[I]f you charged [a woman who gave one story on the night of the offense and a different one on the stand] with both [filing a false police report and perjury], then wouldn't you be charging her with a crime you know she did not commit? I mean if she is guilty of one or the other then that means that she is innocent of the other? Is that not prosecutorial misconduct to charge someone with a crime you know that was not committed?I think that's an interesting question and I'm going to expand it even further to ask if this is a violation of legal ethics.
Let's start with if this by defining, as best possible, prosecutorial misconduct. Prosecutorial misconduct is some sort of purposeful or reckless disregard of the law or the judge's rulings in a case. This can involve not disclosing exculpatory evidence or lying to a judge or mentioning a defendant's refusal to testify during closing argument (among many other things). It's a throwaway claim that seems to make it into most capital appeals - and get summarily dismissed by the courts. It's more effective use is in double jeopardy cases wherein a mistrial has been declared because of a prosecutor's act. For instance, I'm caught up in the passion of a closing argument and I turn around and point at the defendant, "If John Smith was innocent, we all know he'd have testified today!" That's clearly unconstitutional and after the judge declared a mistrial defense counsel would have a field day stomping any subsequent charge I was to file because the mistrial was my fault.
The ethics of this would be found in Virginia under Rule 3.8(a) (I'm sure other States have similar rules):
A lawyer engaged in a prosecutorial function shall:So, the ethical standard is not whether a prosecutor can get a conviction, it's whether there is probable cause. Probable cause is
(a) not file or maintain a charge that the prosecutor knows is not supported by probable cause;
1 : a reasonable ground in fact and circumstance for a belief in the existence of certain circumstances (as that an offense has been or is being committed, that a person is guilty of an offense, that a particular search will uncover contraband, that an item to be seized is in a particular place, or that a specific fact or cause of action exists)The way I have explained this to juries is "[P]robable cause is less than probable, which is kind of a weird way to put it. The way that I like to think of it is there is probably a cause, probably a reason to file the charge." Or, as a judge I used to practice in front of put it, "I don't know exactly what probable cause is, but I could trip over it in the dark."
So now we've set the parameters. By filing the two charges would I be violating any laws? None that I'm aware of. There's a due process argument, but I don't think it's a strong one. That argument would be, "if she's guilty of one she is innocent of the other and therefore cannot be tried for both." However, this is not true. The two charges require separate elements to be proven. One requires proof that a lie occurred in the report to the officer. The other requires that a material fact be lied about under oath. In fact, if she told the officer X and testified in court Y, but I can prove the truth to be Z, I can convict her of both charges. With all this in mind, I think I'm safely outside the prosecutorial misconduct zone.
The question then becomes one of ethics. This is a more interesting question. Is it ethical to prosecute two charges when I think the facts of the case require that a conviction of one will preclude a conviction in the other? Yes, it is. Remember, the standard is whether the charge is sustained by probable cause. Is there a reasonable ground in fact and circumstance to believe perjury has occurred? You bet. She reported an entirely different story to the police previously. Is there reasonable ground in fact and circumstance to believe a false report was filed? Sure, considering the statements she made to the prosecutor out in the hall.
So, it would be neither misconduct nor unethical to go forward with these charges. Do I think she should be convicted of both? No; considering the facts in this particular case it would not be just to convict her of both charges. I'd even be amenable to a jury instruction telling the jury that they have 3 choices: perjury, false report, or not guilty.
This sort of thing happens more often than you'd think. There are a couple of examples which spring into mind. In Virginia it is, by statute, illegal to convict a person of both general reckless driving and DUI. Defendants are often charged with both; the judge/jury just can't convict them of both. As well, it's almost universal to give manslaughter instructions in murder cases. Murder requires intent to kill or knowledge that killing is likely (the theory behind felony murder and depraved indifference murder). Manslaughter requires either heat of passion (voluntary) or gross negligence / failure to perform a legal duty (involuntary). They both have exclusive elements not found in the other charge, yet they are offered in the alternative. I'm sure the collected minds out there reading this can think of any number of other situations wherein this happens under the law.
Now, let's look at the reality of what's going to happen here. The lady is probably going to plea down to the misdemeanor and I'm not likely to force the issue. The only time I'd really push the issue is if I looked at her record and she had a history of this sort of thing. Everyone who has worked in a domestic courtroom has seen the woman who brings charges against her man 3-4 times a year and wants to drop charges each and every time she comes to court. I'm not predisposed to be sympathetic to her the way I might be to other women who have been thrown under the bus by their men. However, most of the defendants in this sort of situation aren't going to be that woman, so they'll get a break (pleading to a misdemeanor instead of going forward on the technically stronger felony perjury) and most likely get a fine and probation from the judge.