Note: When Added Hurdles Cause Actual Prejudice: Exempting Knowing-Use-of-Perjured-Testimony Claims from Brecht Analysis on Collateral Review

By Melanie A. Johnson. Full text here.

The knowing use of perjured testimony is considered one of the most serious constitutional trial errors established in Brady v. Maryland. Yet, due to an unresolved gap in habeas jurisprudence, circuits courts have split on the materiality standard required for a habeas petitioner to bring such a claim on federal collateral review.

At most stages of post-conviction review, perjured-testimony claims are analyzed under a materiality standard that asks whether it is reasonably likely that the jury’s verdict could have been affected by knowledge of the truth. However, a strict reading of Supreme Court precedent has led some jurists to conclude that such claims must be held to an actual-prejudice standard when raised by habeas petitioners on federal collateral review—a conclusion that holds perjured-testimony claimants to a higher materiality standard than other Brady claimants at the point at which the stakes for relief are the highest.

How can courts balance these shifts in habeas jurisprudence with the due process rights conferred to defendants by decades of Brady case law? This Note argues that a consistent approach to prosecutorial misconduct requires establishing a bright-line rule exempting all Brady violations from application of the actual-prejudice standard established for constitutional trial errors by Brecht v. Abrahamson. Furthermore, this Note suggests that the circuit courts’ struggle to reach a consistent holding on this issue speaks strongly to the need for the Supreme Court to reclassify the knowing use of perjured testimony as a structural error affecting the framework of trial.