Rob Warden provides a must-read opinion on recantations

If you have ever wondered why courts often believe original witness testimony over a recantation and thereby deny a new trial, read Rob Warden’s insightful opinion piece on recantations published in the Chicago Sun-Times (here).

Not only does Warden explain why Illinois courts have often sided with original testimony, but he also provides ample evidence that this common confidence in an original statement has been upended by numerous cases in which the recantation proved to be the truth.

Warden, Executive Director of the Center on Wrongful Convictions at Northwestern Law, provides the foundation for erroneous confidence in original testimony, at least in Illinois. An Illinois Supreme Court decision eighty-two years ago included this statement: “Recanting testimony is regarded as very unreliable, and a court will usually deny a new trial based on that ground where it is not satisfied that such testimony is true.”

Warden points out that the exoneration of Gary Dotson—often referenced as the first DNA-proven exoneration—could have been expedited by four years if Illinois courts had believed the recantation of Dotson’s accuser.

Citing data from the National Registry of Exonerations, he notes, “Since the Dotson case, recantations in 26 other Illinois cases similarly have proved true — often more belatedly than in the Dotson case…The longest delay occurred in the Ford Heights Four case, in which authorities ignored the key accuser’s recantation for 18 years — from June 1978 until DNA proved it truthful in June 1996.”

Warden writes that the Illinois Supreme Court now has two cases before it that provide opportunity to correct now-debunked confidence in original testimony over recantation, but even more important, to remind judges that whether the recantation is the truth or not, is not even the question before them. (Again, read Warden’s opinion piece.)

The National Registry of Exonerations has issued preliminary findings on an ongoing study of recantations (here) that should dispel the myth of the sanctity of original testimony everywhere.

This report indicates that “25% of exonerations include recantations by prosecution witnesses or victims; 82% of these recantations occur in murder and child sex abuse cases. In murder cases, the recanters are usually ‘eyewitnesses’ who were pressured by law enforcement to give false testimony. In child sex abuse cases, most are ‘victims’ who were pressured by family members or child welfare investigators to accuse the defendants of crimes that never happened.”

I believe that logic also defies the myth that original testimony should always be considered more reliable than a recantation…and supports the notion that when a significant witness recants, the courts should take seriously the question of whether or not the recantation undermines confidence in the verdict.

Here’s my logic: In which situation is a person more incentivized to lie? The original testimony or when recanting?

Many circumstances prompt a suspect, inmate, or person in a compromised position to lie. In cases in which a recantation has turned out to be the truth, the witness often had a compelling reason for the original lie.

Perhaps the crime never happened but the “victim” lied as a cover-up for personal behavior that might cause shame, embarrassment, or sanctions, as in the Dotson and other similar cases. Perhaps false testimony came from a person who was originally a suspect in the crime, but deflected arrest or achieved a lesser charge and sentence by fingering another. Perhaps an inmate capitalized on an opportunity to win consideration in exchange for providing testimony that helped make a case.

The incentives to recant are often less apparent. Recanting requires publicly admitting that you were either mistaken or you lied and perjured yourself. This could invite criminal charges or a civil law suit.

While it is not always clear why a witness recants, many who recant say that they have been motivated by conscience or a desire to set the record straight, to right a wrong that has been very costly to another, or to finally restore truth.

These, of course, are also worthy motivations for our courts.