At the murder trial of petitioner the principal state witness, then serving a 199-year sentence for the same murder, testified in response to a question by the Assistant State's Attorney that he had received no promise of consideration in return for his testimony. The Assistant State's Attorney had in fact promised him consideration, but did nothing to correct the witness' false testimony. The jury was apprised, however, that a public defender had promised "to do what he could" for the witness. The question presented is whether on these facts the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment to the Constitution of the United States.
The record in this Court contains testimony from which the following facts could have been found. The murder in question occurred early in the morning of August 21, 1938, in a Chicago, Illinois, cocktail lounge. Petitioner Henry Napue, the witness George Hamer, one Poe and one Townsend entered the dimly lighted lounge and announced their intention to rob those present. An off-duty policeman, present in the lounge, drew his service revolver and began firing at the four men. In the melee that followed Townsend was killed, the officer was fatally wounded, and the witness Hamer was seriously wounded. Napue and Poe carried Hamer to the car where a fifth man, one Webb, was waiting. In due course Hamer was apprehended, tried for the murder of the policeman, convicted on his plea of guilty and sentenced to 199 years. Subsequently, Poe was apprehended, tried, convicted, sentenced to death and executed. Hamer was not used as a witness.
Thereafter, petitioner Napue was apprehended. He was put on trial with Hamer being the principal witness
Finally, the driver of the car, Webb, was apprehended. Hamer also testified against him. He was convicted of murder and sentenced to 199 years.
Following the conviction of Webb, the lawyer who, as former Assistant State's Attorney, had prosecuted the Hamer, Poe and Napue cases filed a petition in the nature of a writ of error coram nobis on behalf of Hamer. In the petition he alleged that as prosecuting attorney he had promised Hamer that if he would testify against Napue, "a recommendation for a reduction of his [Hamer's] sentence would be made and, if possible, effectuated."
This coram nobis proceeding came to the attention of Napue, who thereafter filed a post-conviction petition, in which he alleged that Hamer had falsely testified that he had been promised no consideration for his testimony,
On appeal, the Illinois Supreme Court affirmed on different grounds over two dissents. 13 Ill.2d 566, 150 N.E.2d 613. It found, contrary to the trial court, that the attorney had promised Hamer consideration if he would testify at petitioner's trial, a finding which the State does not contest here. It further found that the Assistant State's Attorney knew that Hamer had lied in denying that
First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, Mooney v. Holohan, 294 U.S. 103; Pyle v. Kansas, 317 U.S. 213; Curran v. Delaware, 259 F.2d 707. See New York ex rel. Whitman v. Wilson, 318 U.S. 688, and White v. Ragen, 324 U.S. 760. Compare Jones v. Commonwealth, 97 F.2d 335, 338, with In re Sawyer's Petition, 229 F.2d 805, 809. Cf. Mesarosh v. United States, 352 U.S. 1. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. Alcorta v. Texas, 355 U.S. 28; United States ex rel. Thompson v. Dye, 221 F.2d 763; United States ex rel. Almeida v. Baldi, 195 F.2d 815; United States ex rel. Montgomery v. Ragen, 86 F.Supp. 382. See generally annotation, 2 L. Ed. 2d 1575.
The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. As stated by the New York Court of Appeals in a case very similar to this one, People v. Savvides, 1 N.Y.2d 554, 557; 136 N.E.2d 853, 854-855; 154 N.Y.S.2d 885, 887:
Second, we do not believe that the fact that the jury was apprised of other grounds for believing that the witness Hamer may have had an interest in testifying against petitioner turned what was otherwise a tainted trial into a fair one. As Mr. Justice Schaefer, joined by Chief Justice Davis, rightly put it in his dissenting opinion below, 13 Ill.2d 566, 571, 150 N.E.2d 613, 616:
Had the jury been apprised of the true facts, however, it might well have concluded that Hamer had fabricated testimony in order to curry the favor of the very representative of the State who was prosecuting the case in which Hamer was testifying, for Hamer might have believed that such a representative was in a position to implement (as he ultimately attempted to do) any promise of consideration. That the Assistant State's Attorney himself thought it important to establish before the jury that no official source had promised Hamer consideration is made clear by his redirect examination, which was the last testimony of Hamer's heard by the jury:
We are therefore unable to agree with the Illinois Supreme Court that "there was no constitutional infirmity by virtue of the false statement."
Third, the State argues that we are not free to reach a factual conclusion different from that reached by the Illinois Supreme Court, and that we are bound by its determination that the false testimony could not in any reasonable likelihood have affected the judgment of the jury. The State relies on Hysler v. Florida, 315 U.S. 411. But in that case the Court held only that a state standard of specificity and substantiality in making allegations of federal constitutional deprivations would be respected, and this Court made its own "independent examination" of the allegations there to determine if they had in fact met the Florida standard. The duty of this Court to make its own independent examination of the record when federal constitutional deprivations are alleged is clear, resting, as it does, on our solemn responsibility for maintaining the Constitution inviolate. Martin v. Hunter's Lessee, 1 Wheat. 304; Cooper v. Aaron, 358 U.S. 1.
It is now so well settled that the Court was able to speak in Kern-Limerick, Inc., v. Scurlock, 347 U.S. 110, 121, of the "long course of judicial construction which establishes as a principle that the duty rests on this Court to decide for itself facts or constructions upon which federal constitutional issues rest."
"After Hamer was sentenced your petitioner [the Assistant State's Attorney] well knowing that identification of Poe, Napue and Webb if and when apprehended would be of an unsatisfactory character and not the kind of evidence upon which a jury could be asked to inflict a proper, severe penalty, and being unable to determine in advance whether Poe, Napue and Webb would make confessions of their participation in the crime, represented to Hamer that if he would be willing to cooperate with law enforcing officials upon the trial of [sic] trials of Poe, Napue and Webb when they were apprehended, that a recommendation for a reduction of his sentence would be made and, if possible, effectuated.
"Before testifying on behalf of the State and against Napue, Hamer expressed to your petitioner a reluctance to cooperate any further unless he were given definite assurance that a recommendation for reduction of his sentence would be made. Your petitioner, feeling that the interests of justice required Hamer's testimony, again assured Hamer that every possible effort would be made to conform to the promise previously made to him."
"Q. Did anybody give you a reward or promise you a reward for testifying?
"A. There ain't nobody promised me anything."
On redirect examination the Assistant State's Attorney again elicited the same false answer.
"Q. [by the Assistant State's Attorney] Have I promised you that I would recommend any reduction of sentence to anybody?
"A. You did not."
"Q. [on cross-examination] And didn't you tell him [one of Napue's attorneys] that you wouldn't testify in this case unless you got some consideration for it?
"A. . . . Yes, I did; I told him that.
"Q. What are you sentenced for?
"A. One Hundred and Ninety-Nine Years.
"Q. You hope to have that reduced, don't you?
"A. Well, if anybody would help me or do anything for me, why certainly I would.
"Q. Weren't you expecting that when you came here today?
"A. There haven't no one told me anything, no more than the lawyer. The lawyer come in and talked to me a while ago and said he was going to do what he could.
"Q. Which lawyer was that?
"A. I don't know; it was a Public Defender. I don't see him in here.
"Q. You mean he was from the Public Defender's office?
"A. I imagine that is where he was from, I don't know.
"Q. And he was the one who told you that?
"A. Yes, he told me he was trying to get something did for me.
"Q. . . . And he told you he was going to do something for you?
"A. He said he was going to try to.
"Q. And you told them [police officers] you would [testify at the trial of Napue] but you expected some consideration for it?
"A. I asked them was there any chance of me getting any. The man told me he didn't know, that he couldn't promise me anything.
"Q. Then you spoke to a lawyer today who said he would try to get your time cut?
"A. That was this Public Defender. I don't even know his name. . . ."
Mr. Justice Holmes, writing for the Court, recognized the principle over 35 years ago in Davis v. Wechsler, 263 U.S. 22, 24:
"If the Constitution and laws of the United States are to be enforced, this Court cannot accept as final the decision of a state tribunal as to what are the facts alleged to give rise to the right or to bar the assertion of it even upon local grounds."