NCJ Number
76837
Journal
University of Pennsylvania Law Review Volume: 129 Issue: 3 Dated: (January 1981) Pages: 624-700
Date Published
1981
Length
77 pages
Annotation
This article explores the boundaries of legitimate grand jury interrogation as it bears on the subject of perjury and suggests guidelines that balance needs of the investigatory process and the rights of witnesses.
Abstract
The deliberate use of the grand jury to secure perjured testimony is termed the 'perjury trap.' In a typical perjury trap case, the prosecutor suspects the witness of criminal activity and proof exists which confirms the suspicion. However, the guilty party cannot be prosecuted for a substantive crime because of a legal bar, such as a statute of limitations or insufficient admissible evidence. The witness is a prominent person against whom an indictment for perjury would invite public approval as well as demonstrate effective law enforcement. The prosecutor, frustrated at the inability to indict for a substantive crime, therefore seeks to induce the witness to testify in a manner that the prosecutor knows will be contradicted by reliable evidence, thereby subjecting the witness to prosecution for perjury. This practice has escaped comment or criticism by most authorities, primarily because it raises questions of constitutional magnitude. Claims frequently made to invalidate a perjury indictment included insufficiency of the evidence, lack of jurisdiction of the tribunal, immateriality of the questions, and, primarily use of entrapment. One of the first reported cases to consider the entrapment attack upon a perjury indictment was United States v. Remington (1953). The formulation that courts most often articulate in attempting to identify a perjury trap is whether the sole and exclusive purpose of the prosecutor was to extract perjury. However, this test is so restrictive that is affords virtually no protection from prosecutorial abuse. A new standard should be adopted with regard to prosecutorial questioning before the grand jury. If the prosecutor's overriding or dominant purpose is to extract perjury, then prosecution of the witness for that perjury should be barred. The article includes 278 footnotes.