Recantations and the Perjury Sword

34 Pages Posted: 9 Feb 2017 Last revised: 29 Jun 2017

See all articles by Russell D. Covey

Russell D. Covey

Georgia State University College of Law

Date Written: 2017

Abstract

Courts are notoriously skeptical of recantation evidence, in part because of finality concerns, but also because they tend to treat such statements as less reliable than the original, in-court testimony that is being recanted. This essay argues that such skepticism is blind to what the essay refers to as the “perjury sword” – credible threats by police and prosecutors to bring perjury charges against witnesses who wish to recant prior statements. As illustrated in numerous cases, including many that resulted in formal exonerations, state use of the perjury sword can all-too-easily induce false testimony and contribute to wrongful convictions.

This essay argues for reforming our approach to recantation evidence. While acknowledging some of the challenges police and prosecutors face, particularly when dealing with crimes committed in high-crime areas and cases of domestic violence, the essay suggests a variety of strategies to mitigate the worst abuses of the perjury sword. These strategies include reducing witness exposure to perjury charges, expanding the recantation defense, and reconsidering how courts evaluate recantation testimony. While it is imperative that witnesses testify truthfully at trial, serious problems arise when perjury sanctions are deployed to discourage honest recantations. Truth at trial is optimal, but truth delayed is better than no truth at all. The legal system must permit the responsible consideration of recantation evidence, even recognizing that doing so has a cost in terms of finality.

The essay concludes by questioning the legal system’s strong attachment to monistic accounts of truth. Perhaps we would be better served if we embraced a more pluralistic conception of what constitutes truth in criminal justice, if not in the world more generally.

Keywords: law, criminial law, criminal procedure, evidence, perjury, wrongful conviction, exoneration, testimony, trial

JEL Classification: K14, K19, K39, K40, K41, K42

Suggested Citation

Covey, Russell D., Recantations and the Perjury Sword (2017). Albany Law Review, Vol. 79, pp. 101-133, 2015/2016; Georgia State University College of Law, Legal Studies Research Paper No. 2017-08. Available at SSRN: https://ssrn.com/abstract=2913222

Russell D. Covey (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States
404-4413-9182 (Phone)
404-413-9225 (Fax)

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