The Supreme Court of the United States is likely to issue a ruling on the Troy Davis case by October 6th.  With the presidential election in its bell lap and the economy in full meltdown, a lot of stories aren’t getting the attention they deserve.  Fortunately, the Atlanta Journal-Constitution has stayed on the Davis saga and the tangled legal issues it has brought to public awareness.

In cases devoid of physical evidence and completely dependent on eyewitness testimony, what does it take to spark a hearing or a new trial?  The evidentiary standard is exceedingly high: proof, with “no doubt of any kind,” that a witness’s trial testimony was “the purest fabrication.”

Could the Supreme Court justices decide that there is enough doubt about Mr. Davis’ guilt to commute the sentence but not enough doubt to order a new trial?  That’s not the way the system works.  Defendants aren’t sort of guilty or marginally innocent; it’s an either/or proposition. 

This means a court could be deeply troubled by the rash of recantations in the Davis case while ruling that, as a matter of law, Mr. Davis can be given no relief.  As the Journal-Constitution article emphasizes, witness recantations don’t carry much weight with appeals courts.  The mere fact that a witness is no longer sure what they saw isn’t sufficient.  Unless there is proof, with “no doubt of any kind,” that a witness’ trial testimony was “the purest fabrication” no relief can be granted.

That’s a mighty high hurdle.  In the absence of physical evidence, how can you ever prove that a witness had it wrong in 1991 and has now got it right?  All things being equal, the original testimony will be given greater weight by appeals courts because it was closer to the date of the alleged crime and therefore more likely to be reliable. 

What if it is asserted that the recanting witness was coerced into testifying falsely.  But how can we evaluate this claim?  It would require a hearing to establish that (a) a coercion claim is being made, and a hearing can’t be granted unless all doubt about the veracity of the original testimony has already been removed. Even then, when law enforcement swears that witnesses weren’t coerced, we would be left with a he-said-she-said stand off.  The mere fact that law enforcement says witnesses testified freely casts some doubt on the claim of coercion.  And some doubt, no matter how little, is all you need to uphold a conviction.

What if all seven of the recanting witnesses in the Davis case claim they were coerced?  Would that be enough to spark a hearing or a new trial?

Not if you follow the “no doubt” and “purest fabrication” guidelines.  There will always be a modicum of doubt that a recanting witness originally got it wrong.  Maybe they just don’t want to be complicit in a death sentence.  Maybe memory has faded over time.  Technically speaking, a conviction should be upheld even if the preponderance of evidence would incline a reasonable person to feel uneasy about a conviction.  Essentially, the existing standard demands positive proof of innocence; something you will never have in a case like this.

This doesn’t mean that Troy Davis is doomed to die by lethal injection.  In fact, by calling for a hearing in this case, the Supreme Court may establish an important precedent that will lower the bar in cases involving witness recantation.  The standard would be the same, but the interpretation would change.

The fact that several justices on the Georgia Supreme Court disagreed with the majority suggests that the legal community is divided over this issue.  We are unlikely to see a unanimous ruling at the federal level.

A recent string of DNA exonerations has shaken confidence in eyewitness testimony.  We are learning that eyewitnesses are far more prone to error, influence and self-deception than the legal system has traditionally realized.

Will the Supreme Court bring the evidentiary bar down a notch or two in cases involving witness recantation?  Stay tuned.