Wrongful Convictions and Proof Beyond a Reasonable Doubt

Montgomery v. Commonwealth (Va. Ct. App. Dec. 20, 2013) sets aside a man’s rape conviction, because the supposed victim had come forward (several years after the conviction) to say she made up the story and her admission led her to be convicted of perjury. An excerpt:

In October of 2007, Elizabeth P. Coast, then seventeen, reported that when she was ten years old a neighborhood boy named “Jon” sexually assaulted her while the two were alone in her grandmother’s backyard…. Coast identified Montgomery in a photo lineup using his Hampton High School yearbook photo….

On June 23, 2008, … [the trial court] tried and convicted Montgomery in a one-day bench trial for the assault of Coast. Coast testified under oath that Montgomery had sexually assaulted her in 2000. She described the alleged assault in graphic detail. She said that she did not tell anyone what happened at the time of the assault because she thought her parents “would get mad” and she was “really embarrassed.” She explained that she decided to come forward seven years later because she thought she saw Montgomery at Wal-Mart….

Besides Coast, no other witnesses to the incident testified at Montgomery’s trial. Neither was any corroborating physical evidence that an assault occurred ever presented. The trial judge categorized this case as a “word against word situation.” In reaching his verdict, the trial judge concluded that Coast was more credible then Montgomery because she had “no motive whatsoever” to lie. The trial court then found Montgomery guilty of forcible sodomy, aggravated sexual battery, and object sexual penetration. On April 10, 2009, the trial judge sentenced Montgomery to 45 years in prison, with 37 years and 6 months suspended….

On November 1, 2012, Coast voluntarily made a videotaped statement at the Hampton Police Department. After consulting with counsel and receiving Miranda warnings, Coast recounted how she had falsely testified that Montgomery had assaulted her.

Coast explained that immediately before she accused Montgomery, her mother caught her looking at “sex stories” on the Internet. Out of fear of her mother, Coast said that she was looking at inappropriate material because she had been molested when she was ten years old. After she reluctantly named Montgomery as her attacker, the lie snowballed. Coast felt like she could not admit that the assault never happened…. On November 9, 2012, Coast was arrested for perjury and [later convicted].

The court quotes past court decisions saying that, “recantation evidence is generally questionable in character and is widely viewed by the courts with suspicion because of the obvious opportunities and temptations for fraud,” and that “[s]uch skepticism increases with the passage of time…. [M]emories may have faded, witnesses may have disappeared or become incapable of testifying, physical evidence may be unrecoverable and the recanting witness may have had ample time to acquire an extraneous motive to falsify his original testimony.” Nonetheless, here the perjury conviction makes the recantation especially credible:

[T]he entry of Coast’s guilty plea serves as a judicial admission that her original testimony at Montgomery’s trial was false and the verdict of the circuit court based upon that plea establishes that falsity beyond a reasonable doubt. Although a perjury conviction is not required to meet petitioner’s burden of proving the recantation is true, it establishes with legal certainty that her trial testimony is false. Moreover, … there is no evidence in the record that rebuts Coast’s recantation by corroborating her trial testimony. Further, there are no facts suggesting that her unprompted recantation was in any way pressured, coerced, or is otherwise unreliable.

One might add that, once the state takes the view that Coast is guilty of perjury — by accusing Montgomery of a crime he didn’t commit — it’s hard to see how the state can justify keeping Montgomery for that supposed crime. (The state indeed stated that the conviction should be overturned, once Coast was found guilty of perjury.)

In any event, that’s what happened on appeal. But I wanted to focus a bit more on what happened at trial, and what (if anything) this might tell us about the proof beyond a reasonable doubt standard. Here’s what the trial judge said, according to the state’s supplemental answer:

I have tried many of these cases and most of them generally involve family whereas the alleged victim has a motive sometimes to falsify their testimony. That is where you have a stepbrother or a stepfather, at some point they are afraid to tell their mother or close relatives, ex cetera [sic]. But I have to look at this case today. What did the alleged victim at this point, in this case Elizabeth Coast, have to gain by coming in here six years later and saying to the Court that this man did the acts that he’s been charged with? I see no motive whatsoever.

She at the time was 10 years old and too many times I’ve heard over and over, even in cases of admission, where the child-I was afraid. I didn’t want to tell. I was scared. I was embarrassed. I was afraid of what would happen to me if I reported this.

Mr. Montgomery, at this point in his life, may be the nicest person you ever want to meet. But sometimes at younger ages, and even old, we do stupid things that wasn’t intended at the time and that’s what I think happened in this case.

I think the defendant is guilty and I find him guilty as charged.

So here we had a case where there were no other witnesses, no “corroborating physical evidence,” a “word against word situation,” yet the judge concluded that Montgomery was guilty beyond a reasonable doubt because the judge saw “no motive whatsoever” for Coast to lie (though it turns out that Coast indeed had such a motive). And indeed I suspect this is very common, and not just in sexual assault cases. Sometimes this involves a dispute about consent, whether related to sex or the taking of property. Sometimes this involves a dispute about who a robber or a thief was, when a solo eyewitness testifies, and there’s no DNA or fingerprint evidence, or recovered stolen property. And very often this involves a police officer saying that he discovered the defendant in possession of drugs or a gun, and the defendant claims the evidence was planted.

My sense is that in such cases convictions are fairly common (though not universal), especially when there’s no obvious motive for the witness to lie, but sometimes even when there is. Yet it seems to me that the risk of people lying for an undisclosed reason is omnipresent, even when they at first appear to have nothing to gain. It may not be a vast risk, but neither is it negligible.

What’s doing the work in many of the convictions, I suspect, is that the very ubiquity of the risk makes factfinders realize that — if we were to constantly consider this generalized risk, in the absence of more specific information — a wide range of crimes couldn’t be effectively prosecuted. That’s especially true of child molestation and rape, but it’s also true of many sorts of felons’ possession of guns, robberies, and the like. It’s always possible, and not extremely unlikely, that a police officer was just trying to frame someone he already thought was a bad guy.

It’s always possible that an eyewitness was mistaken, even if he sounds completely confident (to shift for a moment from deliberate falsification to honest error). Indeed, he may even be overstating his confidence, deliberately or subconsciously, because he feels the need to find someone to punish or because he told the police he recognized the defendant and now doesn’t want to look like a flake to them. And even if the defendant testifies, and we sense from his demeanor (or even some inconsistencies in the story) that he is lying — and he obviously has a strong motive to lie — it seems to me hard to deny that there’s likely some reasonable probability that he’s actually telling the truth.

But I think many people (again, deliberately or subconsciously) are unwilling to see acquittals in all such cases. A seemingly disinterested supposed victim’s testimony thus tends to be credited (unless the victim seems untrustworthy for other reasons, such as the victim’s own past criminal record). A police officer’s testimony tends to be credited, at least by many jurors. And this is so even though there is good reason for doubt, simply because whenever we are dealing with human testimony there is good reason for doubt.

So if I’m right about this — and I acknowledge that this is highly speculative on my part — the “beyond a reasonable doubt” standard ends up being, in many cases, considerably less defendant-protective than one might think. Maybe that’s bad, or maybe it’s a necessary evil, but it seems to me that this is likely happening.

What the consequences of this are, I’m not sure. Should we, for instance, be more open to broader surveillance, such as requirements that police officers constantly have cameras on monitoring their interactions with citizens, or that there be many more cameras in public places? Should we be more open to lie detection technology, at least if it has some reasonable accuracy, even if the accuracy is highly imperfect? Should we be more wary of allegations that some defense counsel “put the victim on trial,” or that some legal rules facilitate that? Should we be more skeptical of “rape shield” statutes that limit the introduction of evidence about the alleged victim’s past sexual history, when the history has some reasonable tendency to make the defendant’s story more credible (even if the tendency is far from certainty)?

Should we spend more money on public defenders and investigators hired by public defenders, so they can spend more time ferreting out possible sources of bias and other evidentiary error? Should we be more open to reconsidering convictions when evidence surfaces after trial? Should we be in particular much more open to reconsidering convictions following a supposed victim’s recantation?

I haven’t focused on these issues enough to have a truly informed opinion. But I thought I’d pass along this particular incident, and raise the possibility that the “beyond a reasonable doubt” standard may be substantially affected by people’s tendency to feel that even cases focused on swearing matches (whether between alleged sexual assault victims and defendants or between police officers and defendants) should often yield criminal convictions.