Recantation was never a defense to perjury in the common law, and is not a complete defense in a Section 1621 prosecution. United States v. Norris, 300 U.S. 564, 573-74 (1937). Recantation in such cases is relevant only as to whether the defendant intended to make a willfully false statement. Id.
Section 1623(d), however, makes recantation a bar to a perjury prosecution in certain cases that meet either three or four requirements. First, the recantation must be made "in the same continuous court or grand jury proceeding" in which the original false declaration was made. Second, the recantation must unambiguously admit that the prior statement was false. A request to clarify or supplement testimony is not enough to satisfy the statutory requirement. Finally, recantation bars prosecution only if the admission occurs at a time when the false declaration has "not substantially affected the proceedings, and it has not become manifest that such falsity has been or will be exposed." United States v. Fornaro, 894 F.2d 508, 511 (2d Cir. 1990); United States v. Scivola, 766 F.2d 37, 45 (1st Cir. 1985); United States v. Moore, 613 F.2d 1029, 1039 (D.C. Cir. 1979), cert. denied, 446 U.S. 954 (1980). Thus, if the witness has knowledge that the false testimony "has been or will be exposed," no effective recantation can thereafter be made. United States v. Denison, 663 F.2d 611, 615 (5th Cir. 1981). Similarly, if the grand jury has acted in reliance upon the false testimony, no recantation is possible. The United States Court of Appeals for the Eighth Circuit, however, viewed the last two requirements in the disjunctive when it allowed a defendant an opportunity to show either that the proceedings were not substantially affected or that the falsity will be exposed. United States v. Smith, 35 F.3d 344, 347 (8th Cir. 1994). Because recantation is a jurisdictional bar to prosecution, Fed.R.Crim.P. 12(b)(2) requires that it be shown before trial. United States v. Fornaro, 894 F.2d 508, 511 (2d Cir. 1990).
PRACTICE TIP: The prosecutor has no duty to advise a witness of the possibility of recanting under Section 1623(d), even if the witness is advised of the penalties for perjury. Nor must the government confront a witness with evidence of the untruthfulness of his statements, or, conversely, delay revealing incriminating evidence so that the witness can consider whether to recant. If, however, the prosecutor specifically allows a witness to "straighten out" testimony, the government may be estopped from challenging a witness's eligibility to recant. Normally, no perjury prosecution should be undertaken after a solicited recantation, even if the defendant was technically ineligible under Section 1623(d).
PRACTICE TIP: If a witness who has completed his or her testimony requests the opportunity to appear before the grand jury to recant testimony, the prosecutor should grant the request, provided it is timely and in keeping with the promotion of truthful testimony. A witness's request for reappearance after the falsity of the previous testimony has become manifest does not preclude prosecution of the prior false declaration and may be denied.
[cited in JM 9-69.200]