Petitioner filed a motion for a new trial on the basis of newly
discovered evidence contending that the Government failed to
disclose an alleged promise of leniency made to its key witness in
return for his testimony. At a hearing on this motion, the
Assistant United States Attorney who presented the case to the
grand jury admitted that he promised the witness that he would not
be prosecuted if he testified before the grand jury and at trial.
The Assistant who tried the case was unaware of the promise.
Held: Neither the Assistant's lack of authority nor his
failure to inform his superiors and associates is controlling, and
the prosecution's duty to present all material evidence to the jury
was not fulfilled, and constitutes a violation of due process,
requiring a new trial. Pp.
405 U. S. 153-155.
Reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which all
Members joined except POWELL and REHNQUIST, JJ., who took no part
in the consideration or decision of the case.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
Petitioner was convicted of passing forged money orders, and
sentenced to five years' imprisonment. While appeal was pending in
the Court of Appeals, defense counsel discovered new evidence
indicating that the Government
Page 405 U. S. 151
had failed to disclose an alleged promise made to its key
witness that he would not be prosecuted if he testified for the
Government. We granted certiorari to determine whether the evidence
not disclosed was such as to require a new trial under the due
process criteria of
Napue v. Illinois, 360 U.
S. 264 (1959), and
Brady v. Maryland,
373 U. S. 83
(1963).
The controversy in this case centers around the testimony of
Robert Taliento, petitioner's alleged coconspirator in the offense
and the only witness linking petitioner with the crime. The
Government's evidence at trial showed that in June, 1966, officials
at the Manufacturers Hanover Trust Co. discovered that Taliento, as
teller at the bank, had cashed several forged money orders. Upon
questioning by FBI agents, he confessed supplying petitioner with
one of the bank's customer signature cards used by Giglio to forge
$2,300 in money orders; Taliento then processed these money orders
through the regular channels of the bank. Taliento related this
story to the grand jury, and petitioner was indicted; thereafter,
he was named as a coconspirator with petitioner, but was not
indicted.
Trial commenced two years after indictment. Taliento testified,
identifying petitioner as the instigator of the scheme. Defense
counsel vigorously cross-examined, seeking to discredit his
testimony by revealing possible agreements or arrangements for
prosecutorial leniency:
"[Counsel.] Did anybody tell you at any time that, if you
implicated somebody else in this case, that you yourself would not
be prosecuted?"
"[Taliento.] Nobody told me I wouldn't be prosecuted."
"Q. They told you you might not be prosecuted?"
"A. I believe I still could be prosecuted."
"
* * * *
Page 405 U. S.
152
"
"Q. Were you ever arrested in this case or charged with anything
in connection with these money orders that you testified to?"
"A. Not at that particular time."
"Q. To this date, have you been charged with any crime?"
"A. Not that I know of, unless they are still going to
prosecute."
In summation, the Government attorney stated, "[Taliento]
received no promises that he would not be indicted."
The issue now before the Court arose on petitioner's motion for
new trial based on newly discovered evidence. An affidavit filed by
the Government as part of its opposition to a new trial confirms
petitioner's claim that a promise was made to Taliento by one
assistant, DiPaola, [
Footnote
1] that, if he testified before the grand jury and at trial, he
would not be prosecuted. [
Footnote
2] DiPaola presented the Government's case to the grand jury,
but did not try the case in the District Court, and Golden, the
assistant who took over the case for trial, filed an affidavit
stating that DiPaola assured him before the trial that no promises
of immunity had been made to Taliento. [
Footnote 3] The United
Page 405 U. S. 153
States Attorney, Hoey, filed an affidavit stating that he had
personally consulted with Taliento and his attorney shortly before
trial to emphasize that Taliento would definitely be prosecuted if
he did not testify and that, if he did testify, he would be obliged
to rely on the "good judgment and conscience of the Government" as
to whether he would be prosecuted. [
Footnote 4]
The District Court did not undertake to resolve the apparent
conflict between the two Assistant United States Attorneys, DiPaola
and Golden, but proceeded on the theory that, even if a promise had
been made by DiPaola, it was not authorized, and its disclosure to
the jury would not have affected its verdict. We need not concern
ourselves with the differing versions of the events as described by
the two assistants in their affidavits. The heart of the matter is
that one Assistant United States Attorney -- the first one who
dealt with Taliento -- now states that he promised Taliento that he
would not be prosecuted if he cooperated with the Government.
As long ago as
Mooney v. Holohan, 294 U.
S. 103,
294 U. S. 112
(1935), this Court made clear that deliberate deception of a court
and jurors by the presentation of known false evidence is
incompatible with "rudimentary demands of justice." This was
reaffirmed in
Pyle v. Kansas, 317 U.
S. 213 (1942). In
Napue v. Illinois,
360 U. S. 264
(1959), we said, "[t]he same result obtains when the State,
although not soliciting false evidence, allows it to go uncorrected
when it appears."
Id. at
360 U. S. 269.
Thereafter,
Brady v. Maryland, 373 U.S. at
373 U. S. 87,
held that suppression of material evidence justifies a new trial
"irrespective of the good faith or bad faith of the prosecution."
See American
Page 405 U. S. 154
Bar Association, Project on Standards for Criminal Justice,
Prosecution Function and the Defense Function § 3.11(a). When the
"reliability of a given witness may well be determinative of guilt
or innocence," nondisclosure of evidence affecting credibility
falls within this general rule.
Napue, supra, at
360 U. S. 269.
We do not, however, automatically require a new trial whenever
"a combing of the prosecutors' files after the trial has
disclosed evidence possibly useful to the defense but not likely to
have changed the verdict. . . ."
United States v. Keogh, 391 F.2d 138, 148 (CA2 1968). A
finding of materiality of the evidence is required under
Brady,
supra, at
373 U. S. 87. A
new trial is required if "the false testimony could . . . in any
reasonable likelihood have affected the judgment of the jury. . .
."
Napue, supra, at
360 U. S.
271.
In the circumstances shown by this record, neither DiPaola's
authority nor his failure to inform his superiors or his associates
is controlling. Moreover, whether the nondisclosure was a result of
negligence or design, it is the responsibility of the prosecutor.
The prosecutor's office is an entity and as such it is the
spokesman for the Government. A promise made by one attorney must
be attributed, for these purposes, to the Government.
See
Restatement (Second) of Agency § 272.
See also American
Bar Association, Project on Standards for Criminal Justice,
Discovery and Procedure Before Trial § 2.1(d). To the extent this
places a burden on the large prosecution offices, procedures and
regulations can be established to carry that burden and to insure
communication of all relevant information on each case to every
lawyer who deals with it.
Here, the Government's case depended almost entirely on
Taliento's testimony; without it, there could have been no
indictment and no evidence to carry the case to the jury.
Taliento's credibility as a witness was therefore
Page 405 U. S. 155
an important issue in the case, and evidence of any
understanding or agreement as to a future prosecution would be
relevant to his credibility and he jury was entitled to know of
it.
For these reasons, the due process requirements enunciated in
Napue and the other cases cited earlier require a new
trial, and the judgment of conviction is therefore reversed, and
the case is remanded for further proceedings consistent with this
opinion.
Reversed and remanded.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the
consideration or decision of this case.
[
Footnote 1]
During oral argument in this Court, it was stated that DiPaola
was on the staff of the United States Attorney when he made the
affidavit in 1969, and remained on that staff until recently.
[
Footnote 2]
DiPaola's affidavit reads, in part, as follows:
"It was agreed that, if ROBERT EDWARD TALIENTO would testify
before the Grand Jury as a witness for the Government, . . . he
would not be . . . indicted. . . . It was further agreed and
understood that he, ROBERT EDWARD TALIENTO, would sign a Waiver of
Immunity from prosecution before the Grand Jury, and that, if he
eventually testified as a witness for the Government at the trial
of the defendant, JOHN GIGLIO, he would not be prosecuted."
[
Footnote 3]
Golden's affidavit reads, in part, as follows:
"Mr. DiPaola . . . advised that Mr. Taliento had not been
granted immunity, but that he had not indicted him because Robert
Taliento was very young at the time of the alleged occurrence, and
obviously had been overreached by the defendant Giglio."
[
Footnote 4]
The Hoey affidavit, standing alone, contains at least an
implication that the Government would reward the cooperation of the
witness, and hence tends to confirm, rather than refute, the
existence of some understanding for leniency.