presumably any
recantation of false
testimony offers some benefit, however slight, to the
parties and proceeding. After
all, if a party or proceeding has been harmed, a recantation
can do nothing but
alleviate some, if not all, of the harm. With the
effect-on-party-or-proceeding
element included in defenses, witnesses will refrain from
recanting once the lie
harms the party or proceeding, and there will be no chance,
however slight, of
reducing that harm caused by speaking the truth. Thus, this
element, along with all
others except for the objective-view- of-motive element,
should be discarded.
Keeping the foregoing in mind, this Article advocates the
following recantation
statute, which embodies all of the suggestions outlined in
this Article:
S Y Recantation. It shall be a defense to perjury if one who
knowingly lies under oath retracts his falsification before
it becomes
manifest that the falsification was or would be exposed to
the
authorities.
Disregarding the effect-on-party-or-proceeding and locus
poenitentiae elements is
perhaps the most controversial proposition of this Article.
The few commentators
who discuss the recantation defense disagree with this
Article's argument for their
elimination. Instead, they argue the contrary - that these
two elements are indeed
necessary. However, closer reading of their writings reveals
their arguments are
conclusory. They fail to explain why these two elements are
in fact necessary.
[FN153]
IV. Conclusion
In order to maximize the truth-gathering function of
judicial proceedings, more
legislatures should adopt properly formulated recantation
defenses. However, in
adopting them, legislatures must use unequivocal language
and formulate them in
with an objective-view-of-motive, which considers the
recanter's motive for
retracting to be paramount in deciding whether to award a
recantation defense, as
this Article suggests. While motive is important, all other
elements presently
employed by most states' defenses should be discarded. Such
a formulation will
yield the following benefits: it will increase recantations
of lies; discourage perjury;
and, ultimately, it will best serve public policy by
pardoning perjurers only when
the greater good results from doing so.
FOOTNOTES:
________________
[FNa1]. B.A. Syracuse University 1994; J.D. Candidate Touro
College, Jacob D.
Fuchsberg Law Center 1998. I wish to thank Professor Thomas
A. Schweitzer of the
Touro Law Center for his encouragement and thoughtful
advice. In addition,
special thanks are due to Stephen Kunken, Esq., of Commack,
New York, whose
research assignment on New York's retraction-defense
statute, N.Y. Penal Law §
210.25 (McKinney 1988), spawned my interest in writing this
Article. Finally, I wish
to thank reference librarians Jill B. Selden, Esq., Dr.
Gerard E. Giannattasio, Esq., and
the rest of the Touro Law library staff for their invaluable
research assistance.
[FN1]. Although the definition of perjury varies slightly
from jurisdiction to
jurisdiction, a general definition can be found in Black's
Law Dictionary, which
defines it as follows:
In criminal law, the willful assertion as to a matter of
fact, opinion,
belief, or knowledge, made by a witness in a judicial
proceeding as
part of his evidence, either upon oath or in any form
allowed by law
to be substituted for an oath, whether such evidence is
given in
open court, or in an affidavit, or otherwise, such assertion
being
material to the issue or point of inquiry and known to such
witness
to be false. A false statement knowingly made in a
proceeding in a
court of competent jurisdiction or concerning a matter
wherein an
affiant is required by law to be sworn as to some matter
material to
the issue or point in question.
Black's Law Dictionary 1139 (6th ed. 1990) (citations
omitted). Interestingly, most
jurisdictions emphasize the belief element; that is, a
testifying witness must believe
his statement, when made, to be false in order to constitute
perjury. Therefore,
some courts will convict a declarant for making a statement
that he believes to be
false, even though he may have in fact spoken the truth. See
Gordon v. State, 147
N.W. 998 (Wis. 1914); 2 Wharton, Wharton's Criminal Law
(11th ed. 1912);
Commonwealth v. Miles, 131 S.W. 385 (Ky. 1910). Thus, in a
prosecution for giving
alcohol to a Native American (which, in the past, was a
crime in Wisconsin),
prosecution for perjury was appropriate where the accused
testified that he had not
given whisky to a Native American, and the recipient of the
whisky was not a
Native American, but she believed the recipient to be a
Native American. Because
at the time the statement was made the witness believed the
whisky recipient was a
Native American, the accused was guilty of perjury. See
Gordon, 147 N.W. at 998.
See generally Rollin M. Perkins & Ronald N. Boyce,
Criminal Law 518-19 (3d ed.
1982); 2 Joel P. Bishop, Bishop on Criminal Law § 1044 c
(John M. Zane & Carl
Zollmann eds., 9th ed. 1923).
[FN2]. See People v. Simpson, No. BA097211 (Cal. Super. Ct.,
L.A. County 1995).
[FN3]. See, e.g., Mark Curriden, The Lies Have It, 81 A.B.A.
J. 68 (May 1995)
("Judges, lawyers and experts on the court system worry that
perjury is being
committed with greater frequency and impunity than ever
before."); Lisa C. Harris,
Note, Perjury Defeats Justice, 42 Wayne L. Rev. 1755, 1777
(1996) (stating that the
offering of false testimony has become commonplace in the
courts).
[FN4]. See, e.g., Anthony Salzman, Recantation of Perjured
Testimony, 67 J. Crim. L.
& Criminology 273 (1976) ("Witnesses have violated their
judicially administered
oaths to tell the whole truth since the beginning of
American jurisprudence . . . .");
Luke Owen Pike, History of the Crime of England 123 (1883)
("(O)ur ancestors
perjured themselves with impunity."). See also Brief for
Appellant at 54, People v.
Ezaugi, 141 N.E.2d 580 (N.Y. 1957) ("The tendency to lie
even under oath is
substantially the same now as it was three centuries
ago.").
[FN5]. The crime of common law perjury has existed since at
least the Seventeenth
Century. See United States v. Norris, 300 U.S. 564, 574
(1937).
[FN6]. See 2 Frederick Pollock & Frederic William
Maitland, The History of the
English Law 242 (2d ed. 1911) ("Very ancient law seems to be
not quite certain
whether it ought to punish perjury at all. Will it not be
interfering with the business
of the gods?"); 3 James F. Stephen, History of the Criminal
Law of England 242
(1883) ("The real singularity is, that for several
centuries, no trace is to be found of
the punishment of witnesses for perjury.").
[FN7]. See Harry Hibschman, "You Do Solemnly Swear!" or That
Perjury Problem,
24 J. Am. Inst. Crim. L. & Criminology 901, 903 (1934)
(arguing that the value of the
oath in preventing witnesses from lying is
negligible).
[FN8]. Id. at 901. However, in our increasingly secular
society, an oath's power of
encouraging truthfulness has diminished. Id. As a result,
one author has noted the
importance of another trial device better able to elicit the
truth: "Cross-examination,
- the rarest, the most useful . . . has always been deemed
the surest test of truth and
a better security than the oath." Francis L. Wellman, The
Art of Cross-Examination
vi (4th ed., rev. and enlarged 1936) (quoting Cox).
[FN9]. But see Harris, supra note 3, at 1777 (arguing that
current perjury statutes are
ineffective and need to be made harsher, in addition to
adding new laws to facilitate
swifter and certain prosecutions for this crime).
[FN10]. See Harris, supra note 3, at 1759-62.
[FN11]. Perhaps the only article dedicated to the
recantation doctrine exclusively is
Salzman, supra note 4.
[FN12]. Admittedly, a witnesses recanting intentionally
false testimony is a rarity,
but it does occur on occasion. During such an exceptional
occasion the recantation
defense plays a pivotal role in ensuring that a court's
justice is based, as much as
possible, on truth rather than lies.
[FN13]. One may argue - though not necessarily prevail -
that due process is
compromised for litigants when testifying witnesses do not
have a well- formulated
recantation defense at their disposal if they lie but later
wish to recant. This is even
more true in a criminal trial where a defendant's life and
liberty are on the line rather
than just money in a civil proceeding. Moreover, the
argument goes, due process
demands that the truth come to light at the expense of
absolving a liar of his crime
of perjury.
Keep in mind, though, in no way does the lying witness have
a constitutional
right to a retraction defense. As this Article later argues,
once a lie is made under
oath, the liar has committed a crime, but public policy
requires that the crime be
excused in order to increase the chance that truthful
testimony will come to light.
See infra notes 145-46 and accompanying text. Therefore, as
United States v.
Denison, 663 F.2d 611 (5th Cir. 1981), explained, no right
to a recantation defense
exists to the witness, himself. See also Annotation,
Recantation As Bar To Perjury
Prosecution Under 18 U.S.C.S. § 1623(d), 65 A.L.R. Fed. 177,
184-86 (1983). But, as
explained above, an argument can be made that not availing a
witness the
recantation defense diminishes due process rights of
litigants in both civil and,
especially, criminal proceedings.
[FN14]. See United States v. Norris, 300 U.S. 564, 574
(1937).
[FN15]. The following are recantation defense statutes that
exist in a minority of
jurisdictions: Ala. Code § 13A-10-107 (1995); Alaska Stat. §
11.56.235 (1996); Ark.
Code Ann. § 5-53-104 (Michie 1997); Colo. Rev. Stat. Ann. §
18-8-508 (West 1986);
Del. Code Ann. tit. 11, § 1231 (1995); Fla. Stat. Ann. §
837.07 (West 1994); Haw.
Rev. Stat. § 710-1064 (1993); Ill. Comp. Stat. Ann. ch. 720,
para. 5/32-2 (c) (West
1993); Iowa Code Ann. § 720.2 (West 1993); Ky. Rev. Stat.
Ann. § 523.090
(Michie/Bobbs- Merrill 1990); Me. Rev. Stat. Ann. tit. 17-A,
§ 451(3) (West 1983);
Mont. Code Ann. § 45-7-201(5) (1997); N.J. Stat. Ann. §
2C:28-1(d) (West 1995);
N.Y. Penal Law § 210.25 (McKinney 1988); N.D. Cent. Code §
12.1-11- 04(3) (1997);
18 Pa. Cons. Stat. Ann. § 4902(d) (1983); R.I. Gen. Laws §
11-33-1(d) (1994); Tex.
Penal Code Ann. § 37.05 (West 1994); Wash. Rev. Code Ann. §
9A.72.060 (West
1988).
The federal government adopted the recantation rule, which
it codified in 18
U.S.C. § 1623(d) (1994). Section 1623(d) affords a
recantation defense to statements
made under oath only before a grand jury or court. On the
other hand, 18 U.S.C. §
1621 (1994), which is applicable more generally to any
statement given under oath,
disallows the retraction defense. The disparity between
these two statutes makes it,
at times, unclear if a liar may invoke a recantation
defense. As such, the federal
retraction defense has drawn criticism from many
commentators. See infra note 141.
[FN16]. See 2 Sara S. Beale & William C. Bryson, Grand
Jury Law and Practice §
11:10 (1986) (noting that "making the recantation defense
too broad can have the
opposite effect of encouraging perjury"); Salzman, supra
note 4, at 279; Recent
Case, Criminal Law - Perjury - Correction of False
Testimony, 76 U. Pa. L. Rev. 751,
752 (1927). See, e.g., United States v. Norris, 300 U.S.
564, 574 (1937).
[FN17]. N.Y. Penal Law § 210.25 (McKinney 1988) (effective
Sept. 1, 1967, codified
1965).
[FN18]. Cf. King v. Jones, 1 Peake 51, 53 (1791) (citing
King v. Carr, 82 Eng. Rep.
1191 (1669)). But see United States v. Norris, 300 U.S. 564
(1937) (citing Edwards v.
M'Leay, 35 Eng. Rep. 316 (1813); Reg. v. Holl, 45 L.T.R. 69
(Q.B.D. 1881)) (arguing
that there is doubt that Carr held or intended to hold that
a witness's retraction of
his false testimony absolves him of perjury in light of
later English case law).
[FN19]. 111 N.Y.S. 133 (N.Y. App. Div. 1908).
[FN20]. See id. at 134. Mr. Gillette was subpoenaed to
testify before a grand jury in
a proceeding entitled "The People of the State of New York
v. John Doe et al." Id.
[FN21]. Id.
[FN22]. Id. at 138.
[FN23]. Id. at 139.
[FN24]. For the general definition of perjury see supra note
1.
[FN25]. King v. Jones, 1 Peake's Reports 51 (1791) (citing
King v. Carr, 82 Eng. Rep.
1191 (1669)). The Carr case, which Jones cited, was written
in law French as was the
practice in England at that time period.
[FN26]. Id. at 53.
[FN27]. See, e.g., Reg. v. Holl, 45 L.T.R. 69, 70 (Q.B.D.
1881) ("(a)n indictment for
perjury could not be sustained on an answer afterwards
corrected or explained.").
[FN28]. See, e.g., Henry v. Hamilton, 7 Blackf. 506, 507
(Ind. 1845) (approving a trial
court's instruction that a witness' corrected statement may
be considered to negate
the willfulness element necessary for a perjury
conviction).
[FN29]. See Model Penal Code § 241.1cmt. 7, 130-31 (1980)
("Under prevailing law . .
. a prompt retraction . . . (can be used) to bolster the
assertion that the original
misstatement was inadvertent or due to a
misunderstanding."); Salzman, supra note
4, at 275 ("(C)ourts generally agree that an offer of
testimonial correction is relevant
to show that the inaccurate testimony was not deliberately
false and that no perjury
was therefore ever committed.").
[FN30]. See People v. Gillette, 111 N.Y.S. 133, 139 (N.Y.
App. Div. 1908).
[FN31]. Id.
[FN32]. See id.
[FN33]. Id.
[FN34]. See id.
[FN35]. 141 N.E.2d 580 (N.Y. 1957).
[FN36]. See id. at 582.
[FN37]. Id.
[FN38]. Id.
[FN39]. Id. at 582 & n.1.
[FN40]. Id. at 582.
[FN41]. Id.
[FN42]. Id.
[FN43]. Id.
[FN44]. Id.
[FN45]. 300 U.S. 564 (1937).
[FN46]. Although a federal decision on perjury recantation
is not binding on state
courts, Detective Ezaugi's attorneys feared the Ezaugi court
would find Norris
persuasive and, thus, argued vehemently against New York
adopting it:
[E]Ven if the Federal Courts limit the dectrine [sic] of
recantation as
last enunciated in People v. Gillette [ ] there is no reason
for this
Court to renounce the Gillette case. . . . Even if the
Norris rule
completely and without exception discredited the Gillette
rule, which
it does not, it would not be the first time that the United
States rule
of policy was different from the state rule in a particular
instance. A
most notable illustration is that in the United States
Courts, a
constitutional prohibition against unlawful search and
seizure is
rigidly observed, whereas in our Courts we do not have the
enforcement of such a prohibition despite a similar state
constitutional provision.
Brief for Appellant at 53-54, People v. Ezaugi, 141 N.E.2d
580 (N.Y. 1957) (citing
People v. Defore, 150 N.E. 585 (N.Y. 1926), cert. denied,
270 U.S. 657 (1926)).
[FN47]. See infra note 65 and accompanying text.
[FN48]. Norris, 300 U.S. at 576 (emphasis added).
[FN49]. See id. at 574.
[FN50]. Ezaugi, 141 N.E.2d at 583.
[FN51]. Id.
[FN52]. See id.
[FN53]. Id. at 583 (Desmond, J., dissenting) (stating that
the new elements, "while
appearing to reaffirm the ancient and sound recantation
rule, (citation omitted)
actually so limits and hedges that rule as to leave it
without any utility").
[FN54]. See New York State Commission on Revision of the
Penal Law and Criminal
Code, Proposed New York Penal Law, Commission Staff Notes
135 (1964).
[FN55]. Model Penal Code § 241.1(4) (1967). See infra note
116 and accompanying
text for the full text of this statute.
[FN56]. See Ezaugi, 141 N.E.2d at 583.
[FN57]. See N.Y. Penal Law § 210.25 (McKinney 1988).
[FN58]. The retraction statute is equally applicable to
civil trials, but it may have
stronger due process implications for criminal trials. See
supra note 13.
[FN59]. For a more detailed discussion of locus
poenitentiae, see infra notes 96-116
and accompanying text.
[FN60]. People v. Brill, 165 N.Y.S. 65, 71 (N.Y. Ct. of Gen.
Sessions, N.Y. County
1917) (citing People v. Gillette, 111 N.Y.S. 133 (N.Y. App.
Div. 1908)).
[FN61]. See People v. Markan, 206 N.Y.S. 197, 199 (N.Y. Ct.
of Gen. Sessions, N.Y.
County 1924).
[FN62]. See People v. Ashby, 195 N.Y.S.2d 301, 304 (N.Y.
App. Div. 1959), rev'd on
other grounds, 168 N.E.2d 672 (N.Y. 1960).
[FN63]. N.Y. Penal Law § 210.25, Arnold D. Hechtman,
Practice Commentaries, 488,
489-90 (McKinney 1975); N.Y. Penal Law § 210.25, Richard G.
Denzer & Peter
McQuillan, Practice Commentary, 710, 712 (McKinney 1967).
The preceding
commentaries, by different authors writing on the same
statute, are identical.
Interestingly, the subsequent McKinney commentary included
in N.Y. Penal Law §
210.25, William C. Donnino, Practice Commentaries, 515, 521
(McKinney 1988),
makes no mention of this distinction. Perhaps the last
author, Mr. Donnino,
because of a lack of controlling authority, disbelieves the
distinction asserted by
his predecessors to the McKinney commentaries.
[FN64]. See infra notes 104-07 and accompanying text.
[FN65]. 300 U.S. 564, 574 (1937).
[FN66]. See id. Keep in mind, the key elements for perjury
culpability are that the
false statement was known to be false and made willfully.
Without these elements,
perjury cannot be predicated. But, also remember, a witness
threatened with perjury
can argue that a subsequent statement to correct or clarify
previous testimony is
indicative that one did not willfully and knowingly lie from
the start. In such an
instance, a crime has not been committed. See supra notes 1,
22-29 and
accompanying text.
[FN67]. Norris, 300 U.S. at 574.
[FN68]. See id. at 574. See also Loubriel v. United States,
9 F.2d 807 (2d Cir. 1926);
Martin v. Miller, 4 Mo. 39 (1835).
[FN69]. See Norris, 300 U.S. at 574.
[FN70]. See W.M. Moldoff, Annotation, Recantation as Defense
in Perjury
Prosecution, 64 A.L.R.2d 276, at 278 (1959).
[FN71]. See 18 U.S.C. § 1623 (1994).
[FN72]. See Wis. Stat. § 946.31 (1996).
[FN73]. Today, almost all recantation defenses are
statutory.
[FN74]. The American Law Institute codified the Ezaugi
decision in Model Penal
Code § 241.1(4) (1967), changing the language slightly,
which, in turn, New York's
legislature adopted in its codification of the recantation
defense in N.Y. Penal Law §
210.25 (McKinney 1988). Since then, most states with
recantation defenses have
adopted the Ezaugi decision, as enunciated in the Model
Penal Code's language.
[FN75]. See Norris v. United States, 86 F.2d 379 (8th Cir.
1936), rev'd, 300 U.S. 564
(1937); Salzman, supra note 4, at 280; W. M. Moldoff,
Annotation, Recantation as
Defense in Perjury Prosecution, 64 A.L.R.2d 276, at 278
(1959).
[FN76]. Black's Law Dictionary 1014 (6th ed. 1990).
[FN77]. 111 N.Y.S. 133 (N.Y. App. Div. 1908).
[FN78]. See United States v. Norris, 300 U.S. 564, 575
(1937) (criticizing Gillette's
precedential value because it was not rendered by the court
of appeals, New York's
highest court, and because a subsequent case, People v.
Markan, 206 N.Y.S. 197
(N.Y. Ct. of Gen. Sessions, N.Y. County 1924), refused to
follow Gillette where a
contradictory statement was not part of the same examination
at which the first
statement was uttered); People v. Ezaugi, 141 N.E.2d 580,
582-83 (N.Y. 1957)
(implying that the recantation defense should not be
universally applied in
situations where the liar has a tainted motive for
recanting).
[FN79]. See, e.g., Colo. Rev. Stat. Ann. § 18-8-508 (West
1986); N.J. Stat. Ann. §
2C:28-1 (d) (West 1995).
[FN80]. Model Penal Code § 241.1 (4) (1997). See also the
following state
recantation statutes, which use the same or similar
language: Ala. Code §
12A-10-107 (1995); Del. Code Ann. tit 11, § 1231 (1996);
Fla. Stat. Ann. § 837.07
(West 1994); Haw. Rev. Stat. § 710-1064 (1993); Ill. Comp.
Stat. Ann. ch. 720, para.
5/32-2 (c) (West 1993); Ky. Rev. Stat. Ann § 523.090
(Michie/Bobbs-Merrill 1990);
Me. Rev. Stat. Ann. tit. 17-A, § 451 (3) (West 1983); Mont.
Code Ann. § 45-7-201(5)
(1997); N.D. Cent. Code § 12.1-11-04 (3) (1997); N.J. Stat.
Ann. § 2C:28-1 (d) (West
1995); N.Y. Penal Law § 210.25 (McKinney 1988); Or. Rev.
Stat. § 162.105 (1995); 18
Pa. Cons. Stat. Ann. § 4902 (d) (West 1983); R.I. Gen. Laws
§ 11-33-1 (d) (1994);
Wash. Rev. Code Ann. § 9A.72.060 (West 1988).
[FN81]. See United States v. Clavey, 578 F.2d 1219, 1222 n.5
(7th Cir. 1978); State v.
Hanson, 302 N.W.2d 399 (N.D. 1981). Both the Clavey and
Hanson cases hold that
their recantation statutes are based on N.Y. Penal Law §
210.25 (McKinney 1988),
which is based on the rule enunciated in People v. Ezaugi,
141 N.E.2d 580 (N.Y.
1957). One part of the original Ezaugi rule, the Hanson
court pointed out, is that a
successful retraction defense is viable "when no reasonable
likelihood exists that
the witness has learned that his perjury is known or may
become known to the
authorities." Hanson, 302 N.W.2d at 403 (quoting Ezaugi, 141
N.E.2d at 583)
(emphasis added). This, essentially, is the good-faith
standard, which is discussed
later. See infra 87-88 and accompanying text. Thus, the
Hanson court believes
that the exposure of the perjury becomes "manifest" when the
defendant knows or
has reason to know that the authorities are or will be aware
of the falsification . . . . it
may be important to know whether or not the authorities have
already discovered,
or are certain to discover, the falsification when we are
assessing the defendant's
state of mind, but that alone does not determine the
validity of the retraction
defense. It is not the state of mind of the authorities that
controls.
Hanson, 302 N.W.2d at 403.
The federal judiciary shares similar sentiments and
interprets this language as
applying to the witness, himself. See, e.g., United States
v. Denison, 663 F.2d 611
(5th Cir 1981); United States v. Serimgeour, 636 F.2d 1019
(5th Cir. 1981); United
States v. Tucker, 495 F. Supp. 607 (E.D.N.Y. 1980); United
States v. Swainson, 548
F.2d 657 (6th Cir. 1977); United States v. Mazzei, 400 F.
Supp. 17 (W.D. Pa. 1975).
See generally Annotation, 65 A.L.R. Fed. 177, 191-95
(1983).
[FN82]. See infra notes 87-88 and accompanying text where
this Article discusses
the good-faith motive.
[FN83]. This Article later advocates this type of motive
standard for an ideal
recantation defense. See infra notes 138-53 and accompanying
text.
[FN84]. The element would also be fulfilled if at the time
of the trial for perjury it
comes to light that the lying subsequently came to the
attention of the authorities.
[FN85]. Again, we presume that this language applies to the
liar's subjective belief
that the authorities have or will discover his lies. There
is little, if any, case law to
contradict this hypothesis. Assuming, however, this language
is inapplicable to the
liar's mens rea, there would be a different outcome under
the following hypothetical:
A witness, who happens to be nervous and perhaps a bit
paranoid, convincingly
lies on the witness stand. The witness subjectively believes
the authorities have or
will discover his falsehoods, but in reality there is no
prospect of the disclosure.
Because of this fear, he says to the court, "I know the
prosecution learned my
testimony was intentionally false; therefore, I would like
to retract it now and
replace it with the truth," which he does. If we interpret
the language as not
applying to the liar's beliefs, the witness will have
successfully fulfilled the
objective- view-of-motive element under this interpretation
of the language, and he
would be protected from perjury prosecution. (Only if the
authorities have or will
possibly catch the lie can the witness be prosecuted.) It
would be irrelevant that his
mens rea is guilty, in that he believes he will soon be
caught.
[FN86]. See supra note 85.
[FN87]. The language quoted above is fictitious; no statute
uses precisely the same
language, but the following statutes have similar language:
Alaska Stat. §
11.56.235(b)(1) (1996); Haw. Rev. Stat. § 710-1064(1)(a)
(1993). In addition, Or. Rev.
Stat. § 162.05(a) (1997) has similar motive language, which
provides a retraction to
be made "in a manner showing complete and voluntary
retraction of the prior false
statement." Id.
[FN88]. See supra notes 80-85 and accompanying text.
[FN89]. Colo. Rev. Stat. Ann. § 18-8-508 (West 1986); Ill.
Comp. Stat. Ann. ch. 720,
para. 5/32-2 (c) (West 1993); Iowa Code Ann. § 720.2 (West
1993). See also People
v. Ezaugi, 141 N.E.2d 580, 584 (N.Y. 1957) (Desmond, J.,
dissenting) (arguing that
motive element should not be considered for deciding the
availability of the
recantation defense); Commonwealth v. Irvine, 14 Pa. D.
& C. 275 (1930). Today, the
Irvine court's adoption of the no-motive standard is not
followed because
Pennsylvania's retraction statute, 18 Pa. Cons. Stat. Ann. §
4902(d) (1983),
specifically provides for a motive requirement.
[FN90]. See Ezaugi, 141 N.E.2d at 582-83. In addition, this
Article is critical of the
no-motive standard.
[FN91]. See id. at 583; Salzman, supra note 4, at 280.
[FN92]. United States v. Norris, 300 U.S. 564, 574 (1937);
Recent Case, Criminal Law
- Perjury - Retraction of False Testimony Held No Bar to
Prosecution, 51 Harv. L.
Rev. 165 (1937) ("Since, however, a perjurer will not
usually retract unless his
falsehood has been demonstrated, retractions thus induced
will be of little value in
furthering the administration of justice.").
[FN93]. Ezaugi, 141 N.E.2d at 584 (Desmond, J.,
dissenting).
[FN94]. See Model Penal Code § 241 (4) (1962). This code
section provides that a
retraction must be made "before it became manifest that the
falsification was or
would be exposed." Id.
[FN95]. Model Penal Code § 241 cmt. 7 (1980).
[FN96]. Justice Roberts in United States v.
Norris, 300 U.S. 564, 572 (1937), uses
this term to describe the time period in which one has to
recant his false statement.
[FN97]. Ezaugi, 141 N.E.2d at 580.
[FN98]. Model Penal Code § 240.1 (4) (1962). See infra
note 116 and accompanying
text for the full text.
[FN99]. N.Y. Penal Law § 210.25 (McKinney 1988).
[FN100]. Ezaugi, 141 N.E.2d at 583.
[FN101]. Ill. Comp. Stat. Ann. ch. 720, para. 5/32-2 (c)
(West 1993). See also Fla. Stat.
Ann. § 837.07 (West 1996) (using the language "in the same
continuous proceeding
or matter").
[FN102]. Tex. Penal Code Ann. § 37.05 (West 1995).
[FN103]. Or. Rev. Stat. § 162.105(c) (1997).
[FN104]. See supra notes 59-64 and accompanying
text.
[FN105]. State in the Interest of J.S., 642 A.2d 430 (N.J.
Super. Ct. Ch. Div. 1994).
[FN106]. See People v. Valdez, 568 P.2d 71 (Colo. 1977).
Although Colorado's
statute codifying the recantation defense already had
defined the word
"proceeding" by statute, the Valdez court further defined
it as including various
stages of a trial, but not a mistrial. Id.
[FN107]. Ark. Code Ann. § 5-53-104 (Michie 1995) provides:
"Statements made in
separate hearings at separate stages of any official
proceeding shall be deemed to
have been made in the course of the same proceeding." But
this is limited by Brown
v. State, 707 S.W.2d 313 (1986), which held in the context
of Arkansas' recantation
statute, that a hearing plea withdrawal and the hearing on
the accepted guilty pleas
were not part of the same "proceeding" when the previous
phase ended. Colo. Rev.
Stat. Ann. § 18-8-508 (West 1986) in part, provides:
"Statements made in separate
hearings at separate stages of the same trial or
administrative proceeding shall be
deemed to have been made in the course of the same
proceeding." Id.
[FN108]. Although there may be language defining the
period of time, it is often not
clear what that language means, unless there is adequate
case law to explain it
further.
[FN109]. Colo. Rev. Stat. Ann. § 18-8-508 (West
1990).
[FN110]. Id. Although Colorado defines "procedure" within
the context of its
retraction defense, many other states have not developed a
specific definition.
[FN111]. Although most the locus poenitentiae for most
defenses have an event
upon which it is contingent, the vast majority are hybrid
locus poenitentiae. In
other words, they require that one recant before a
contingent event (e.g., before the
parties and procedure are prejudiced), in addition to
having to follow a finite period
of time (e.g., before the conclusion of the
proceeding).
[FN112]. The following are some defenses that require one
to recant before one or
both of these contingencies: Ala. Code § 12A-10-107
(1995); Del. Code Ann. tit 11,
§ 1231 (1995); Fla. Stat. Ann. § 837.07 (West 1994); Haw.
Rev. Stat. § 710-1064
(1993); Ill. Comp. Stat. Ann. ch. 720, para. 5/32-2 (c)
(West 1993); Ky. Rev. Stat. Ann
§ 523.090 (Michie 1990); Me. Rev. Stat. Ann. tit. 17-A, §
451 (3) (West 1983); Mont.
Code Ann. § 45-7- 201(5) (1997); N.D. Cent. Code §
12.1-11-04(3) (1997); N.J. Stat.
Ann. § 2C:28-1(d) (West 1995); N.Y. Penal Law § 210.25
(McKinney 1988); Or. Rev.
Stat. § 162.105 (1997); 18 Pa. Cons. Stat. Ann. § 4902(d)
(1983); R.I. Gen. Laws §
11-33-1 (d)(1994); Wash. Rev. Code Ann. § 9A.72.060 (West
1988).
[FN113]. Section X is a fictitious statute. At present, no
jurisdictions employ a
solely contingent locus poenitentiae. (Most employ one
that is both contingent
and dependent on a fixed time period, which this Article
calls a hybrid locus
poenitentiae.) This Article later advocates an ideal
reformulation of recantation
statutes and employs the contingent locus poenitentiae
type of locus potentate.
See infra notes 151-53 and accompanying text.
[FN114]. Salzman, supra note 4, at 279-280.
[FN115]. See People v. Ezaugi, 141 N.E.2d 580, 583 (N.Y.
1957).
[FN116]. Model Penal Code § 240.1 (4) (1962).
[FN117]. Id.
[FN118]. See Ala. Code § 13A-10-107 (1995); Del. Code Ann.
tit. 11, § 1231 (1995);
Fla. Stat. Ann. § 837.07 (West 1994); Ky. Rev. Stat. Ann.
§ 523.090 (Michies 1990);
Mont. Code Ann. § 45-7-201(5) (1997); N.Y. Penal Law §
210.25 (McKinney 1988);
N.D. Cent. Code § 12.1-11-04(3) (1997); 18 Pa. Cons. Stat.
Ann. § 4902(d) (West
1983); Wash. Rev. Code Ann. § 9A.72.060 (West 1988).
[FN119]. See, e.g., Colo. Rev. Stat. Ann. § 18-8-508 (West
1986); Ill. Comp. Stat.
Ann. ch. 720, para. 5/32-2 (c) (West 1993); Me. Rev. Stat.
Ann. tit. 17-A, § 451 (3)
(West 1983); Tex. Penal Code Ann. § 37.05 (West 1994). See
also N.J. Stat. Ann. §
2C:28-1 (d) (West 1995), which provides similar language:
"(W)ithout having
caused irreparable harm to any party." Arkansas provides
"any person who in
making a retraction causes termination of any official
proceeding by reason of
prejudice to a legal right of party to the proceeding
shall be guilty of a Class A
misdemeanor." Ark. Code Ann. § 5-53- 104 (Michie
1997).
[FN120]. See supra notes 17-64 and accompanying
text.
[FN121]. But see, e.g., United States v. Anfield, 539 F.2d
674 (9th Cir. 1976); United
States v. Slawick, 408 F. Supp. 190 (D.C. Del 1975);
United States v. Crandall, 363 F.
Supp. 648 (W.D. Pa. 1973); United States v. Krogh, 366 F.
Supp. 1255 (D.C. Dist.
1973); Annotation, 65 A.L.R. Fed. 177, 189-91
(1983).
[FN122]. See Model Penal Code § 241.1 cmt. 7 (1980).
[FN123]. Harris, supra note 3, at 1792.
[FN124]. Ala. Code § 12A-10-107 commentary (1996) (arguing
that the vagueness
on what "substantially affects a proceeding is
undesirable").
[FN125]. United States v. Norris, 300 U.S. 564, 574
(1937).
[FN126]. See generally Joshua Dressler, Understanding
Criminal Law S2.03 (c)
(1987); Wayne R. LaFave & Austin W. Scott, Jr.,
Criminal Law § 1.5 (a) (6) (2d ed.
1986); Immanuel Kant, The Metaphysical Elements of Justice
99- 107 (J. Ladd trans.,
1965).
[FN127]. For information on specific and general
deterrence see generally Sanford
H. Kadish & Stephen J. Schulhofer, Criminal Law and
Its Processes: Cases and
Materials 115 (6th ed. 1995).
[FN128]. See infra notes 138-50 and accompanying text
where this Article discusses
this factor in greater detail, in addition to advocating
that motive for recanting be
the most important element of a recantation defense.
[FN129]. See Franklin Zimring & Gordon Hawkins,
Deterrence: The Legal Threat in
Crime Control 158-72 (1973).
[FN130]. See generally Kaddish & Schulhofer, supra
note 127, at 101-31.
[FN131]. See supra notes 128-53 and accompanying
text.
[FN132]. See, e.g., Mich. Comp. Laws Ann. § 750.423 (West
1996) (providing a
felony punishment not more than fifteen years in state
prison).
[FN133]. Cf. Bussey v. State, 64 S.W. 268, 269 (Ark.
1901).
[FN134]. Classical utilitarianism was formulated over two
centuries ago by Jeremy
Bentham. See Jeremy Bentham, An Introduction to the
Principles of Morals and
Legislation (1789). See generally Dressler, supra note
126, § 2.03.
[FN135]. See, e.g., H.L. Pohlman, Justice Oliver Wendell
Holmes & Utilitarian
Jurisprudence (1984).
[FN136]. 8 See, e.g., Colo. Rev. Stat. Ann. § 18-8-508
(West 1996) (retraction
defense available only against charges of perjury in the
first degree); Del. Code
Ann. tit 11, § 1231 (1995) (retraction defense available
only for perjury, not for
misdemeanor of making a false written statement); Tex.
Penal Code Ann. § 37.05
(West 1994) (retraction defense only available for felony
of aggravated perjury, not
for misdemeanor of simple perjury).
[FN137]. See supra note 126 and accompanying text.
[FN138]. See United States v. Denison, 663 F.2d 611 (5th
Cir. 1981).
[FN139]. N.Y. Penal Law § 210.25 (McKinney 1988).
[FN140]. See supra notes 54-57 and accompanying
text.
[FN141]. The retraction provision of the federal perjury
statute, 18 U.S.C. § 1623(d)
(1994), has received criticism because of the doubt over
whether it or 18 U.S.C. §
1621 (1994), another perjury statute that disallows the
retraction defense, is
applicable. Although both are perjury statutes, only the
former contains a
recantation defense in sub-part (d). Thus, if unsure which
statute is applicable to
them, witnesses will likely choose not to recant. For a
detailed discussion of this
see George W. Aycock, III, Note, Nothing But the Truth: A
Solution to the Current
Inadequacies of the Federal Perjury Statutes, 28 Val. U.
L. Rev. 247 (1993). See
generally Harris, supra note 3, at 1792; 65 Am. Jur. 2d
Perjury § 107 (1988); Susan
W. Brenner & Gregory G. Lockhart, Federal Grand Jury
Practice S13.17 (1993); The
Grand Jury Project Inc. of the National Lawyers Guild,
Representation of Witnesses
Before Federal Grand Juries § 15.3 (d) (3d ed. 1993);
Salzman, supra note 4, at
280-86.
[FN142]. The ambiguity of New York's recantation defense
was discussed in detail
earlier above. See supra notes 58-64 and accompanying
text.
[FN143]. As mentioned earlier, some state statues have
defined important terms
within their statutes, and this is indeed wise. See supra
note 107. More jurisdictions
should do so as well.
[FN144]. See supra notes 80-86, where the
objective-view-on-motive element is
discussed in detail.
[FN145]. See supra notes 134-35 and accompanying
text.
[FN146]. 300 U.S. 564, 574 (1937).
[FN147]. People v. Ezaugi, 141 N.E.2d 580, 584 (N.Y. 1957)
(Desmond, J., dissenting).
[FN148]. Id.
[FN149]. Id.
[FN150]. United States v. Del Toro, 513 F.2d 656 (2d Cir.
1975); Salzman, supra note
4, at 280.
[FN151]. See supra notes 144-50 and accompanying
text.
[FN152]. Recantation of perjured testimony produces a
complex set of issues in
both criminal and civil trials involving how or whether to
go about a retrial. In the
interest of brevity, this Article does not touch upon
them. For more information, see
generally Janice J. Repka, Comment, Rethinking the
Standard for New Trial Motions
Based upon Recantations of Newly Discovered Evidence, 134
U. Pa. L. Rev. 1433
(1986); Sharon Cobb, Comment, Gary Dotson as Victim: The
Legal Response to
Recanting Testimony, 35 Emory L.J. 969 (1986).
[FN153]. Harris, supra note 3, at 1792. See also Salzman,
supra note 4, at 280. Mr.
Salzman, contrary to the previously mentioned commentator,
Ms. Harris, offers at
least some support for the effect-on-party-or-proceeding
and locus poenitentiae
elements as articulated in People v. Ezaugi, 141 N.E.2d
580 (N.Y. 1957).
Nevertheless, as this Article has illustrated, his
arguments for
effect-on-party-or-proceeding and locus poenitentiae
elements lack merit. Mr.
Salzman writes:
While some state and federal courts have frustrated the
development of a
workable recantation rule through misplaced emphasis on
chronological timeliness
(which this Article calls a fixed locus Poenitentiae), the
"New York rule" (see supra
note 75 and accompanying text) advanced in Ezaugi
recognized the proper
interweaving of the factors of timeliness, motive, and
prejudice as a better solution
to the perjury problem. The Ezaugi test requires that the
presiding judge inquire
initially into the "timeliness" of a correction; however,
the question of timeliness
turns on whether the testimony sought to be corrected has
already prejudiced the
administration of justice and on whether the witness
believed he was providing
information with his correction which the authorities did
not already have. By
varying the intensity of this scrutiny, a deciding court
can encourage corrections
whenever it deems correction helpful without making the
privilege available to
every potential perjurer.
Salzman, supra note 4, at 280 (citation omitted).
Additionally, Mr. Salzman
advocates - in a more conclusory manner - that recantation
defenses should
incorporate the effect-on-party-or-proceeding element:
"Extreme cases, such as a
correction offered subsequent to the completion of a
trial, surely cannot be
permitted. Thus, even under the most liberal view of
'immediately,' there must be
some point after which a correction will always be too
late." Id. at 279 n.54. Notice
that Mr. Salzman fails to give any reason for such a time
limitation.