United States Court of Appeals For the Seventh Circuit
Criminal Procedure — prosecutorial misconduct
Although a prosecutor may not offer testimony that the prosecutor knows to be false, he is not forbidden from exploiting errors in testimony adduced by the defense.
“Prosecutors often know that defense testimony is wrong. For example, a defendant may testify to a false alibi. A prosecutor who knows that the defendant’s testimony is bogus is entitled to take advantage of the opportunity to undermine the defense, perhaps by arguing that the testimony conflicts with that of other witnesses and that someone must be lying, or perhaps (parallel to the situation here) by arguing that, if the alibi is truthful, it shows that the defendant had a motive, or was committing some other crime that reflects poorly on his honesty. The prosecutor not only argued that the supposed arrest in January 2000 was evidence of motive but also tried to exploit an alibi that the prosecutor thought fishy: Bland testified that he was selling cocaine when the murder occurred. The prosecutor, who did not believe that alibi, nonetheless used it to contend that Bland had depicted himself as a person who would violate the law, including the laws against murder and perjury, whenever he thought he could get away with it. Bland does not contend that this use of his testimony violated Napue; it is hard to see why the use of his testimony about the date a gun had been confiscated from him would do so.”
Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Easterbrook, J.