Formal Opinion No. 42 Client Who Intends to Commit Perjury in Criminal Case
| Pages | 153 |
| Publication year | 2021 |
67 CBJ 153. Formal Opinion No. 42 Client Who Intends to Commit Perjury In Criminal Case
We are asked to advise on the "duties of a criminal defense attorney who represents a client who either expresses an intention to commit perjury or has committed perjury in his or her testimony." We are also asked to address "the effect of the accused's constitutional right to testify" in a criminal case. Rock v. Arkansas, 483 U.S. 44 (1987); Accord, State v. Coleman, 14 Conn. App. 657, 544 A.2d 194, 203.
We believe that the Rules of Professional Conduct: (1) preclude a lawyer from participating in any way in the presentation or preparation of perjured testimony; and (2) require a lawyer to bring such testimony to the court's attention, even if the lawyer avoided any involvement or participation in the testimony.
Three different factual scenarios arise in the context of this question:
(1) the lawyer reasonably believes that the client intends to testify falsely, but the client has neither done so nor clearly stated an intention to do so;
(2) the client has clearly stated his intention to testify falsely at trial; and
(3) the client has testified falsely, and the lawyer knows the testimony to be false.
The question presented does not raise this scenario, and we mention it only briefly. In the absence of actual knowledge of false testimony, the Rules do not require any particular action by the lawyer. Rule 3.3(c), however, permits a lawyer to decline to offer evidence that the lawyer reasonably believes is false. The Rules define reasonable belief to mean that "the lawyer believes the matter in question and the circumstances are such that the belief is reasonable." Rules, Preamble. In this situation, the lawyer should attempt to clarify the factual situation with the client, and "should seek to persuade the client to refrain from perjurious testimony" if that is what the client intends. Comment, Rule 3.3. The lawyer should explain counsel's responsibilities on learning of false testimony, as set out below. We expect that this
discussion will usually dissuade the client from testifying falsely.
The Rules of Professional Conduct focus chiefly on the...
To continue reading
Request your trial