             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. WR-78,989-01



                   Ex parte STEVEN MARK WEINSTEIN, Applicant

              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             IN CAUSE NO. 1167730-A IN THE 339 TH DISTRICT COURT
                             OF HARRIS COUNTY

                K ELLER, P.J., filed a concurring opinion in which P RICE, J., joined.

       We filed and set this case to determine whether the State’s unknowing use of false testimony

calls for the same standard of materiality as the State’s knowing use of false testimony. The Court

appears to sidestep this issue, but to the extent the Court’s opinion can be construed as weighing in

on the issue, it comes to the wrong conclusion.

       The Court says that the standard of materiality for the State’s use of false testimony is “a

reasonable likelihood that it affected the judgment of the jury” and, in some parts of its materiality

discussion, it cites to Giglio v. United States1 and to Ex parte Fierro.2 Giglio appears to have used




       1
           405 U.S. 150 (1972).
       2
           934 S.W.2d 370 (Tex. Crim. App. 1996).
                                                            WEINSTEIN CONCURRENCE — 2

the Napue3 standard on the ground that a deliberate deception occurred in that case.4 Fierro involved

the knowing use of false testimony and employed the Napue standard of materiality, though it also

employed a more onerous harm standard because the claim, presented for the first time on habeas,

could have been presented at trial and on direct appeal.5 The Supreme Court, which has framed the

Napue standard as “any reasonable likelihood that the false testimony could have affected the jury’s

verdict,” has held that the standard is essentially the same as the Chapman6 harmless error test for

constitutional errors on direct appeal.7 The Chapman standard has been framed as “whether there

is a reasonable possibility that the evidence complained of might have contributed to the conviction,”

or whether a court is convinced “beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.”8 The Napue/Chapman standard is the standard of materiality that

applies to claims involving the State’s knowing use of false testimony.9

       The Court does not dispute the habeas trial court’s conclusion that today’s case involves the

State’s unknowing use of false testimony. It is unclear to me whether the Court’s use of the

“reasonable likelihood” language (and citations to Giglio and Fierro) is intended to signify the use

of Napue/Chapman standard or whether the Court’s omission of the word “any” from the standard

       3
           Napue v. Illinois, 360 U.S. 264 (1959).
       4
          Giglio, 405 U.S. at 153-54. See also Smith v. Phillips, 455 U.S. 209, 220 n.10 (1982)
(citing Giglio and Napue as applying in cases of “egregious prosecutorial misconduct”).
       5
           934 S.W.2d at 372, 374-75 & n.10.
       6
           Chapman v. California, 386 U.S. 18 (1967).
       7
           United States v. Bagley, 473 U.S. 667, 679 n.9 (1985) (emphasis added).
       8
           Id.
       9
           Id.
                                                            WEINSTEIN CONCURRENCE — 3

is intended to signify that a different, less-favorable-to-the-defendant standard is being employed.

I write separately to emphasize that the standard of materiality for the State’s unknowing use of false

evidence (a claim not recognized by the Supreme Court) should be higher than the standard

employed by the Supreme Court for the State’s knowing use of false evidence.

                   A. There are good reasons for having different standards
                      for the knowing versus unknowing use of false evidence.

       There are three good reasons for imposing a higher standard of materiality for unknowing

use than for knowing use: (1) state action, (2) finality, and (3) the analytical nature of the claims.

First, I address state action. The United States Constitution’s requirement of due process that is

applicable to the States is found in the Fourteenth Amendment.10 A necessary component of any

Fourteenth Amendment due-process claim is “state action.”11 Even the most outrageous behavior

by a private citizen will not by itself establish “state action” for due-process purposes.12 When the

prosecution knowingly uses false testimony, state action is self-evident.13 Even when a witness is

not a member of the prosecution team, state action is arguably present if the witness is a state-



       10
          U.S. CONST . Amend. 14, § 1 (“nor shall any State deprive any person of life, liberty, or
property, without due process of law.”).
       11
            See id.; United States v. Morrison, 529 U.S. 598, 621 (2000) (“[T]he Fourteenth
Amendment, by its very terms, prohibits only state action. The principle has become firmly
embedded in our constitutional law that the action inhibited by the first section of the Fourteenth
Amendment is only such action as may fairly be said to be that of the States. That Amendment erects
no shield against merely private conduct, however discriminatory or wrongful.”) (internal quotation
marks omitted); Colorado v. Connelly, 479 U.S. 147, 165 (1986).
       12
            Connelly, 479 U.S. at 166. See also Morrison, 529 U.S. at 621.
       13
           See Case v. Hatch, 133 N.M. 20, 24, 183 P.3d 905, 909 (2008) (“The knowing
prosecutorial use of perjured testimony clearly implicates the necessary state action for a violation
of due process.”).
                                                                WEINSTEIN CONCURRENCE — 4

government employee testifying as such.14 But when the witness is a private citizen, as in the present

case, state action is supplied by neither the prosecutor’s intent nor the witness’s status. It must, then,

be supplied by the fact that the false evidence has actually adversely affected state judicial

proceedings.15 A mere possibility that the proceedings have been affected is not enough.

        The second reason is finality. A prosecutor who knowingly uses false evidence should

understand that the case is a ticking time bomb that is likely to explode the moment the defendant

discovers what has happened. The State can hardly maintain a significant expectation of finality in

proceedings in which the prosecutor has acted in such a way.16 What the State has is a minimal

interest in finality: the conviction is maintained if there is no reasonable possibility that the false

evidence would have changed the result. The State’s finality interests may become more significant

if the defendant fails to raise the claim at his first opportunity or if the defendant is dilatory in raising

his claim. But so long as the defendant has raised a knowing-use claim at his first opportunity and

with reasonable promptness, the State’s finality interest in the conviction in the face of such a claim


        14
          See Estrada v. State, 313 S.W.3d 274, 287-88 (Tex. Crim. App. 2010) (testimony of A.P.
Merillat). See also Devoe v. State, 354 S.W.3d 457, 467 (Tex. Crim. App. 2011) (describing
Merillat as “a senior criminal investigator for the Texas Special Prosecution Unit”).
        15
            See Sanders v. Sullivan, 863 F.2d 218, 222, 224 (2nd Cir. 1988) (observing that many
jurisdictions require “prosecutorial, or at least official government involvement” to “constitute[] the
requisite state action necessary to a due process violation” and concurring with these jurisdictions’
disapproval of “the principle that a due process violation occurs when, without more, perjured
testimony is introduced at trial,” but holding that sufficient state action is shown when a credible
recantation of testimony “would most likely change the outcome of the trial”).
        16
           See Mooney v. Holohan, 294 U.S. 103, 111 (1935) (Due process “cannot be deemed to be
satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a
trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate
deception of court and jury by the presentation of testimony known to be perjured. Such a
contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent
with the rudimentary demands of justice as is the obtaining of a like result by intimidation.”).
                                                              WEINSTEIN CONCURRENCE — 5

is minimal.

        But the State’s interest in finality is substantial when the use of false testimony is unknowing.

In that situation, the State has not tried to subvert the system and may be as likely as the defendant

to be surprised by the revelation that a witness has lied or that some testimony or other evidence

introduced at trial was false. And the adversary system is designed to ferret out the truth from

conflicting evidence.17 Sometimes apparent conflicts in testimony can be reconciled, but it is often

the case that not all of the testimony can be the truth. Fact witnesses may have irreconcilable

accounts about what happened, or there may be a battle of experts who take diametrically opposed

positions. We generally expect the adversary system to handle these types of conflicts, even when

we know that someone must not be telling the truth.18 If the State knows certain evidence is false,

we expect the State to disclose that fact, but if the State is not aware of the falsity, we generally

expect the adversary system to deal with it. It stands to reason, then, that we would want to overturn

the results of a trial on the basis of the unknowing use of false evidence only if we are convinced that

the false evidence probably changed the result.19


       17
          See Penson v. Ohio, 488 U.S. 75, 84 (1988) (“The paramount importance of vigorous
representation follows from the nature of our adversarial system of justice. This system is premised
on the well-tested principle that truth—as well as fairness—is best discovered by powerful
statements on both sides of the question.”) (internal quotation marks omitted).
       18
           See State v. Lotter, 278 Neb. 466, 479, 771 N.W.2d 551, 562 (2009) (“A defendant has
a due process right to a trial process in which the truth-seeking function has not been corrupted. But
it is axiomatic that the truth-seeking process is not defective simply because not all evidence
weighed by the trier of fact was actually true. The protections of a ‘fair trial’ granted the defendant
in the criminal process are there precisely because some of the evidence against the defendant may
be disputed.”).
       19
           See Sanders, 863 F.2d at 225 (“This standard of scrutiny [heightened materiality
requirement] meets at least some of the criticism made by many of the cases rejecting this view”
based on concerns of finality. Also citing Carlson, False or Suppressed Evidence: Why a Need for
                                                             WEINSTEIN CONCURRENCE — 6

        The third reason is the analytical nature of the claims. The knowing use of false evidence

is prosecutorial misconduct.20 In addition, while the knowing use of false evidence can be

characterized as misconduct subject to a materiality standard, it can also be legitimately characterized

as “error subject to harmless-error review,”21 with the Chapman test simply being the harm standard

that applies to any constitutional error that is not structural.22 That is, a prosecutor’s knowing use

of false evidence could itself be seen as the constitutional violation, without regard to materiality,

with that constitutional violation then being subject to a harm analysis. By contrast, the unknowing

use of false evidence is not prosecutorial misconduct and cannot, by itself, be legitimately

characterized as a constitutional error subject to harmless error review. A defendant cannot be said

to have suffered a due process violation merely because a private citizen has testified falsely. Only

when a materiality standard is added—a standard more onerous than the constitutional harmless error

test—can the unknowing use of such false evidence rise to the level of a due process violation.

             B. The holdings in out-of-state cases confirm a higher materiality standard
                for the State’s unknowing use of false evidence than for knowing use.

        The Supreme Court has never held that the State’s unknowing use of false evidence can




the Prosecutorial Tie?, 1969 DUKE L.J. 1171, 1187-88, for the proposition that a “more liberal
approach” that permits relief to be granted when the prosecutor has unknowingly used false evidence
“would threaten only those final judgments which merit unsettlement” so long as the rule is
“[h]edged with the appropriate standards requiring the defendant to demonstrate materiality”); Case,
144 N.M. at 25-26, 183 P.3d at 910-11 (adopting a heightened materiality requirement due to
concerns about the eroding effects of the passage of time on the evidence available for a retrial).
        20
              Bagley, 473 U.S. at 680.
        21
              Id. at 679-80.
        22
              See id. at 679-80 & n.9.
                                                            WEINSTEIN CONCURRENCE — 7

constitute a due process violation.23 Aside from Texas, several jurisdictions, led by the Second

Circuit, have decided that it can, with a higher standard of materiality than the standard for knowing

use.24 Some courts have declined to address the issue on the ground that the defendant had not

satisfied the rigorous materiality standard set forth by the Second Circuit in Sanders.25 The Fifth,


       23
           See Cash v. Maxwell, 132 S. Ct. 611, 615 (2012) (Scalia, J., dissenting to refusal to grant
certiorari) (“To make matters worse, having stretched the facts, the Ninth Circuit also stretched the
Constitution, holding that the use of Storch’s false testimony violated the Fourteenth Amendment's
Due Process Clause, whether or not the prosecution knew of its falsity. We have never held that, and
are unlikely ever to do so. All we have held is that ‘a conviction obtained through use of false
evidence, known to be such by representatives of the State, must fall under the Fourteenth
Amendment.’ This extension of due process by the Ninth Circuit should not be left standing.”)
(internal citations omitted, emphasis by Scalia); Gould v. Comm'r of Corr., 301 Conn. 544, 570 n.18,
22 A.3d 1196 n.18 (2011) (noting the New Mexico Supreme Court’s observation that “[t]he United
States Supreme Court has not addressed the issue”); Lotter, 278 Neb. at 478-79, 771 N.W.2d at 562
(“The U.S. Supreme Court, while holding that affirmative prosecutorial involvement in perjured
testimony may interfere with the fairness of the trial process, has never held that the prosecutions
unknowing reliance at trial on perjured testimony violates any constitutional right.”).
       24
           Sanders, 863 F.2d at 222-23 (when a credible recantation “would most likely change the
outcome of the trial”); Lewis v. Erickson, 946 F.2d 1361, 1362 (8th Cir. 1991) (if the new evidence
“would probably produce an acquittal on retrial”); Commonwealth v. Spaulding, 991 S.W.2d 651,
657 & n.1 (Ky. 1999) (In unknowing use cases, “the burden remains on the defendant to show . . .
that the conviction probably would not have resulted had the truth been known.” This part of the
“test places a heavier burden on the defendant than does the test used when perjured testimony is
introduced with knowledge or acquiescence of the prosecution.”); Case, 144 N.M. at 24-26, 183 P.3d
at 909-11 (holding that “we must distinguish between a ‘knowing prosecutorial use of perjured
testimony’ . . . and a ‘mere repudiation of former testimony or admission of perjury,’” and
emphasizing the need in the latter context for a “firm belief” that the defendant would most likely
not have been convicted). See also Ex parte Napper, 322 S.W.3d 202, 242 n.151 (Tex. Crim. App.
2010) (recognizing that “[t]he Second Circuit has suggested that the unknowing use of perjured
testimony violates due process if a stronger showing of materiality or harm is made than is required
by the Chapman standard.”); Ex parte Chavez, 371 S.W.3d 200, 212-13 (Tex. Crim. App. 2012)
(Keller, P.J., dissenting) (discussing Sanders); Ex parte Carmona, 185 S.W.3d 492, 497-98 (Tex.
Crim. App. 2006) (Hervey, J., dissenting) (citing Sanders).
       25
          Smith v. Roberts, 115 F.3d 818, 820 & n.2 (10th Cir. 1997) (because “the circumstances
here do not present the compelling situation upon which the court grounded its ruling in Sanders,
we conclude this is not the case to revisit” those prior precedents); State v. Bader, 148 N.H. 265,
285-86, 808 A.2d 12, 32-33 (2002) (rejecting the defendant’s claim while observing that Sanders
                                                               WEINSTEIN CONCURRENCE — 8

Seventh, and Eleventh Circuits, along with the States of Illinois and Nebraska, have expressly

rejected the Second Circuit’s expansion of due process to the unknowing use of false evidence and

hold, instead, that due process is violated only if false evidence is knowingly used by the

prosecution.26 The Ninth Circuit appears to recognize a due process violation if the prosecution

knew or should have known that the testimony was false.27 Whether that court recognizes a due

process claim when the prosecution is completely without fault is unclear, but the cases in which

such a claim may be recognized involve facts that would meet the Second Circuit’s high standard

of materiality.28

        With the possible exception of the Ninth Circuit, I am unaware of any jurisdictions applying

the Chapman standard of materiality to the unknowing use of false evidence. Instead, courts that


and other cases imposed a more rigorous materiality requirement for unknowing use than for
knowing use of false evidence).
        26
           Smith v. Black, 904 F.2d 950, 962 (5th Cir. 1990); Schaff v. Snyder, 190 F.3d 513, 529-30
(7th Cir. 1999); Jacobs v. Singletary, 952 F.2d 1282, 1287 n.3 (11th Cir. 1992); People v. Brown,
169 Ill. 2d 94, 106, 660, N.E.2d 964, 970 (1995) (“In the absence of an allegation of the knowing
use of false testimony, or at least some lack of diligence on the part of the State, there has been no
involvement by the State in the false testimony to establish a violation of due process . . . . Without
such involvement, the action of a witness falsely testifying is an action of a private individual for
which there is no remedy under the due process clause.”); Lotter, 278 Neb. at 479, 481, 771 N.W.2d
at 562, 563 (“[T]he presence of perjury by a key witness does not, in and of itself, present a
constitutional violation.”).
        27
           See Jones v. Ryan, 691 F.3d 1093, 1102 (9th Cir. 2012) (“To prevail on a due process claim
based on the presentation of false evidence, a petitioner must show that (1) the testimony (or
evidence) was actually false, (2) the prosecution knew or should have known that the testimony was
actually false, and (3) . . . the false testimony was material.”) (ellipsis in original, internal quotation
marks omitted).
        28
           Maxwell v. Roe, 628 F.3d 486, 506-08 (9th Cir. 2010) (facts suggest unknowing use of
false testimony but unclear if court was treating it as such, but the court observed that, consistent
with fact patterns in earlier cases, the falsely testifying witness was the “make or break” witness
for the prosecution and the witness’s testimony was the “centerpiece” of the prosecution’s case).
                                                           WEINSTEIN CONCURRENCE — 9

recognize a due process violation based upon the unknowing use of false evidence, excepting

possibly the Ninth Circuit, seem to uniformly agree that a due-process violation based on unknowing

use requires a higher standard of materiality. Given that it is currently a controversial proposition

to even recognize a due-process violation flowing from the State’s unknowing use of false evidence,

the higher standard of materiality is an important factor used to overcome objections to such

recognition.29

       I respectfully concur in the Court’s judgment.

Filed: January 29, 2014
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       29
            See this opinion, ante.
