Criminal defense attorney facing prospective client perjury, The

criminal defense attorney facing prospective client perjury, The

Slipakoff, Brian

INTRODUCTION

The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) create an obligation for lawyers to disclose to the tribunal when perjured testimony has been or may be introduced.1 The problems of identifying such perjury and the obligations that arise from Model Rule 3.3 are varied and complex.2 Client perjury puts the criminal defense attorney in an unenviable position. It creates a tension between the duty of zealous advocacy and the duty of candor toward the court.3

Dean Monroe Freedman famously presents this problem in terms of the “perjury trilemma.”4 Dean Freedman notes that lawyers face three obligations in performance. The first two stem from the important, almost sacred, attorneyclient relationship. First, there is the duty to investigate a client’s case. As Dean Freedman argues, “in order to give clients the effective assistance of counsel to which they are entitled, lawyers are required to seek out all relevant facts.”5 Second, there is the obligation of zealous client advocacy.6 These are potentially at odds with the third duty, the obligation of lawyers to the court. Lawyers are officers of the court and hold certain responsibilities as such.7 They have specific requirements imposed upon them in such a capacity that cannot be forsaken.8

disclosure of potential client perjury threatens the relationship between an individual accused of a crime and their one and only representative in the criminal justice system. “[T]o convert the defendant’s only champion into yet another member of the state’s legions seems an unnecessary and offensive step.”9 Dean Freedman argues that only two of these three obligations can be met at any given time.10 So which of the three should go? In our adversarial system, the relationship between a criminal defense attorney and her client is special. The first and second obligations are essential for zealous advocacy. 11 The third, however, is essential for lawyers as participants in the judicial system as a whole.12 This creates a complicated and difficult situation for a criminal defendant attorney.

This Note will discuss some of the varied commentary on Model Rule 3.3 in light of the perjury trilemma. It presents the key issues at stake for criminal defense attorneys facing prospective client perjury. Part I will discuss the constitutional questions surrounding the issue of prospective client perjury faced by the criminal defense attorney. The question of whether an attorney has violated the tenets of the Model Rules turns, generally, on two issues: what is “knowingly” and what is “material.” Part II of this Note will discuss the knowledge requirement of Model Rule 3.3, arguing that the ABA and the courts should adopt the most stringent standard for knowledge: that a criminal defense attorney must have proof beyond a reasonable doubt before going to the drastic step of disclosure to the tribunal. This will preserve the constitutional rights of criminal defendants and maintain the sanctity of the attorney-client relationship. Part III will discuss the materiality requirement of Model Rule 3.3, arguing that materiality of a disputed fact is an important consideration in a lawyer’s individual determination of her obligations under Model Rule 3.3. Finally, Part IV will discuss what options are available to attorneys who may find themselves facing potential client perjury. The Model Rules should list the available possibilities, relying on the lawyer’s judgment to determine what is best for the client.

I. CONSTITUTIONAL DUTIES OF CRIMINAL DEFENSE ATTORNEYS

The interaction of a defendant’s constitutional rights with the responsibilities of his lawyer to avoid presenting false evidence or making material misstatements of fact13 forms the basis of this Note; namely, what does a lawyer do when she believes that her client may commit perjury at his criminal trial? As discussed below, this question has both a constitutional and an ethical component. The constitutional question is whether the actions an attorney takes will deprive her client of either effective assistance of counsel or due process of law.14 State laws regarding the professional conduct of attorneys form the ethical component of the criminal defendant perjury problem.

The issue itself has yielded a multiplicity of approaches and decisions in the last quarter-century, but none has provided a definitive answer on the topic.20 The thorniness of the question should not, however, prevent its careful study and a deliberative approach to the topic. When do the actions of an attorney who acts upon the potential perjury of her criminal defendant client violate the client’s federal constitutional rights?

right to counsel27 have become enforceable against the states. In addition, the Supreme Court has recognized certain other rights as corollary to and emanating from those granted by the Fifth and Sixth Amendment, including the right of a criminal defendant to testify in his own defense.28

In Nix v. Whiteside, the Court addressed the question of whether a lawyer’s refusal to allow his client to perjure himself was ineffective assistance of counsel.29 In Nix, the defendant was charged with murder and claimed self-defense.30 The defendant, in his first interview with counsel, said that he did not see a gun in the decedent’s hand but believed that there was one.31 The defendant repeated this story until just before trial, when he first claimed that he in fact saw something “metallic.”32 After his counsel inquired about this change, he responded that “[i]f I don’t say I saw a gun, I’m dead.”33 Counsel then told the defendant that if the defendant testified about seeing something metallic, counsel would inform the court of the perjury and testify against the defendant as a rebuttal witness.34 The defendant then testified that he did not see a gun in the decedent’s hand, and he was convicted.35 He challenged his conviction on the grounds that his lawyer’s threats constituted ineffective assistance of counsel in that they deprived him of a fair trial.36 The Eighth Circuit Court of Appeals vacated the defendant’s conviction on the grounds that the attorney’s “threatened violation of client confidences breached the standards of effective representation.”37 The Supreme Court reversed, holding, among extremely broad dicta about the values of professional responsibilities and the justice system, that the defendant could not claim ineffective assistance because he had “no ‘right’ to insist on counsel’s assistance or silence” in the commission of perjury.38

This decision is consistent with Nix in that here, counsel did not have any objective reason to believe that the defendant intended to perjure himself. The Wilcox court eventually brought up the question “whether an attorney representing a defendant in a criminal case must, or indeed may, disclose his client’s intentions to perjure himself. . . .”55 but shied away from the answer. Therefore, taken together, Nix and Wilcox stand for the proposition that there is no Sixth Amendment violation when a lawyer refuses to allow her client to testify in a criminal trial when she knows, not just suspects, that the client will perjure himself.

what an attorney should do with a perjurious client, the court admitted that the result was “unhappy” and anomalous, but that “the fundamental prerequisites of a fair trial have been irretrievably lost.”63 “If in truth the defendant has committed perjury … she does not by that falsehood forfeit her right to fair trial.”64 Lowery indicates that, where counsel interjects herself and notifies that court that she believes the defendant will commit perjury, her action so prejudices the court against the defendant that it produces a due process violation. It is important to note that, while Lowery was decided pre-Nix, it was neither overruled nor directly addressed in that case.

Nix, Wilcox, and Lowery together create a basic framework for understanding how the Constitution intersects with ethical rules and canons. A lawyer may threaten to withdraw or to testify as a rebuttal witness in order to ensure that the client will not perjure himself without violating the Sixth Amendment when she knows that her client intends to perjure himself. However, when she only suspects, but does not know that her client will perjure himself, she risks violating the Sixth Amendment when she threatens to take such actions. Finally, counsel may violate her client’s right to due process if she discloses to the court that she believes her client to be perjuring himself. With these baseline areas of constitutional law established, we will now deal specifically with the implications of Model Rule 3.3 in the area of criminal defense.

II. KNOWLEDGE

Model Rule 3.3 limits what lawyers may not knowingly present to the court in the form of false information, testimony, or evidence.65 This requirement creates a threshold question of what the lawyer knows. “Knowingly” as defined in the Model Rules means actual knowledge.66 This definition also states “knowledge may be inferred from circumstances.”67 How have the courts and lawyer practitioners interpreted this definition?

The problem is complicated by the fact that lawyers may deliberately avoid the truth. The knowingly requirement provides sufficient room for lawyers to avoid candor to the tribunal. This selective ignorance allows lawyers to avoid the ethical dilemma fairly successfully; a lawyer may choose not to know with absolute certainty any inconsistencies within her client’s testimony.70 Practitioners have written to highlight the flexibility of the knowledge standard:

Certainly, our ethical standards regarding candor contain little, if anything, to restrict us from taking position we do not fully believe in … [A loophole] is provided by the qualified “knowingly.” All of us know how to play that game. We avoid acquiring any knowledge that would prevent us from pursuing the strategies out clients want us to pursue. In a broader sense, we can even convince ourselves that there is no “truth,” or at least no truth that is ascertainably by attorneys, because it is the jury’s job to determine the truth, we tell ourselves, attorneys neither can nor should determine it.71

In spite of the commonality of this practice, the courts,72 most commentators,73 and the ABA itself,74 have made clear that such selective ignorance is unacceptable. They have made clear that lawyers subject to Model Rule 3.3 will be held to a “reasonable lawyer” standard.75 A lawyer will be judged on what she should have known given the information presented to her by the facts of the circumstances; thus selective ignorance is not an acceptable solution to the problem of client perjury. What should a reasonable criminal defense lawyer do? By what standard should they judge possible prospective perjury?

the counsel met a particular standard of knowledge in coming to the conclusion that a defendant was planning to commit perjury, because the court so specifically centered its holding on the particular facts of the case.78

Those courts that have concluded that a standard exists have articulated a number of various standards.79 Some courts have used circumstantial evidence and a good faith belief as sufficient basis to constitute attorney knowledge of impending perjury.80 Despite these cases, the majority of courts have held that there is a fairly high standard for knowledge under Model Rule 3.3.81 Some corroboration is required as proof – more than unsubstantiated rumor is required to satisfy the Model Rule and justify a lawyer’s decision to turn on her client.82 Most commentators, including the ABA, agree with this analysis.83

Some courts have articulated the appropriate standard of determining prospective client perjury as a requirement of a “firm factual basis.”84 Other courts have adopted a more stringent standard, requiring proof “beyond a reasonable doubt” before a lawyer’s Model Rule 3.3 responsibilities warrant disclosure to the court.85 Commentary supports this standard as well.86 But even these stringent standards create problems in application.

reasonable doubt of a client’s intention to commit perjury while on the witness stand? In Nix, the Supreme Court held that a client admission of a clear intent to commit perjury is sufficient evidence to constitute actual knowledge on the part of the defense attorney.87 But is this definition of knowledge complete? ABA Formal Opinion 353 requires that knowledge be established by a “clearly stated intention to commit perjury.”88 However, disclosure is not necessarily required when a client states an intention of committing perjury. The ABA makes a clear distinction between prospective and actual false testimony.89

Given this ambiguity regarding the responsibilities of lawyers under Model Rule 3.3 in interpreting the standard for knowingly, the ABA Ethics 2000 Commission made specific recommendations for clarifying Model Rule 3.3. Although the Ethics 2000 recommendations state that the same requirements apply to criminal defense attorneys as all other attorneys,90 the Commission made a significant concession to zealous representation to account for the ethical difficulties present in the representation of a criminal defendant.91 Although the Commission report fails to articulate a precise standard by which to judge lawyer disclosure in such a case, it clarifies that the good faith standard is not appropriate.92 The Commission provisions state that: “A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.”93 “[T]he commentary makes clear that a court requires defense counsel to allow the accused to testify if he decides to do so, the obligation of the advocate under the Rules is subordinate to such a requirement.”94

Given that neither Model Rule 3.3 nor its interpretation in case law has provided clear guidance on the issue, it is extremely difficult for a lawyer judge when her knowledge is sufficient to trigger the duty of candor. In accordance with the high standards of proof of knowledge articulated in the case law and commentary, a lawyer should always give deference to the client. A lawyer should resolve any doubt in favor of her client. After all, it is their role to represent and advocate for the client – not judge them.99 Courts should recognize and articulate the Commission’s definition of knowledge for interpretation of Model Rule 3.3.

III. MATERIALITY

Model Rule 3.3 provides that “a lawyer shall not knowingly make a false statement of material fact or law to a tribunal; fail to disclose a material fact to a tribunal when necessary to avoid assisting a criminal or fraudulent act by the client; … [if he offers] material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.100 This Section will deal with when a statement or piece of evidence’s falsity will trigger a prohibition of Model Rule 3.3.

whether it “has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a [particular] determination.”103 “The false testimony need not be directed to the primary subject of the investigation, it is material if it is relevant to any subsidiary issue under consideration by the tribunal.104 Materiality is determined at the time the false statement is made, not in the light of future circumstances. 105 Any false material statements of fact are not rendered irrelevant by the availability of truthful information elsewhere, as “it is well settled that a false statement may be material even if the [tribunal] already knows the truth or can readily learn the truth from other sources.”‘ 6 These four principles guide federal courts in their application of the materiality requirements of perjury and they help inform this Note’s inquiry into the similar requirement for Model Rule 3.3.

The concerns underlying perjury are present in the both the criminal and ethical setting. “The purpose of the perjury statute is to keep the process of justice free from the contamination of false testimony, and that punishment is given for the wrong done to the courts in the administration of justice ….”107 This statement could just as easily apply Model Rule 3.3. The reason that the lawyer is forbidden from making misrepresentations of material fact is that it cheapens the profession by bringing lawyers generally into disrepute, while simultaneously undermining the system of justice. 108 Under the view of the drafters of Model Rule 3.3, the lawyer’s unique position as the presenter of evidence and advocate demands that he be candid with the court,109 a duty at the very least coextensive with a witness’ duty to tell the truth under oath.

IV. REMEDIES AVAILABLE TO A DEFENSE LAWYER

A. CLIENT PERSUASION

All courts and commentators agree that a lawyer in this situation ought to attempt to dissuade the client from committing perjury at trial. 112 This involves informing the client of suspicions that the client may be considering perjury, a discussion of attorney duties to the court, and a reminder of the consequences of perjury. In most situations where the attorney suspects that her client is preparing to lie, the lawyer acts in the client’s best interests in counseling the client not to do so, irrespective of whether the client’s testimony is actually true. This principle is prominent in Nix,113 where the defendant planned to claim that he saw “something metallic” to bolster his self-defense claim.’ 14 As counsel in that case pointed out, the defendant could have made out his self-defense claim without the additional fabrication; the lie actually harmed the defendant’s chances of acquittal because no weapon was found on the scene. 115 Where a client, such as the defendant in Nix, insists on lying because he believes it will benefit him to do so, the attorney should, before going any further, warn the defendant that a falsehood or embellishment will, if exposed, only make him seem more guilty to the trier of fact. Thus, in such circumstances, it is both beneficial to the defendant and ethical for the attorney to satisfy the duty of candor. In those cases, the attorney, in attempting to persuade the client not to lie, can couch her advice to get across to the defendant that he is much better off not fabricating details. Such details are often extraneous, uncorroborable, or contradictory to the defendant’s case.

B. DISCLOSURE TO THE TRIBUNAL

One obvious solution to the problem, given the text of Model Rule 3.3, is disclosure of the prospective perjury to the tribunal. 119 This approach follows the premise that the attorney has a duty as an officer of the court to disclose imminent perjury to the tribunal, putting the responsibility of inquiry and reprimand in the hands of the judge.120 The major benefit of direct disclosure is its “involvement of the judge as a neutral arbiter in testing whether or not defense counsels’ conclusion that the defendant does in fact intend to give perjured testimony is justified, and if so, what to do about.”121 Direct disclosure requires the judge, rather than the client’s attorney, to question the client in any necessary manner.122 The clearest defense of this approach comes from Judge Marvin Frankel, who values the search for truth as the paramount objective in a criminal trial.123

There are several critiques to this response. First, although lawyers have duties as officers of the court to report such potential misconduct, they also have a duty to their client.124 Disclosure of intended perjury may cause irreparable harm to the client-attorney relationship. 125 Second, there is a constitutional question – a lawyer cannot waive rights for her client. 126 The client has the constitutional right to testify on his own behalf.127 Further, the issue here is prospective client perjury. The client has not actually committed a crime in the mere contemplation of perjury. Simply because a lawyer believes perjury is prospective does not means that her client’s constitutional rights may be infringed upon. 128

C. THE DO NOTHING APPROACH

only constitutional solution to the perjury trilemma.129 Dean Freedman interprets ABA Formal Opinion 87-353 to hold that, “in the Committee’s view, the lawyer is permitted to go forward in a way that will not reveal the client’s perjury to the court. As we have seen, the only way to do that is to present the client’s testimony in the normal manner.”130

If the lawyer takes any action to treat this testimony differently from other evidence, it is clear that there will be adverse consequences for the client. 131 The justification for this approach is that it puts the client’s constitutional rights at the forefront of the lawyer’s work.132 This is especially important given that in this situation, the client has only, at most, threatened to commit perjury. No actual crime has been committed. 133

The major criticism of this approach is that, although there is a clear right to effective counsel, there is no right to commit perjury.134 The Court in Nix, held that “whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely.”135 Freedman counters this by arguing that this is not lawyer-sanctioned perjury as long as the lawyer “uses her knowledge of the perjury to make ongoing, good faith efforts to dissuade the client from committing it, and the lawyer then proceeds with the perjury only under the compulsion of her systemic role.”136 Many commentators have dismissed this rationalization as an inappropriate use of selective ignorance.137 Judge Frankel termed this a “crass and pernicious idea, unworthy of a public profession.”138 This rationalization may allow a lawyer to justify her non-action to herself, but this approach seems to render the Model Rule useless. 139 It must be noted that no court has endorsed this view. 140

D. REFUSAL TO CALL THE CLIENT TO THE STAND

testimony by refusing to call the client to the stand. The primary argument in support of this position is that “an attorney has an ethical obligation not to participate in the presentation of perjured testimony and the defendant has no right to commit perjury.”141 The lawyer thus prevents her client from presenting perjured testimony to the tribunal and can still otherwise advocate for the client’s cause. 142

The major criticism of such an approach is that the courts have clearly established a client’s constitutional right to testify. 143 Further, as stated earlier, given that perjury in this scenario is merely prospective and no actual crime has been committed, the client has clear rights upon which a lawyer may not infringe.44

E. THE NARRATIVE APPROACH

A fifth approach to the problem of potential client perjury has been termed the narrative approach. The narrative approach allows the lawyer to put the client on the stand and allow him to tell his story in a free narrative manner. 145 While this occurs, the lawyer does not engage in the testimony; she asks no questions of the client and presents no corroborating evidence. 146 The client is allowed to present his testimony to the court without help from the attorney. 147 In closing argument, the attorney does not and cannot rely on any of the client’s false testimony. 148

the constitutional right to testify is not accidentally infringed in a lawyer’s effort to comply with ethical standards. Further, this approach tempers the duty of counsel not to offer perjured testimony, because the lawyer has limited involvement with the presentation of the perjured testimony and she is not offering the lies to the tribunal directly.152 Finally, “if a client is advised that the narrative approach will have to be used, there is a good chance that the client will decide not to testify. On the other hand, if the client chooses to testify and makes a narrative statement, the attorney-client relationship will likely be preserved.” 153 Several courts have allowed this approach.154

This solution is also subject to several criticisms. Despite the fact that the client can still testify, the use of the narrative approach still infringes on attorney-client responsibilities.155 Attorneys have an obligation to represent their clients to the utmost. 156 The lack of questioning indicates a failure of the lawyer to question her client or aid him in providing testimony may limit the effectiveness of such representation. 157 Moreover, the narrative approach has been critiqued on the basis that the perjury is still obvious to the court and trier of fact. 158 Dean Lefstein himself has noted:

[If disclosure of a defendant’s intent to commit perjury will not violate the Sixth Amendment, permitting defendant to tell his or her story in a narrative fashion will not do so either. Admittedly, this latter procedure implicitly informs the court that counsel believes that defendant is testifying falsely, but this is obviously no more prejudicial to the defendant (and arguably less) than expressly telling a judge that a client plans to commit perjury.159

F. WITHDRAWAL

withdraw from the representation relationship. 161

In ABA Informal Opinion 1314, the Committee stated that the lawyer in a situation where the client has stated an intention to commit perjury at trial must advise the client that the lawyer may take one of two courses of action.162 Either the lawyer must withdraw prior to the submission of the false testimony, or, in the alternative, if the lawyer remains on as counsel and the client insisted on testifying falsely, the attorney must report to the tribunal the falsity of the testimony. 163

An important critique of this method is that it does not solve the problem; it just passes along the ethical dilemma to another attorney. 164 If a lawyer withdraws based on her “knowledge” of perjury, the replacement lawyer is then left in the same situation. 165 Further, it has been criticized for being no more than an ” `ostrich-like approach’ which does little to resolve the problem.”166

G. SEPARATE HEARING

A less frequently discussed approach to the client perjury problem is to conduct a separate hearing on the issue of the potential. Where the defendant’s attorney believes that she knows of the defendant’s intention to commit perjury, “the attorney should request a recess, and the court should conduct an ex parte, in camera hearing before a judge other than the trial judge, so that the confidences of the client are revealed only to a disinterested jurist.” 167

The benefit of such a scheme is that the approach allows the lawyer to have judicial support in her decision to disclose potential perjury with minimum prejudice to her client. 168 This keeps the judge in the prosecution case neutral. At least one appellate court has held that “once defense counsel had informed the court of the merits of his client’s case and the fact that his client intended to commit perjury, the proceedings should have been certified to another judge. The failure to do so has deprived the appellant of due process.”169

system, the notion of holding additional hearings regarding the sufficiency of client perjury and the best mode of dealing with the situation seems impossible. Second, the approach does not remedy the issue of prospective client perjury.170 Third, the approach does nothing to address the irreparable harm to the client-attorney relationship that could come from such a hearing. Additionally, the client is left without representation at this mini-trial. 171

Given these options, and their relevant critiques, what is a lawyer to do? The commentary to Model Rule 3.3 discusses three of the aforementioned options for the lawyer to use as she deems appropriate. These include: disclosure to the tribunal, 172 the narrative method,173 and withdrawal if the perjured testimony has been offered in court.174 The ABA list is hardly satisfactory. It merely reiterates the problem and leaves open possibilities available to lawyer-practitioners.175

specifically provide that a lawyer representation a criminal accused may not refuse to allow her client to testify even if the lawyer reasonably believes the testimony will be false.”180 This is consistent with the Committee’s statement that the requirements for the attorney under Rule 3.3 is secondary to court requirements and constitutional consideration of the right to testify.181

The Ethics 2000 recommendations take seriously the ideal that Model Rule 3.3 should be amended to list all possible options for a criminal defense attorney facing potential client perjury. These multiple options exist and are in use by criminal defense attorneys facing potential client perjury.182 Criminal defense attorneys who find themselves in this precarious situation must know what their options are, but because none of the options are ideal on their own, they must have the ability to review their options on a case-by-case basis. The recommendations reflect the lessons learned by the profession. A more specific listing of remedies available to lawyers would serve as a means of reminding lawyers of the remedies available to them when facing the dilemma of potential perjury by a defendant in a criminal trial, and explicitly advocating the use of a case-by-case determination for the appropriateness of which remedy to use.

CONCLUSION

BRIAN SLIPAKOFF* AND ROSHINI THAYAPARAN**

* J.D., Georgetown University Law Center, May 2003 (expected).

** J.D., Georgetown University Law Center, May 2003 (expected). The authors would like to express their thanks to Heather Boyd Marx and Erin M. Schiller for their support, guidance, and patience with this piece.

Copyright Georgetown University Law Center Summer 2002

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