By Clinton Morgan
Assistant District Attorney in Harris County
“False testimony” claims fascinate me. On the one hand, it definitely sounds bad to have false testimony, and it’s something all prosecutors want to avoid. On the other, nearly every trial will have testimony that is in some sense false. If the parties present two (or more) versions of events, some of that testimony has to be false.
Much of it will be benign and is a function of ordinary people being ordinary. An honest witness might testify something happened at “11 o’clock,” but it really happened at 11:08. Sometimes discrepancies like that will be immaterial, but sometimes they might decide a case.
The legal question behind false testimony claims is what kind of false testimony entitles a convicted defendant to relief. Appellate courts have gotten involved and done what appellate courts do best: They divide claims into categories and make legal standards. How do we determine if testimony is “false?” How do we determine if the falsehood was material to the case? We’ve got standards for that.
The Court of Criminal Appeals’s most recent false evidence case, Ukwuachu v. State,[1] added a wrinkle to the false evidence caselaw I wasn’t expecting: How do we determine if something is evidence? In Ukwuachu, a prosecutor asked a question on cross-examination that may or may not have contained false information. On its way to holding that Ukwuachu failed to prove his false evidence claim, the court shows all the ways to make or defend false evidence claims.
Where was Tagive?
Sam Ukwuachu was charged with sexual assault. He picked up a classmate, Krystal, around 2 o’clock a.m. and took her back to an apartment he shared with a roommate, Tagive. Krystal testified they went into Ukwuachu’s bedroom, and Ukwuachu forcibly raped her. She testified that she screamed “No!” and “Stop!” loudly enough that anyone else in the apartment would have heard her.
Ukwuachu’s defense was that the sex was consensual. The defense presented testimony from Tagive that he was at the apartment and did not hear screams or sounds of a struggle.
Before Tagive testified, the prosecutor announced that just that morning the State received Tagive’s cell phone records. The State’s expert believed the records contradicted Tagive’s grand jury testimony and showed that he was not at the apartment at the relevant times.
The trial court excluded the phone records because the State had not followed the procedure to admit them as business records. But the court said the State could ask Tagive “if he was making phone calls” on the night of the offense.
Tagive’s friend, Reed, testified she picked Tagive up from a party at 12:30 a.m., then dropped him off at the apartment. Tagive testified he went to bed between 1 and 1:30, and sometime after that he heard a female voice in the living area, but he never heard screaming or a struggle.
Without objection, the prosecutor cross-examined Reed and Tagive by referencing the phone records. The prosecutor asked Reed questions about why Tagive was still calling her after 1 o’clock if she had dropped him off. The prosecutor said her answer—which generally stood by her testimony on direct—“didn’t match the facts.” The prosecutor asked Tagive, “You know your phone records show you were across town at 1 o’clock in the morning and you were making calls to [Reed] at 1 o’clock in the morning?” Tagive replied, “Yes, sir.”
What time was it in Waco?
After he was convicted, Ukwuachu filed a motion for new trial alleging, among other things, the State’s use of the phone records on cross “created a false image to the jury.” The motion included affidavits suggesting the time zone in the phone records could be off by six hours, not five hours as the parties had calculated at trial. An affidavit also described the difficulty of interpreting locations from phone records, though it did not say the State’s interpretation at trial was wrong. Importantly, though, the motion did not include the actual phone records. The trial court denied the motion without comment.
On appeal, Ukwuachu described the State’s use of the phone records as “false testimony” and claimed it violated his right to due process. The Tenth Court of Appeals reversed.[2] In a short, unpublished opinion, that court held that “the State’s repeated references to what the cell phone records showed, including the location and time of calls made, without their admission into evidence created a false impression with the jury.” According to the Tenth Court, the State had “referenc[ed]” the records in a way “that indicated that the records definitively showed [Tagive’s] location at certain critical times when they did not.”
What is false testimony?
The State Prosecuting Attorney petitioned for discretionary review. The ground for review succinctly captured some of the problems with the Tenth Court’s opinion: “Can you have a ‘false testimony’ claim without testimony or falsity?”
The Court of Criminal Appeals granted review and held: No, you cannot. Judge Slaughter wrote the opinion for a five-judge majority. Presiding Judge Keller and Judges Hervey, Newell, and Walker concurred without opinion.
The opinion contains a good summary of the Court of Criminal Appeals’s false-testimony cases. The general rule is that the use of material false testimony to procure a conviction violates a defendant’s due process rights. The rest of the opinion focused on what is “false” and what is “testimony.”
Testimony is “false” if it gives the jury a false impression. For instance, in Ex parte Ghahremani,[3] the State presented evidence showing that after being sexually assaulted by the defendant, the complainant had a mental breakdown. The State’s evidence omitted that the complainant had been abusing drugs and had been assaulted by others in the meantime. Even though no one explicitly lied, the State’s evidence created the false impression that Ghahremani’s assault was the sole cause of the breakdown.
To prove testimony was false, the defendant must produce a record “contain[ing] some credible evidence that clearly undermines the evidence adduced at trial.”[4] In Ghahremani, that evidence was police reports detailing the intervening assaults and drug use. In Ex parte Chavez,[5] another individual’s confession to the offense supported a claim that a witness’s identification of Chavez as the shooter was false testimony.[6] The Court emphasized that to justify a finding of false testimony, the evidence of falsity must be “definitive or highly persuasive.”
The Court used Gharhemani and Chavez to illustrate that while older cases sometimes refer to false testimony claims as “perjured testimony” claims, there is no requirement that the testimony be criminally perjurious. That is because a due process claim of false testimony is aimed not at punishing perjury but at ensuring defendants are convicted and sentenced on truthful testimony.
Turning back to Ukwuachu’s case, the Court noted that unlike other cases in this area, Ukwuachu did not even complain about testimony; all he complained about were the prosecutor’s questions. As everyone who has ever heard a trial judge conduct voir dire knows: Statements and questions from the attorneys are not evidence. The Court noted that cross-examination questions containing incorrect information are “perhaps suggestive of some other type of complaint,” but the appellant had not objected to the questions in the trial court so the matter presented nothing for review.
The Court noted that a proper false testimony complaint would have focused on the actual testimony, but nothing in the record showed that Tagive or Reed gave the jury a false impression about anything. The only claim of falsity was what the prosecutor had said.
The final nail in the coffin was that the evidence on appeal was insufficient even to determine falsity. The phone records were not in the record, and the affidavit evidence “merely call[ed] into question the State’s reliance on the cell phone records.” The affidavit did not identify “actual inconsistencies” between the records and the testimony. And while the affidavit said it was hard to use phone records to establish location, it did not say the State was wrong about Tagive’s location.
After concluding that the thing Ukwuachu complained of wasn’t “testimony,” and Ukwuachu had failed to show it was false, the Court reversed the Tenth Court because it “erred by applying false-evidence principles” to this case.
Takeaways
False testimony claims are a booming area of litigation. Since Ex parte Chabot[7] came out 11 years ago, recognizing that a defendant could make a due process claim even if the State did not know it was using false testimony,[8] the Court of Criminal Appeals has handed down at least seven published opinions on the subject. There’s no telling how many times the Court has addressed it in writs without opinions.
Part of the reason is that such claims don’t require contemporaneous objection. A false evidence claim is something you prove up after the trial, either in a motion for new trial or on a writ, making them powerful tools to correct injustice the parties were not aware of at the time—but it also means the caselaw in this area must be circumscribed to keep defendants from using the “false testimony” label to get review of routine, unpreserved trial errors. Though the Court did not explicitly say it, it’s clear that Ukwuachu’s claim should have been raised as a “facts not in evidence” objection when the questions were asked.
Ukwuachu serves as a good primer for defense lawyers making false testimony claims and for prosecutors defending convictions. A false testimony claim is not a cure-all for everything the State says that the defense doesn’t like. Did the State make an improper argument? There’s an entire other area of law for that. But false testimony claims, as the name implies, are reserved for claims that testimony is provably false.
Endnotes
[1] ___ S.W.3d ___, No. PD-0776-19, 2020 WL 6750464 (Tex. Crim. App. November 18, 2020).
[2] Ukwuachu v. State, No. 10-15-00376-CR, 2019 WL 3047342 (Tex. App.—Waco July 10, 2019). This was the Tenth Court’s second opinion in the case. It reversed the conviction in 2017 based on the trial court’s decision to exclude some text messages, but that decision was reversed in an unpublished opinion from the Court of Criminal Appeals in 2018. See Ukwuachu v. State, No. PD-PD–0366–17, 2018 WL 2711167 (Tex. Crim. App. June 6, 2018). Because Ukwuachu still has some unresolved points of error, the Tenth Court will get a third try at this case on remand.
[3] 332 S.W.3d 470 (Tex. Crim. App. 2011).
[4] Ukuawachu, 2020 WL 6750464 at * 6.
[5] 371 S.W.3d 200, 208 (Tex. Crim. App. 2012).
[6] The Court in Chavez ultimately concluded that this false testimony was not material
[7] 300 S.W.3d 768, 771 (Tex. Crim. App. 2009).
[8] The concurring and dissenting opinions in Chavez explored the import of the State’s knowledge that the testimony was false.