People v. Force, No. G055482, 2019 WL 4071849 (Cal. Ct. App. Aug. 29, 2019)
Denial of Fair Trial
Appellant Steven Force, a sexually violent predator receiving treatment at a state mental hospital for pedophilia and exhibitionism challenged the trial court’s order denying his petition to be placed in a conditional release program known as CONREP that includes daily monitoring with GPS technology, drug testing, polygraph assessments, weekly treatment, and job and housing assistance. The Court of Appeal ruled that he was denied a fair trial because the prosecutor interfered with his right to testify, and the trial court erroneously refused to admit his release plan into evidence.
Core Duty of Prosecutors-Provide a Fair Trial
The Court emphasized that the one absolute requirement of our criminal justice system is that the accused must receive a fair trial. The whole job of the trial prosecutor is to provide a fair trial. “Fairness is the sine qua non of the criminal justice system,” the Court declared and cited:
“The primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth.” (Nat. Dist. Attys. Assn., National Prosecution Standards (3d. ed. 2009), § 1-1.1.) Because a successful prosecution is defined not by the result, but by the process, unrelenting vigilance and ethical clarity is require of prosecutors if they are to fulfill our nation’s promise of a fair trial.
Appellant contends the prosecutor impermissibly infringed his constitutional right to testify by raising the prospect of perjury with his attorney before trial. Force’s lawyer told the trial judge that the prosecutor had already indicated to her that he “would charge” appellant with perjury if he testified inconsistently with his prior testimony denying those incidents.
This allegation concerned the trial judge. He told the prosecutor, “You can’t do that. There is a case that says you can’t.” The prosecutor insisted, “I never said that.” “What I said is [appellant] could be charged with perjury because he admittedly lied” in his prior testimony.
Forces lawyer told the trial judge that perjury charges would be particularly inappropriate in this case because appellant’s admissions about his prior sexual misconduct were important in terms of facilitating his progress in treatment.
The judge admonished the prosecutor not to “play games” with the perjury issue because it is improper for a prosecutor to threaten a prospective defense witness with perjury.
The judge strongly suggested it would be a good idea for the prosecutor to grant appellant immunity, which would resolve the issue of intimidation, but no immunity offer was made. Appellant decided not to testify at his trial after being informed of the prosecutor’s statements regarding perjury.
Right of Defense Witnesses not to be Intimidated
The defendant in proceedings has a constitutional right to present a defense, which includes calling witnesses in his favor and testifying on his own behalf. (U.S. Const., amend. VI; Rock v. Arkansas (1987) 483 U.S. 44, 51; People v. Lucas (1995) 12 Cal.4th 415, 444)
Prosecutors are not allowed to engage in conduct that undermines the willingness of a defense witness to take the stand. (People v. Warren (1984) 161 Cal.App.3d 961, 972.) Prosecutors may not threaten to prosecute a witness for any crime he or she committed in the course of testifying, such as perjury. (In re Martin (1987) 44 Cal.3d 1, 30)
Misconduct by Prosecutor
Improper intimidation of a defendant occurs when the prosecutor engages in activity that is “wholly unnecessary to the proper performance of his duties and is of such a character as ‘to transform [a defense witness] from a willing witness to one who would refuse to testify.” (Martin, supra, 44 Cal.3d at p. 31)
In this case, the prosecutor’s statements to defense counsel about the prospect of perjury were wholly unrelated to his duties. The prosecutor asked defense counsel if she was worried about appellant being charged with perjury and told her that no one has the right to avoid the consequences of making false statements at trial.
American Bar Association Standards Governing Prosecutorial Conduct
American Bar Association standards governing prosecutorial conduct provide, “The prosecutor should know and follow the law and rules of the jurisdiction regarding victims and witnesses.” He “should not act to intimidate or unduly influence any witness.” And, he should not discuss the potential criminal liability of a witness in a manner that is likely to “intimidate the witness, to influence the truthfulness or completeness of the witness’s testimony, or to change the witness’s decision about whether to provide information.” (ABA Criminal Justice Standards for the Prosecution Function, Standards 3-3.4 (b), (c) & (g).) In this case, the repeated reminders of the applicability of the law of perjury to the defendant violated those standards and resulted in intimidation of the witness.
California District Attorneys Association’s Ethics Manual
The California District Attorneys Association’s ethics manual advises prosecutors “must be careful to avoid witness intimidation problems,” so as not to interfere with the defendant’s right to present a defense. (CDAA (2016) Professionalism, A Sourcebook of Ethics and Civil Liability Principles for Prosecutors, Ch. VII, p. 17.) “Prosecutorial witness intimidation does not require threatening language, and it may occur even when the prosecutor’s motives are impeccable.” (Ibid.) It also states, “A prosecutor must never tell the attorney for a defense witness that the witness might be prosecuted based upon expected testimony.” (Ibid.) And, it recommends any discussions regarding that possibility occur on the record in court, or be otherwise documented. (Id. at pp. 17, 20.)
Intimidation of Defendant Could Have Impacted the Outcome
Appellant could have addressed some of the concerns the judge had about his suitability for CONREP and could have given the judge an opportunity to assess the level of his insight into his sexual disorders and assess his credibility. If appellant had been able to offer credible testimony about these areas, the outcome may have been different.
The test is whether we are confident beyond a reasonable doubt that his testimony would have had no effect upon the judge’s decision. The Court could not say the prosecutor’s interference with appellant’s right to testify was harmless and reversed the trial court’s denial of the petition.