485 U. S. 58
February 24, 1988
When a guy was put on trial for bribery, he tried to argue both that he hadn’t been bribed, and that if he had, the government had entrapped him into doing so. The question was whether a court could prohibit him from making these two defenses that necessarily involved inconsistent testimony. The government argued that a defendant must choose either one story or the other.
The Supreme Court disagreed in a 6-2 vote (Kennedy did not participate). Rehnquist, writing for the majority, noted that some lower courts had allowed inconsistent defenses, and that a defendant should be able to advance any reasonable argument to avoid conviction. Although the Federal Rules of Criminal Procedure did not formally authorize it, Rehnquist did not see its silence as a bar. He was also unmoved by the argument that allowing two defenses would encourage perjury, reasoning that good lawyers could work around that potential problem. The majority finally observed that inconsistent testimony would be largely self-penalizing for the defendant.
Brennan, in concurrence, said that he now acquiesced in the majority’s statement that the defendant’s state of mind was a crucial element of the entrapment defense (previously, he had argued that only the actions of the government mattered). Scalia, concurring in judgment, thought admitting to commission of a crime ought not be considered an element of entrapment. Even with the majority considering it an element, Scalia thought that inconsistent testimony for an entrapment defense was rare enough and self-penalizing enough to be allowed.
White, dissenting with Blackmun, argued that the Court had no legal leg to stand on. Entrapment defenses were not a privilege granted by the Constitution, statutes, or Federal Rules, so White found no ground for telling a lower court concerned about perjury and truth that couldn’t bar such a defense. White felt that the perjury concerns were much stronger than the majority admitted, and said that a court’s role as truth-seeker needed to be remembered. I personally still side with Rehnquist. In an ideal world, consistent testimony should be given, but juries will not always believe the truth, and so to guard against wrongful convictions, I would allow inconsistent stories.