Wednesday, December 22, 2010
Peter A. Joy (Washington University School of Law) has posted Constructing Systemic Safeguards Against Informant Perjury (Ohio State Journal of Criminal Law, Vol. 7, p. 677, 2010) on SSRN. Here is the abstract:
Reliance on an informant's testimony as the primary basis for charging and convicting the accused is fraught with problems. While the hypothetical explicitly addresses the ethical dilemmas defense counsel faces when her client is trading false testimony in exchange for a reduced charge and shorter sentence, the hypothetical also implicitly illustrates the inadequacies of our criminal justice system's current handling of testimony from cooperating witnesses.
The focus on the ethical, and perhaps moral, obligations of Lawyer representing a potentially perjurious Client begs larger questions. Are there safeguards the prosecutor's office could employ to ensure that the trial prosecutor, who is focused on convicting Kingpin, has not been manipulated by Client or has not consciously or unconsciously supplied the facts necessary for Client to manufacture the testimony required to convict Kingpin? What criminal justice reforms would help to prevent or discredit such perjury and make a wrongful conviction less likely? These are some of the additional questions we should be exploring. In my comment, I first illustrate why focusing solely on defense counsel ethics is not wholly sufficient and next briefly discuss some criminal justice system reforms that would better safeguard the accused.