Eighth Circuit Notes Split Re Whether a Due Process Violation Occurs if a Conviction Is Based on Perjured Testimony Unknown to the Prosecution

Per Evenstad v. Carlson, 470 F.3d 777 (8th Cir. Nov. 30, 2006):

The Supreme Court has not addressed the issue of whether a due process violation occurs if a conviction is based on perjured testimony which was unknown to the prosecution at the time of trial. See Jacobs v. Scott, 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995) (Stevens, J. dissenting); Drake v. Portuondo, 321 F.3d 338, 345 n. 2 (2d Cir.2003); see also Schaff v. Snyder, 190 F.3d 513, 530 (7th Cir.1999). Furthermore, there is a circuit split regarding which standard applies in federal cases dealing with these facts. [FN6] . . . .

FN6. Most circuits, including this one, absent a finding the government knowingly sponsored false testimony, require a petitioner seeking a new trial to show the jury would have "probably" or "likely" reached a different verdict had the perjury not occurred. See, e.g., United States v. Ogle, 425 F.3d 471, 472 (7th Cir.2005); United States v. Williams, 233 F.3d 592, 594 (D.C.Cir.2000); United States v. Lofton, 233 F.3d 313, 318 (4th Cir.2000) (applying "probably" standard to newly discovered evidence, but recognizing that a more lenient "might" standard would apply if the evidence is a witness recantation); United States v. Huddleston, 194 F.3d 214, 217 (1st Cir.1999); United States v. Diaz, 176 F.3d 52, 106 (2d Cir.1999); United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir.1997); United States v. Duke, 50 F.3d 571, 576-77 (8th Cir.1995); and United States v. Krasny, 607 F.2d 840, 843 (9th Cir.1979). Other circuits, like the Minnesota courts, apply a "possibility" standard granting relief whenever the discovery "might" have produced an acquittal. See, e.g., United States v. Roberts, 262 F.3d 286, 293 (4th Cir.2001); United States v. Willis, 257 F.3d 636, 643 (6th Cir.2001); and United States v. Massac, 867 F.2d 174, 178 (3d Cir.1989) (implicitly adopting Larrison).

As the magistrate judge correctly noted, the majority of circuits, including ours, absent a finding the prosecutor knew of perjured testimony, require the petitioner to show the false testimony "would be likely to result in an acquittal." United States v. Duke, 50 F.3d 571, 576-77 (8th Cir.1995).