Prosecutorial Misconduct With No Consequences

In United States v. Spivak, 08-6091-cr (2d Cir. March 18, 2010), the defendant was convicted of two counts of distribution and five counts of possession of child pornography.  On appeal, Spivak argued that the government allowed one of its witnesses to testify falsely and made improper comments during summation.

With respect to the witnesses testimony, the Court reiterated that “ prosecutor has a fundamental obligation to ensure that the testimony he elicits is true.”  Citing, Shih Wei Su v. Filion, 335 F.3d 119, 126-27 (2d Cir. 2003).  As such,“allowing the government’s witness to testify falsely in a material way, albeit unknowingly, constituted severe misconduct,” and “eliciting false testimony that Spivack was a pedophile was outrageous.”  Despite that conclusion, the Court found no prejudice – citing the severity of the misconduct, the curative measure taken, and the strength of the government’s case.

The Court was also concerned with the government’s references to Lolita during closing arguments, calling the “problematic” because there was no rational explanation for them “other than to inflame the jury.”  Citing United States v. Modica, 663 F.2d 1173 (2d Cir. 1981).  However, the Court went on to find the comments, “although regrettable” were not “sufficiently egregious to amount to a denial of Spivack’s due process rights.”