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State v. Bader9/13/2002
o's entire testimony were disregarded, the jury would still have the testimony of Joseph Bader that the defendant had shot and killed Vicki Bader to consider. Lewis also recognized the "probably produce an acquittal on retrial" standard. Id. at 1362.
In Cornell v. Nix, 921 F.2d 769 (8th Cir. 1990), the State's case rested primarily on the testimony and credibility of the defendant's two half-brothers and on the corroboration testimony of a third man. Id. at 770. When the third man recanted his corroboration testimony, but the information was not revealed to the defense at the time of the defendant's post-conviction proceedings, the Eighth Circuit reversed the defendant's conviction and remanded the case for an evidentiary hearing. The court reasoned that the recantation warranted further inquiry where the testimony "was crucial to the prosecution's case, coupled with the length [twenty-one hours] of the jury deliberations followed by the Allen instruction." Id. at 771; see Allen v. United States, 164 U.S. 492, 501-02 (1896) (Court approved supplemental instructions advising jurors in a deadlock to have proper deference for each other's opinions). Cornell also recognized the "probably produce an acquittal on retrial" standard. Cornell, 921 F.2d at 771.
In Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1988), the defendant's conviction was predicated on the testimony of a husband and wife. After his wife died, the husband recanted his testimony and revealed the same to the then-incarcerated defendant. Id. at 219. In his appeal of a denial of his petition for writ of habeas corpus, the defendant asserted that the prosecutor had knowingly used false testimony to obtain his conviction. Id. The Second Circuit remanded the case to the trial court for an evidentiary hearing to determine the credibility of the recantation, id. at 227, but stated:
e do not believe that due process demands a hearing to determine the credibility of every recantation of testimony. Only recantations of material testimony that would most likely affect the verdict rise to the level of a due process violation, if a state, alerted to the recantation, leaves the conviction in place.
t is our belief that the perjured testimony which will trigger a due process violation must be of an extraordinary nature. It must leave the court with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted. Id. at 225-26.
In addition to the "most likely" standard, Sanders also recognized the standard that "new evidence be so material that it would probably cause a result of acquittal upon retrial." Id. at 225 (quotation omitted). The court acknowledged the less stringent standard of "might alter the verdict of the jury," but limited the application of that standard to cases alleging the "prosecutor's knowing use of false testimony." Id. We reiterate our concurrence with Judge Murphy that there is no basis to conclude that the prosecution knowingly presented false or perjured testimony in this case.
In sum, we find no basis for the defendant's due process argument in the cases cited and we find no violation of the defendant's due process rights either in the trial court's decision not to hold an evidentiary hearing or in not granting the motion for new trial on the basis of newly discovered evidence.
Affirmed.
BRODERICK, J., sat for oral argument but did not take part in the final vote; BROCK, C.J., concurred; HORTON, J., retired, specially assigned under RSA 490:3, concurred.
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