Could I create reasonable doubt by having multiple people suggest, but not actually claim, that they were the murderer?

Question

Let's say hypothetically I'm a member of some gang and just killed a member of a rival gang. I've been accused of murder and taken to trial. My fellow gang members want to help me get off, but not so much that they're willing to do anything that could lead to them going to jail instead.

It's possible for one of the gang members to claim to be the murderer to sow reasonable doubt in theory (What prevents someone from claiming to be the murderer in order to get the real murderer off?) However, they would then be guilty of perjury and other crimes which my fellow gangbangers likely don't want to go to jail for.

However, instead of one person coming forward and explicitly saying they committed a crime what if multiple gang members all came forward and implied they committed the crime. For instance, saying things like "I was planning to kill that man for being on our territory, but I won't say I did it," or "I 'took care of' some of the rival gang members that day" something along the line. Could a half dozen individuals come forward to intentionally sow confusion as to who the murderer was without risking perjury and thus help the actual murderer go free?

If the inability to plead the fifth when giving testimony makes it too hard to imply guilt of yourself could they instead intentionally point the finger at other gang members (with those member's approval), thus allowing them to imply guilt of another without being put in a position where they had to explicitly say yes they did or didn't commit the murder if asked directly, since they can't definitively know what another person did.

Has any situation like this actually occurred in real criminal cases?

Answer 1

So, as you say, these witnesses who try to help their buddy out may be committing perjury. Also, D himself, by lining this up, is probably on the hook for conspiracy to commit perjury and being complicit in perjury.

Aside from that, I think your question is: would getting people to testify in a way that implies they did the crime lead to an acquittal for the murderer? The answer is: maybe.

The jury will either vote to acquit or to convict. If the jury votes to acquit, then it's over. Double jeopardy protects D from being tried for murder again. But, if the jury votes to convict, the fact that D had his friends testifying in the way you suggest isn't going to get the conviction overturned on appeal because "a reviewing court resolves neither credibility issues nor evidentiary conflicts." People v. Young, 34 Cal.4th 1149, 1181 (Cal. 2005).

I haven't done a trial yet, but it strikes me that that might not be the greatest trial strategy. I think generally defense lawyers would prefer to make their client look the furthest thing from gang affiliated as possible.

Don't lie to a court or ask anyone to lie to a court for you.

Answer 2

Could a half dozen individuals come forward to intentionally sow confusion as to who the murderer was without risking perjury and thus help the actual murderer go free?

Yes, so long as they testified truthfully in what they said, or made statements that it would be impossible to prove were lies. Suggesting a narrative in which someone else committed a crime is almost always a legally permissible criminal defense strategy.

Has any situation like this actually occurred in real criminal cases?

I'm certain that it has, although I'm not enough of a true crime fan to have an example readily at hand. Coming forward and identifying yourself as someone with knowledge about the inner workings of a gang puts you at risk of being prosecuted for serious crimes yourself.

Still, this is a quite uncommon situation. Gang members and organized crime criminal organizations tend to take the advice that they have repeatedly received from their criminal defense lawyers over the years and refuse to talk to police. There is a strong norm in that subculture against "snitching" and even ordinary citizens who testify against a gang member face grave risks of suffering extralegal retaliation from other members of the gang or criminal organization. This reality is why the witness protection program was invented.

More often, what happens is that these kinds of statements are made to law enforcement officers investigating the case, and the prosecutor declines to prosecute, in part, because it may be too difficult to prove the defendant's guilt beyond a reasonable doubt, and in part, because ultimately, the prosecutor's office and law enforcement officers may not be inclined to devote excessive resources to proving that one gang member murdered another gang member who may very well have been a murderer or committed other very serious crimes himself.

A very large share of all unsolved murder cases in the U.S. involve this kind of fact pattern, with one criminal killing another, often as one gang strikes another for perceived grievances that escalate into a gang war. Much of the very large decline in crime rates in the U.S. from the 1990s to the present reflects decreased criminal activities by gangs which is particularly hard for law enforcement to solve. And, in the countries in Latin America with high murder rates, a very large share of those murders are gang related murders.

Normally, when there is a prosecution, it is because law enforcement and the prosecutor's office have a police informant, or undercover officer, or have placed immense pressure on a gang member who is also at risk of criminal prosecution for serious crimes to turn on the guilty party and testify against him. It would be quite rare for a murder prosecution in a gang on gang murder to proceed without this kind of star witness with personal knowledge of the facts corroborated by some third-party evidence like security camera footage, DNA evidence, finger prints, or cell phone data.