Let’s say I abduct 11 wayward teams, behead them, mount their heads on mahogany plaques, and dissolve the rest of the corpse in a vat of nitric acid. I tell my lawyer I did all these things and laughed while I did it. Can my lawyer then build a case around my having not committed these crimes at all and ask questions knowing I will be perjuring myself in court? I know it’s ill-advised but is it legal?
I assume you wouldn’t be taking the stand.
Not a criminal lawyer here, but I remember the ethical rules as being that a lawyer cannot knowingly elicit false testimony. However, the accused has a constitutional right to testify, so the lawyer cannot refuse to call him.
One way out is to call him, and let him testify without questions - can’t remember the term for it. Another way is to withdraw.
What KidCharlemagne is talking about is suborning perjury. From the Wikipedia link:
What if a defense attorney puts his client on the stand, and under cross-examination the client tells a big fat lie that the defense attorney didn’t tell him to? Is the defense attorney obliged in any way to undercut his client’s testimony?
From a California article…
Bearflag70 got it: testifying in narrative. Generally, the defense attorney first has to attempt to dissuade the testimony, then seek to withdraw if it can be accomplished without harming the client. If he or she can’t do either, the defendant testifies in narrative.
From the comments on Model Rule of professional Conduct 3.3, Candor to the Tribunal:
Suborning perjury is a bad thing. But the key here is “knowingly”. Even if a client tells me “I killed this person”, I wouldn’t consider that to be knowledge that he did it. It’s expected that a large portion of your clients are probably guilty, a somewhat less large portion will admit they are guilty.
Some people also lie about stuff (false confessors get arrested and tried a lot more than is commonly believed) or tell their lawyer what they think they want to hear or what the court will want to hear.
Thus, I’d say that the “knowingly” part gives a lot more room for the lawyer to allow his client to testify to things of questionable veracity. That’s a good thing, because there is obviously a conflict between having your client tell the unvarnished truth and representing your client zealously. The line should be (and usually is) drawn very liberally re: the lawyer’s responsibility to make sure his client is being fully truthful.
ETR: remedial measures beter explained above.
ETA: but still important to get the difference between knowing someone is lying and really strongly suspecting it – like the diff between OJ and “beyond a reasonable doubt”
There’s also the concept of a noisy withdrawal. Client intends to lie on the stand and tells you so. You try to talk him out of it and he refuses.
You go to the judge, and tell him you have to withdraw. Judge says not a chance - trial has started, you can’t withdraw without a staggeringly good reason. Judge asks you why you want to withdraw, the night before your client is scheduled to testify. Your response is that you can’t tell him, but ethical reasons require your withdrawal.
The judge then knows what is going on, and may (or may not) let you withdraw. But in the end your client’s constitutional right to testify takes precedence over your ethical obligations. You just have to tread lightly and make sure you cover yourself.
It’s called allowing the witness to testify in narrative form. There would be no direct examination by his attorney, but opposing counsel–ie, the prosecutor in a criminal case, would be allowed to cross examine the witness. Obviously, the Judge and the Prosecutor will immediately know what’s up as soon as defense counsel proposes narrative testimony, and the witness will get shredded on cross, and likely found guilty as a result.
You can’t elicitn testimony that you know is false and furthermore you are advised to avoid a line of questioning in your Exam-in-Chief which could potentially elicit it.
Makes for an interesting time during the client conferance, especially where you suspect the guy is guilty, skirt around it.
Ohio’s ethical rules are similar to those mentioned above. A lawyer cannot knowingly submit perjured testimony, and must take corrective action if he’s surprised by it. That said, in six years as a prosecutor and eight as a magistrate, I’ve never seen anyone testify in narrative fashion. It’s more a law-school hypothetical than a real-world situation, IME.
So, let’s say if you really are guilty, should you really tell your lawyer everything, especially if the prosecution’s case is kind of weak to begin with? I know I’m probably wrong about this, but it almost sounds like there are some things that your lawyer is better off not knowing. This seems like the sort of things that the attorney-client privilege is supposed to prevent…
I’ve never seen it either. Most defendants who intend on lying on the stand will lie to their lawyer as well.
So, if I’m ever on a jury and the defendant testifies in narrative, I should assume he’s lying?
No, you should weigh the evidence (testimony) given, not the manner in which it is given.
Also, I would think testifying in the narrative would be something worked out before the testimony is given, so at the time the testimony is actually given, you don’t know if person actually lied or not.
IANAL, but if the defendent defendant testifies in narrative under those circumstances his defence counsel is also forbidden from mentioning anything in his testimony in closing.
Waffle Decider said:
If you tell your lawyer everything, then he can act to prevent you from being in a situation where you have to lie. If the case is weak, then he can cross examine and put on rebuttal witnesses to undermine the case, and not put the defendant on the stand at all.
Whereas if the prosecution has a strong case, lying might be the only defense you have, so lying to your lawyer might be prudent. That way he can’t undermine your lies by turning you in or otherwise acting ethically.
*Not a recommendation, just an analysis.
What if the client doesn’t tell the attorney ahead of time and then perjures themselves on the stand? Example: client tells attorney they were at the movies during the robbery.
Defense Attorney: Mr. Yoyo, where were you between 8pm and 10pm on the night in question.
Defendant: Wisconsin
Defense Attorney: :eek:
Ok, I do see where you’re coming from. What I was thinking was that if the prosecution has a strong case, this means they have enough evidence to prove that I did it no matter what I say, whereas if their case is weak, they may have no way to prove that I’m lying.
In any event, I’m surprised to learn that your own lawyer is basically required to out you to cover their own asses if they know that you have given false testimony, even for testimony solicited under questioning by the opposing counsel.