Nix v. Whiteside: the Perjurious Client Dilemma- What Should Defense Counsel Do?
| Publication year | 1986 |
| Pages | 21 |
| Citation | Vol. 15 No. 1 Pg. 21 |
1986, January, Pg. 21. Nix v. Whiteside: The Perjurious Client Dilemma- What Should Defense Counsel Do?
Immediately before testifying, the criminal defendant tells the lawyer he is going to lie. What should the lawyer do? Should the lawyer rat on the client and tell the court the client is going to lie? Should the lawyer withdraw from the case? Should the lawyer prevent the client from testifying by threats to disclose the intended perjury and testify against the client? Should the lawyer just make one statement to the client: "Tell your story to the jury, Mr. Client"? Or, should the lawyer do nothing, put the client on the stand and question him as any other witness would be questioned?
The defense lawyer bears the burden of meeting conflicting ethical and constitutional duties in his or her defense of an accused in such a situation. The lawyer must maintain a duty of confidentiality with respect to disclosure of matters which would be embarrassing or detrimental to the client [DR 4-101(A)]. The lawyer is directed not to "knowingly reveal a confidence or secret of her client [or] use a confidence or secret of his client to the disadvantage of the client" [DR 4-101(B)(1) and (2)].
These commands are modified by the principle that a lawyer may reveal confidences or secrets when permitted under the Disciplinary Rules or required by law or court order. The lawyer may reveal the intention of a client to commit a crime and the information necessary to prevent the crime [DR 4-101(C)(2) and (3)]. Arguably, the statement of the client that he intends to commit perjury is a "confidence or secret" which the attorney may reveal under the Disciplinary Rules. However, the Disciplinary Rules under Canon 7 direct that the lawyer "not intentionally prejudice or damage his client during the course of the professional relationship...." [DR 7-101(A)(3)].
This duty of client loyalty is broader than the statutory attorney-client privilege and imposes upon the attorney a duty to maintain confidentiality regardless of whether the source of the detrimental information is the client or a third party [see, Ethical Consideration 4-4]. On the other hand, the lawyer has a duty to the court under DR 7-102(A)(3) to not "knowingly fail to disclose that which he is required by law to reveal." The lawyer "shall not knowingly use perjured testimony ..." [DR 7-102(A)(4)], and the lawyer "shall not counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent" [DR 7-102(A)(7)]. In addition, the defense lawyer has a duty under the Sixth and Fourteenth Amendments to the United States Constitution to render effective assistance to the accused in his defense.
If you find this confusing, do not feel alone. The clear principle that emerges from this maze of responsibilities is that the lawyer has conflicting duties when told by a client that he is about to lie under oath. The specific authorities designed to guide lawyers in resolving this problem are not helpful:
(1) Resort to ABA policy establishes that there is no officially approved ABA policy. The ABA has, however, articulated (but not passed) Defense Function Standard 7.7 and proposed Standard 4.7 to guide the lawyer in such situations. These standards require the lawyer to move to withdraw upon learning of the prospective client perjury and, if this motion is denied, to follow the narrative technique: "Tell your story to the jury, Mr. Client."
In addition, the standards provide that a lawyer should give an abridged closing argument and specifically not argue that the client's false testimony is credible. If the lawyer follows this course of action, the signal to the judge...
To continue reading
Request your trial