# Honor Amoungst Thieves (Legal Q) **URL:** \ **Category:** Factual Questions\ **Created:** [January 27, 2005, 4:45am UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874 "2005-01-27T04:45:40Z")\ **Posts on this page:** 17\ **Page:** 2
**Author:** ![galt](https://avatars.discourse-cdn.com/v4/letter/g/35a633/32.png) [@galt](https://boards.straightdope.com/u/galt)\ **Post date:** [January 28, 2005, 2:26am UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/21 "2005-01-28T02:26:13Z")
> [@Agape](#): > > I have a statement. It’s supposedly crucial to my argument (in this case, a false alibi crucial to my defense). I challenge you to prove it false. > > If you do, well, that’s devastating to my case. It’s over. I’m done. I’m going to jail. > > If you fail to prove it false… > > I can say “ah ha! Since you didn’t prove it false, then it must be true.” Or you could say “ah ha! Since you didn’t prove it false, there is a _chance_ that it’s true, therefore you have your reasonable doubt about my client’s guilt!” Presumably, **Nametag** got to the crux of the matter and pointed out that even if I haven’t claimed the alibi is true, I’ve still presented evidence that I know to be false. **Bippy’s** point is a good one, too. Can we really say what the lawyer **knows** in this situation? If he has any reason whatsoever to believe his client is claiming to be guilty when he’s not, can he reasonably claim ignorance as to whether or not his client is **actually** guilty? Or is this the kind of twist that could only ever come into play in the last 15 minutes of Law & Order? ---
**Author:** ![galt](https://avatars.discourse-cdn.com/v4/letter/g/35a633/32.png) [@galt](https://boards.straightdope.com/u/galt)\ **Post date:** [January 28, 2005, 2:50am UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/22 "2005-01-28T02:50:38Z")
Furthermore (and sorry for the double post), aside from the possibility that the client is lying and saying he’s guilty when he’s not, there’s the possibility that the client is simply mistaken. I once got into a car accident and apparently told the police that the light was red when I went through it. So they wrote me a ticket for running the light. Later, I realized that I hadn’t actually seen the red light, but rather assumed that it was red due to the cross-traffic bearing down on me as I went through the intersection. While I was probably correct to say the light was red, I didn’t actually **know** it for sure. This made me wonder if I could successfully fight the ticket by saying that the only evidence that I ran the light was my own statement, but that I can’t honestly testify to it because I don’t know it’s correct. Anyway, that’s a situation where, had there been a lawyer involved, I might have told him at one point that I was guilty, but actually been mistaken about it. ---
**Author:** ![threemae](https://avatars.discourse-cdn.com/v4/letter/t/5f9b8f/32.png) [@threemae](https://boards.straightdope.com/u/threemae)\ **Post date:** [January 28, 2005, 2:59am UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/23 "2005-01-28T02:59:58Z")
> [@C K Dexter Haven](#): > > and one of the eye-witnesses was a copy who apprehended the accused at the scene… Indeed, the output of the new Xerox machine installed in my office last month is quite incredible. Those little pieces of paper, in addition to being an integral part of the criminal justice system, will collate itself and run small erands. ---
**Author:** ![Nunavut\_Boy](https://avatars.discourse-cdn.com/v4/letter/n/e95f7d/32.png) [@Nunavut\_Boy](https://boards.straightdope.com/u/Nunavut_Boy)\ **Post date:** [January 28, 2005, 3:09am UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/24 "2005-01-28T03:09:51Z")
Who’s to know what the accused told the lawyer in the first place? If a client admits his guilt his lawyer, and no one else, what’s stopping the lawyer from just ignoring what his client said about his guilt? His own personal ethics? Surely some unethical lawyers would not have any qualms presenting an alibi they know to be false if they know they can’t get caught. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 28, 2005, 3:38am UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/25 "2005-01-28T03:38:41Z")
> [@](#): > > Who’s to know what the accused told the lawyer in the first place? If a client admits his guilt his lawyer, and no one else, what’s stopping the lawyer from just ignoring what his client said about his guilt? His own personal ethics? Surely some unethical lawyers would not have any qualms presenting an alibi they know to be false if they know they can’t get caught. IANAL, but my understanding is that lawyer’s are not immune from failing to diclose knowledge of a felony if they know of it before it occurs. So you can tell your lawyer you murdered your spouse and your lawyer is obligated not to share this knowledge with anyone else. But if you then tell your lawyer you plan of taking the stand and swearing you didn’t commit the crime, your lawyer now has knowledge that you plan to commit perjury (a felony) and is liable if he lets it occur. I think it’s unlikely you’ll find a lawyer who’s unethical enough to violate the law but is willing to risk himself on your behalf by becoming an accessory. ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [January 28, 2005, 6:11am UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/26 "2005-01-28T06:11:47Z")
> [@Nunavut Boy](#): > > Who’s to know what the accused told the lawyer in the first place? If a client admits his guilt his lawyer, and no one else, what’s stopping the lawyer from just ignoring what his client said about his guilt? His own personal ethics? Surely some unethical lawyers would not have any qualms presenting an alibi they know to be false if they know they can’t get caught. I repeat, a lawyer presenting false testimony is trusting a known criminal and liar with his career. If the defendant gets arrested again, he’ll roll over on his old lawyer in a heartbeat if he thinks it’ll get him a deal. This is what keeps some lawyers on the straight and narrow – they know better than anyone else that their clients can’t be trusted. ---
**Author:** ![Sublight](https://avatars.discourse-cdn.com/v4/letter/s/439d5e/32.png) [@Sublight](https://boards.straightdope.com/u/Sublight)\ **Post date:** [January 28, 2005, 11:49am UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/27 "2005-01-28T11:49:16Z")
> [@galt](#): > > No, you misunderstand my point. It seems like if you can say, “I’m not claiming he’s innocent, I just challenge you to prove his guilt,” you should be able to say, “I’m not claiming his alibi is necessarily true, I just challenge you to prove it’s not.” > > Apparently you can’t say that, though, and I’m not clear on why not. IANAL, (my legal training is confined solely to reading threads on law here) so this is pure speculation. I would guess that the prosecution would object on the grounds that it’s irrelevant. The state is attempting to prove that the defendent did X, not that the defendant didn’t do A,B or C. If the defense attorney were to demand that the prosecution disprove hypothetical alibis without actually claiming any of them as real, the judge would probably instruct the jury to ignore them and give the attorney a warning to knock it off. It’s also probably unnecessary. If your hypothtical alibi is reasonably plausible in the face of the prosecution’s evidence, then it doesn’t sem possible that they could have proven their case beyond a reasonable doubt, in which case it would be much more effective to simply attack the evidence on its own weaknesses. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [January 28, 2005, 1:45pm UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/28 "2005-01-28T13:45:59Z")
> [@Cliffy](#): > > Absolutely not. It could simply be that the accused was asleep alone at home when the crime was committed. There are a million situations in which innocents don’t have alibis and therefore the more appropriate defense is putting the Government to its case. I trust your right in general, but could you elaborate on the example? If you believe your client was alone at home when the crime occurred, wouldn’t you say as much in your closing statement? And wouldn’t saying this if you believed your client was guilty be perjury? Daniel ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 28, 2005, 5:04pm UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/29 "2005-01-28T17:04:28Z")
> [@galt](#): > > No, you misunderstand my point. It seems like if you can say, “I’m not claiming he’s innocent, I just challenge you to prove his guilt,” you should be able to say, “I’m not claiming his alibi is necessarily true, I just challenge you to prove it’s not.” > > Apparently you can’t say that, though, and I’m not clear on why not. Here’s the reason: when the defense lawyer says, “I’m not claiming he’s innocent, I just challenge you to prove his guilt,” he is demanding that the state present evidence to prove, beyond a reasonable doubt, every element of the crime. That is the state’s obligation. In essence, he is simply reminding the jury that the state has the burden of proof, and it’s a relatively high burden. The defense may simply remain silent through the entire trial, and expect a jury to return a “not guilty” verdict if the state has not proved their case. BUT - if a defense lawyer were to say, “I’m not claiming his alibi is necessarily true, I just challenge you to prove it’s not,” he’s is necessarily talking about evidence which _he_ has introduced. No longer is the focus on the state’s evidence – now we’re discussing evidence that the _defense_ has offered. If a lawyer offers any evidence, he must do so in good faith – he has a duty of candor towards the tribunal. When he offers alibi evidence, he must have a good-faith belief that it’s not false. > [@galt](#): > > Is the prosecution allowed to point this out to the jury? e.g. “pay attention to whether or not the defense argues using the defandant’s testimony… he’s legally bound not to use testimony he knows is false, so you can draw your own conclusions about him not mentioning it in his closing statement.” No, the prosecution may not mention this. In the same way, the prosecution may not argue to the jury, “See, the accused didn’t testify! Now, he has the right not to tesitfy, but draw your own conclusions about why he wouldn’t simply get on the stand and tell you what happened, if he’s really innocent.” > [@LHoD](#): > > I trust your right in general, but could you elaborate on the example? If you believe your client was alone at home when the crime occurred, wouldn’t you say as much in your closing statement? And wouldn’t saying this if you believed your client was guilty be perjury? What the lawyer says is not evidence. During the opening statements, the lawyer lays out for the jury what evidence he will present. Witness testimony is used to present evidence, drawn out by the lawyers’ questions. Finally, during closing, each lawyer presents an argument to the jury of what conclusions and inferences should be drawn from the evidence presented. **Cliffy** answered your question about a lawyer not presenting a positive case - simply holding the government to its burden. You’re now asking if you believed your client was alone at home, wouldn’t you say so in closing? No - because you’d be arguing a piece of evidence that was never presented. Remember - the defense never put on a case. The accused never testified that he was home alone, asleep. So you have no basis for making that claim during closing. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 28, 2005, 6:14pm UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/30 "2005-01-28T18:14:16Z")
The Supreme Court recognized some time ago that a Defnendant has no right to present a perjured defense. [http://supct.law.cornell.edu/supct/html/historics/USSC\_CR\_0475\_0157\_ZO.html](http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0475_0157_ZO.html) ---
**Author:** ![Merijeek](https://avatars.discourse-cdn.com/v4/letter/m/f05b48/32.png) [@Merijeek](https://boards.straightdope.com/u/Merijeek)\ **Post date:** [January 28, 2005, 6:46pm UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/31 "2005-01-28T18:46:47Z")
> [@smiling bandit](#): > > Yes, tell your lawyer _everything_. Every detail you can recall. Yes, they will represent you or will honorably decline and let you get someone else. Lawyers, good ones, will take you case and represent you zealously. But they can’t do that if they don’t know where you came from. They’re legally bound in the US not to ever disclose what you tell them (and Law n Order aside, violations are rare and viciously attacked). As an aside… Let’s say I tell my lawyer that, yes, I did toss that Girl Scout troop into a woodchipper, and he is so disgusted that I’m fairly certain he won’t do a good job defending me. In such a case, do I still get charged for the time I spent consulting with the lawyer? -Joe ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 28, 2005, 6:57pm UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/32 "2005-01-28T18:57:55Z")
> [@Merijeek](#): > > As an aside… > > Let’s say I tell my lawyer that, yes, I did toss that Girl Scout troop into a woodchipper, and he is so disgusted that I’m fairly certain he won’t do a good job defending me. > > In such a case, do I still get charged for the time I spent consulting with the lawyer? > > -Joe If he was smart, he charged you some money up front for the consultation. If he wasn’t . . . then he wasn’t. The next lawyer will probably ask you if you have seen other lawyers about the case. If you are looking at major prison time, no lawyer will waste time pursuing you for upaid legal fees anyway. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [January 28, 2005, 7:21pm UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/33 "2005-01-28T19:21:00Z")
> [@Bricker](#): > > **Cliffy** answered your question about a lawyer not presenting a positive case - simply holding the government to its burden. You’re now asking if you believed your client was alone at home, wouldn’t you say so in closing? > > No - because you’d be arguing a piece of evidence that was never presented. Remember - the defense never put on a case. The accused never testified that he was home alone, asleep. So you have no basis for making that claim during closing. Ah, okay. I thought attorneys could present pretty much whatever scenario they wanted in closing statements, and it was up to the jury to decide whether the evidence supported that scenario. I didn’t realize they had to be able to make a reasonable case that the evidence supported their scenario. I guess that should’ve been obvious to me, but it didn’t even occur to me that the restriction might be there :smack: . Thanks! Daniel ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 28, 2005, 7:21pm UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/34 "2005-01-28T19:21:30Z")
> [@Gfactor](#): > > The Supreme Court recognized some time ago that a Defnendant has no right to present a perjured defense. > > [Crispus NIX, Warden, Petitioner v. Emanuel Charles WHITESIDE. | Supreme Court | US Law | LII / Legal Information Institute](http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0475_0157_ZO.html) I think that’s an unfair characterization of _Nix_. _Nix_ simply stands for the proposition that a defendant’s Sixth Amendment right to effective assistance of counsel is not violated by his attorney’s refusal to assist him in the presentation of perjurious testimony. Defendants still have an absolutely right to testify in their own defense, even if their lawyer believes their testimony to be perjured. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 28, 2005, 9:20pm UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/35 "2005-01-28T21:20:59Z")
> [@galt](#): > > That’s kind of interesting. Presumably you would not be allowed to say something like, “I have statements from other parties that claim the defendant was across town when this crime occurred. Can you prove them wrong?” But isn’t that basically the same thing? Others have already responded to this point, but I’ll toss in my bit as well. I’ve got two comments. First, in the jurisdiction I work in, if a lawyer puts a statement like that to a witness, then the lawyer has to be prepared to back it up with at least some evidence. If the lawyer makes that kind of suggestion but then never leads any evidence to support it (which on this hypothetical the lawyer could not, because he/she knows it’s not true), then the judge can instruct the jury to ignore that question and answer in their deliberations, because there was no evidence to support it. You can’t just put unproven hypothetical facts forward and argue that you’ve raised a reasonable doubt. Even though the defence doesn’t have to prove their case, they must have at least some factual foundation supporting their position. They have to raise a reasonable doubt _based on the evidence before the court_, not on completely hypothetical explanations. (Other jurisdictions may handle this point differently, based on their trial procedures and rules regulating cross-examination.) Second, and more fundamentally, the overriding obligation on lawyers is that **we cannot mislead the court.** Making a suggestion like this, knowing that it is not true, would be an attempt to mislead. Technically it’s not suborning perjury, since the lawyer is not calling any evidence, but the clear intention of the example is to mislead the court into thinking that the accused may not have been present. That’s contrary to the basic professional obligation of a lawyer. If you’re caught doing it, there could be serious professional sanctions; in some jurisdictions, it might amount to obstruction of justice or the equivalent, depending on how broadly the jurisdiction in question defines obstruction. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 30, 2005, 1:53am UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/36 "2005-01-30T01:53:02Z")
> [@Bricker](#): > > I think that’s an unfair characterization of _Nix_. _Nix_ simply stands for the proposition that a defendant’s Sixth Amendment right to effective assistance of counsel is not violated by his attorney’s refusal to assist him in the presentation of perjurious testimony. Defendants still have an absolutely right to testify in their own defense, even if their lawyer believes their testimony to be perjured. Maybe you’re right. Though courts certainly read it to say that > [@](#): > > Trial counsel may not knowingly present perjured testimony. See Nix v. Whiteside, 475 U.S. 157, 174-75, 106 S. Ct. 988, 998, 89 L. Ed. 2d 123, 139-40 (1986); Iowa Code Prof’l Resp. DR 7-102(4), 7-102(7). When counsel knows a client has committed perjury or plans on doing so, counsel may reveal the perjury to the court. Nix, 475 U.S. at 174, 106 S. Ct. at 998, 89 L. Ed. 2d at 139; Iowa Code Prof’l Resp. DR 4-101(A). [http://www.judicial.state.ia.us/supreme/opinions/20020124/00-1924.asp](http://www.judicial.state.ia.us/supreme/opinions/20020124/00-1924.asp) And hey, the Court in [Harris v. New York](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=401&invol=222) said: > [@](#): > > Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. \*Nix \*cited \*Harris \*for the proposition, though it was not necessary to the holding. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [January 30, 2005, 3:25am UTC](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874/37 "2005-01-30T03:25:08Z")
Proposed ethical rule in my state: > [@](#): > > (a) A lawyer shall not knowingly: > > … > > (3)offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if > necessary, disclosure to the tribunal. 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. [Michigan Rules of Professional Conduct, Rule 3.3 (proposed)](http://www.michbar.org/directory/proposedmrpc.pdf) [Previous page](https://boards.straightdope.com/t/honor-amoungst-thieves-legal-q/286874.md?page=1)