Court: Prosecutors Need to Probe Witness’s Veracity When Challenged

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On June 17, 2011, the U.S. Court of Appeals for the 7th Circuit ruled in United States v. Freeman that federal prosecutors in criminal cases have an affirmative duty to investigate the viability of a defense challenge regarding whether a cooperating witness could be lying on the stand. This requirement, as expressed in this new opinion, differs from and goes well beyond the well-known existing obligation that prosecutors have to avoid knowingly presenting false evidence.

Prior to Freeman, courts have merely required that a prosecutor need only have reason to believe that the witness is telling the truth before placing her on the stand. Critics often responded that this standard allowed prosecutors to simply accept a witness’s story as truth once she is sworn in and to turn a blind eye to any accusations of lying. Under the 7th Circuit’s standard announced in Freeman, prosecutors must proactively investigate a witness’s veracity when alerted of a possible falsehood.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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