# Can a defense lawyer knowingly allow the defendant to perjure themselves? **URL:** \ **Category:** Factual Questions\ **Created:** [February 19, 2010, 6:29pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657 "2010-02-19T18:29:47Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![KidCharlemagne](https://avatars.discourse-cdn.com/v4/letter/k/ed8c4c/32.png) [@KidCharlemagne](https://boards.straightdope.com/u/KidCharlemagne)\ **Post date:** [February 19, 2010, 6:29pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/1 "2010-02-19T18:29:47Z")
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? ---
**Author:** ![Bearflag70](https://avatars.discourse-cdn.com/v4/letter/b/8e7dd6/32.png) [@Bearflag70](https://boards.straightdope.com/u/Bearflag70)\ **Post date:** [February 19, 2010, 6:34pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/2 "2010-02-19T18:34:53Z")
I assume you wouldn’t be taking the stand. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 19, 2010, 6:36pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/3 "2010-02-19T18:36:42Z")
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. ---
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [February 19, 2010, 6:39pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/4 "2010-02-19T18:39:33Z")
What **KidCharlemagne** is talking about is [suborning perjury](http://en.wikipedia.org/wiki/Subornation_of_perjury). From the Wikipedia link: [QUOTE=Wikipedia, which is another way of say some random person on the internet who may or may not have the expertise required to answer this question well. Really, I might as well have cited a Scott Turow novel] Subornation of perjury is a crime. It is also an offense for which an attorney can be disciplined, disbarred or jailed. Subornation is the circumstance where an attorney gets, or allows, another party to lie. If an attorney makes a false representation in court, that is also a crime and he could be subject to similar punishment as subornation. [/QUOTE] ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [February 19, 2010, 6:44pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/5 "2010-02-19T18:44:12Z")
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? ---
**Author:** ![Bearflag70](https://avatars.discourse-cdn.com/v4/letter/b/8e7dd6/32.png) [@Bearflag70](https://boards.straightdope.com/u/Bearflag70)\ **Post date:** [February 19, 2010, 6:57pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/6 "2010-02-19T18:57:16Z")
From a [California article](http://www.calbar.ca.gov/state/calbar/calbar_cbj.jsp?sCategoryPath=/Home/Attorney%20Resources/California%20Bar%20Journal/April2007&MONTH=April&YEAR=2007&sCatHtmlTitle=MCLE%20Self-Study&sJournalCategory=YES)… > [@](#): > > The Nix court discussed the viability of several different responses to a client’s anticipated perjury. When faced with this situation, an attorney’s first duty is to try to talk the client out of it. (Id. at 169.) Other acceptable courses of conduct include disclosure to the court after a client had given perjured testimony, and withdrawal when a client threatens to offer such testimony. (Id. at 170.) The court recognized, however, that withdrawal may raise issues regarding mistrial and potential double jeopardy claims. (Id.) > [@](#): > > The court cited Nix v. Whiteside for the proposition that attorneys cannot ethically present perjured testimony. (Id. at 619 [citing Nix v. Whiteside, supra, 475 U.S. at 166].) The court cited California Rules of Professional Conduct 5-200, California Business and Professions Code §6068, and ABA Model Rule 3.3 in support of an attorney’s duty of candor. (Id. at 619-20.) The court then discussed the various approaches available to a lawyer who has a client who wishes to perjure himself. (Id. at 620.) These approaches include full cooperation, persuading the client to tell the truth, “free narrative” testimony, disclosure to the court, moving to withdraw, and refusing to permit the client’s testimony. (Id.) The court concluded that the free narrative approach “represents the best accommodation of the competing interests of the defendant’s right to testify and the attorney’s obligation not to participate in the presentation of perjured testimony.” (Id. at 629.) ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [February 19, 2010, 7:15pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/7 "2010-02-19T19:15:03Z")
> [@villa](#): > > One way out is to call him, and let him testify without questions - can’t remember the term for it. 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. > [@Lumpy](#): > > 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 the comments on Model Rule of professional Conduct 3.3, Candor to the Tribunal: > [@](#): > > Remedial Measures > > [10] Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer’s client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer’s direct examination or in response to cross-examination by the opposing lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done — making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing. ---
**Author:** ![ivn1188](https://avatars.discourse-cdn.com/v4/letter/i/e480ec/32.png) [@ivn1188](https://boards.straightdope.com/u/ivn1188)\ **Post date:** [February 19, 2010, 7:15pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/8 "2010-02-19T19:15:16Z")
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” ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [February 19, 2010, 7:28pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/9 "2010-02-19T19:28:00Z")
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. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [February 19, 2010, 7:30pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/10 "2010-02-19T19:30:55Z")
> [@villa](#): > > 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. 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. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [February 19, 2010, 7:36pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/11 "2010-02-19T19:36:40Z")
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. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [February 19, 2010, 7:56pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/12 "2010-02-19T19:56:09Z")
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. ---
**Author:** ![Waffle\_Decider](https://avatars.discourse-cdn.com/v4/letter/w/77aa72/32.png) [@Waffle\_Decider](https://boards.straightdope.com/u/Waffle_Decider)\ **Post date:** [February 19, 2010, 7:57pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/13 "2010-02-19T19:57:06Z")
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… ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [February 19, 2010, 7:57pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/14 "2010-02-19T19:57:46Z")
> [@Elendil\_s\_Heir](#): > > 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. I’ve never seen it either. Most defendants who intend on lying on the stand will lie to their lawyer as well. ---
**Author:** ![Absolute](https://avatars.discourse-cdn.com/v4/letter/a/b2d939/32.png) [@Absolute](https://boards.straightdope.com/u/Absolute)\ **Post date:** [February 19, 2010, 9:33pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/15 "2010-02-19T21:33:00Z")
So, if I’m ever on a jury and the defendant testifies in narrative, I should assume he’s lying? ---
**Author:** ![Bearflag70](https://avatars.discourse-cdn.com/v4/letter/b/8e7dd6/32.png) [@Bearflag70](https://boards.straightdope.com/u/Bearflag70)\ **Post date:** [February 19, 2010, 9:51pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/16 "2010-02-19T21:51:27Z")
> [@Absolute](#): > > 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. ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [February 19, 2010, 9:59pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/17 "2010-02-19T21:59:10Z")
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. ---
**Author:** ![Irishman](https://avatars.discourse-cdn.com/v4/letter/i/b487fb/32.png) [@Irishman](https://boards.straightdope.com/u/Irishman)\ **Post date:** [February 19, 2010, 10:00pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/18 "2010-02-19T22:00:25Z")
**Waffle Decider** said: > [@](#): > > 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… 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. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 19, 2010, 10:05pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/19 "2010-02-19T22:05:38Z")
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: ---
**Author:** ![Waffle\_Decider](https://avatars.discourse-cdn.com/v4/letter/w/77aa72/32.png) [@Waffle\_Decider](https://boards.straightdope.com/u/Waffle_Decider)\ **Post date:** [February 19, 2010, 10:20pm UTC](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657/20 "2010-02-19T22:20:41Z")
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. [Next page](https://boards.straightdope.com/t/can-a-defense-lawyer-knowingly-allow-the-defendant-to-perjure-themselves/529657.md?page=2)