Testify in The Narrative - true?

[jdc]

On a old "The Practice" show, a defendant reveals his intention to lie on the stand to his defense attorney, but insists on testifying.

The defendant is allowed to testify, but must do so "in the narrative", with no questions from his defense attorney, because of the duty of the defense attorney not to support perjury or something.

(1) Is this accurate representation of trial law?

The judge does not give the jury any more information about the unusual mode of testimony, save "it is a bit unusual but sometimes it is done this way".

(2) If you were a juror on such a case, and knew the real reason for the unusual mode of testimony, would you be obligated to go to the judge and disqualify yourself?

I suspect that the juror should disqualify himself, even if the "testify in the narrative" is done for other reasons and does not necessarily mean a defense attorney suspects perjury, or even if "The Practice" writers made the whole scenerio up.

[Hamlet]

O.K., if you have the time, inclination, and ability, I think Maddox v. State, 613 S.W.2d 275 (Tex.Cr.App., 1980) gives a very good review of the issue, as well as being a fascinating factual situation. In replying to your questions, I'll be quoting liberally from it.

In Maddox, the defendant had told his lawyers that he was in another room when a jailhouse murder was occurred, basically he said he had an alibi defense. In the middle of trial, the defendant began to criticize the testimony of State's witnesses, in effect saying that it didn't happen that way because he was there during the murder. The next day, the defendant told his attorneys that he was going to testify to the alibi defense, and, when they confronted him, he "asserted that he had the right to take the stand and lie because the State's witnesses had lied. The appellant (the defendant) refused to discuss the details of his planned testimony. The attorneys advised the appellant not to take the stand and give perjured testimony. At some point, the appellant refused to discuss the matter any more." This left the attorneys in the tough spot you mentioned. After telling the judge about their problem, the attorneys acted for the rest of the trial as standby counsel while the defendant took the stand and perjured himself, called a couple other witnesses, and did closing argument by himself. He was convicted.

The Appellate Court then discussed the problems a defense attorney has with a perjurious defendant. They said the following:

The problem of representing a defendant who insists on testifying falsely has been called, correctly, one of the hardest questions a criminal defense lawyer faces.The attorney is faced simultaneously with a duty to represent his client effectively, a duty to protect his client's right to testify, a duty not to disclose the confidential communications of his client, a duty to reveal fraud on the court, and a duty not to knowingly use perjured testimony (as well as the possibility of criminal liability for perjury). The difficulty is increased by the defendant's right to put the prosecution to its burden of overcoming the presumption of innocence by proof beyond a reasonable doubt. "In practice, ... the duties have come to be in perhaps uncontrollable conflict." G. Hazard, Ethics in the Practice of Law 129 (1978). Experienced and conscientious people can come to different conclusions about the best way to deal with the conflict.

The Court went on to discuss the different ethical viewpoints and requirements, and concluded

It may be seen that there is no accepted solution to the problem of the perjurious client. The question is not whether the appellant's attorneys followed the only acceptable course, for no such course is established. The question is not even whether they followed the best course. The question is whether they fell below the constitutionally mandated standard of reasonably effective assistance of counsel.

The Court had no initial problems determining that it was perjury. They relied, in part, on the fact that the jury in this case was the ones who found the defendant guilty and did the sentencing, both without knowing for sure the defendant had perjured himself. Had the judge, who knew it was perjury, been the one who had been the finder of fact or sentencer, then it would have been a problem with the defense counsel telling him that the defendant was going to perjure himself. They then said that allowing the defendant to testify in the narrative was an acceptable way of handling the problem. So the handling of the perjurious testimony was fine. The Court, however, overturned the case on other grounds (that the defendant wasn't properly admonished about acting as his own attorney AFTER the perjury).

I guess this is all a longwinded way of getting to the answer to your questions. I just found it interesting.

!) Is this accurate representation of trial law?

Yes, but it very rarely happens. In a vast majority of cases where this is raised, the fact of the defendant's perjury is not so clear cut (they rarely admit that they will be committing perjury). In a majority of those cases, the defense attorney will put the defendant on without the narrative being necessary. However, when it is this obvious, narrative testimony is done.

2) If a juror knew?

I don't know, but, based on the statements the Court made in Maddox, it would be very troubling to an appellate court that the fact finder would know that the testimony was perjured. I would imagine the juror would have an obligation to tell the judge.

Let me know if you have any other questions. I found looking this stuff up fascinating.

[jdc]

Thanks for the very detailed and interesting response.

[psiclone]

Interestingly enough, at least by the Texas Disciplinary Rules of Professional Conduct, a situation may allow for perjured testimony, without a duty by the lawyer to disclose the perjury. Imagine a situation where a client will admit to drinking but not using drugs in a driving while intoxicated case. The client tells the lawyer that they will lie about using drugs. The lawyer tries to persuade the client not to commit perjury, but is not sucessful. The lawyer puts his client on the stand to testify and ask all the questions he needs and carefully avoids asking a question the client about the use of drugs while driving. On cross- examination, the prosecutor asks whether the client/defendant used drugs while driving and the denial/perjury is committed by the client. In that situation, there is a duty to try to get your client to correct or withdraw the evidence, but no duty exists to inform the court if the client will not do the right thing. A distinction is drawn between a lawyer who sponsors false evidence and a lawyer who merely knows of false evidence elicited by someone other than himself. Please see Rule 3.03, Comment 13, Texas Disciplinary Rules of Professional Conduct

[brianmelendez]

Originally posted by jdc
The defendant is allowed to testify, but must do so "in the narrative", with no questions from his defense attorney, because of the duty of the defense attorney not to support perjury or something.

The legal jargon is suborn perjury, meaning induce false testimony.