Sometimes witnesses lie at trial and then later want to come clean. If this happens in your caser, a petition for habeas corpus can be presented to the trial court to ask the court to vacate the conviction.
Penal Code section 1473, subdivision (a), provides, "Every person unlawfully imprisoned or restrained of his or her liberty, under any pretense, may prosecute a writ of habeas
corpus to inquire into the cause of his or her imprisonment or restraint.
Subdivision (b) provides, "A writ of habeas corpus may be prosecuted for, but not limited to, the following reasons:
(1) False evidence that is substantially material or probative on
the issue of guilt or punishment was introduced against a person at a
hearing or trial relating to his or her incarceration.
(2) False physical evidence, believed by a person to be factual,
probative, or material on the issue of guilt, which was known by the
person at the time of entering a plea of guilty, which was a material
factor directly related to the plea of guilty by the person.
Subdivision (c), provides, "Any allegation that the prosecution knew or should have known of the false nature of the evidence referred to in subdivision (b) is immaterial to the prosecution of a writ of habeas corpus brought pursuant to subdivision (b).
Subdivision, (e) (1), defines "false evidence" to include opinions of experts that have either been repudiated by the expert who originally provided the opinion at a hearing or trial or that have been undermined by later scientific research or technological advances.
Thus, the first criteria a habeas petitioner must meet is to establish that he or she is in custody or in constructive custody. Actual custody means the petitioner is incarcerated. Constructive custody includes anyone on "on parole, probation, bail, or a sentenced prisoner released on his own recognizance pending hearing on the merits of his petition. The thrust of these cases is that a person is in custody constructively if he may later lose his liberty and be eventually incarcerated." (In re Wessley W. (1981) 125 Cal.App.3d at p. 246. )
Next, you will need the witness’s written declaration admitting the prior statement was false, or if it is an expert witness, that a prior opinion has been undermined by later scientific or technological advances. The falsity must be on a point which is substantially material or probative on the issue of guilt or punishment. A petitioner need only establish by a preponderance of the evidence that the evidence was false or perjured. (See, In re Malone (1996) 12 Cal.4th 935, 962;. In re Sassounian (1995) 9 Cal.4th 535, 546.) Once this is established, a conviction can be vacated by the court.
If you have a case where you believe false evidence was used to obtain a conviction and that a person will admit the prior testimony was false or the opinion is no longer valid, and the case is in the Los Angeles metro area, you can contact me and I can recommend an experienced criminal defense attorney to present a habeas petition to the trial court. Also, if you are a criminal defense trial lawyer and would like help preparing a habeas petition, you can contact me at esserlaw@gmail.com.
copyright © 2015 Christine Esser
The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.
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