In what circumstances has the prosecutor been found not guilty of perverting the course of justice in a perjury trial?

In Schenkman, where the indictment was upheld, we emphasized (46 N.Y.2d at p. 234, 413 N.Y.S.2d 284, 385 N.E.2d 1214) that "the questioner provided more than enough cues, through restatement and repetition to stimulate her recollection". Similarly, in Pomerantz, where the indictment was also upheld, we again emphasized (at 46 N.Y.2d p. 249, 413 N.Y.S.2d 288, 385 N.E.2d 1218) that "the key questions were repeated, restated, and elaborated upon until it was apparent that further effort was fruitless". In Tyler, on the other hand, we dismissed the indictment because the interrogator "evinced no interest in having defendant give a convincing narrative of the meeting" (People v. Pomerantz, supra, 46 N.Y.2d at p. 249, 413 N.Y.S.2d 288, 385 N.E.2d 1218). He did not pursue the matter and was "content with the defendant's description" (People v. Tyler, supra, at p. 260, 413 N.Y.S.2d 295, 385 N.E.2d 1224). That also describes the prosecutor's conduct in the case now before us.

In fact what occurred here is less tolerable because in Tyler the defendant was extensively questioned about the details of the meeting (see People v. Tyler, supra, at pp. 256, 257, 413 N.Y.S.2d 295, 385 N.E.2d 1224) and during his testimony disclosed several inconsistencies with the known facts. Here, however, the defendant answered all questions with candor, no matter how damaging, and yet a single answer to a stray question has been used as a basis for a perjury indictment.