Representing a Criminal Defendant Who Intends to Commit Perjury at Trial: Caught Between a Rock v. Arkansas and a Hard Place

JurisdictionKansas,United States
CitationVol. 71 No. 9 Pg. 18-27
Publication year2002
Kansas Bar Journals
Volume 71.

71 J. Kan. Bar Assn. 9, 18-27 (2002). Representing a Criminal Defendant who Intends to Commit Perjury at Trial: Caught Between a Rock v. Arkansas and a Hard Place

Kansas Bar Journal
71 J. Kan. Bar Ass'n, October 2002, 18-27 (2002)

Representing a Criminal Defendant who Intends to Commit Perjury at Trial: Caught Between a Rock v Arkansas and a Hard Place

Rick Kittle, Representing the Criminal Defendant who Intends to Commit Perjury at Trial: Caught Between a Rock v. Arkansas and a Hard Place, J. Kan. Bar Ass'n, October 2002, 18-27

By Rick Kittel

This article addresses the problems faced by a criminal defense lawyer when confronted by a client who indicates that he wishes to testify at his trial and that his trial testimony will be false. Case law from Kansas and other jurisdictions will be examined, but it must be remembered that the individual states have the authority to define the applicable standards of professional conduct for attorneys[1] and one must look to the rules of the appropriate individual jurisdiction for guidance as to what is ethically required in that jurisdiction.[2]

I. Introductory Hypothetical

The defendant, Daniel Delgado, has been charged with the robbery of money from a convenience store cash register. The store clerk, Cathy Clark, told police that she was alone in the store at about 11 p.m., on the night of the robbery. She went to an office in the back of the store. While in the office she heard a bell ring, indicating that a customer had entered the store. Clark left the office and headed to the front counter. As she walked through the store she saw the customer reach over the counter and hit a key on the cash register, opening the cash drawer. The man then reached in the drawer a couple times and grabbed bills. Clark rushed to the register and grabbed the man's wrist as he was reaching into the cash drawer. The man grabbed Clark's arm, loosened her grip on him, and pushed her away. He then ran from the store. Clark only saw the man for a few seconds and she gave the police a vague description of the man and the clothes he was wearing. It was later determined that only $80 had been taken from the register.

Police combed the area and about an hour after the robbery, as two officers were driving by a house a few blocks from the convenience store, they saw several men standing in the front yard talking. One of these men appeared to match the description provided by Clark. As the police approached the man, he began to run from them. After a short chase on foot, the police caught the man. The man identified himself as Daniel Delgado, and a computer check revealed that Daniel Delgado had an outstanding arrest warrant for traffic violations. Delgado had $100 in cash on his person. Delgado was arrested and the police took him to the convenience store where Clark looked at him and told police that she was fairly certain that he was the man that had taken the money from the register.

Arthur Andrews is an attorney who was appointed to represent Delgado. Andrews met with Delgado in jail and Delgado acknowledged that he had a prior conviction for robbery of a liquor store. Delgado denied that he had committed the robbery of the convenience store, but admitted to Andrews that he had been in the convenience store at about 10 p.m., an hour before the robbery. Delgado believed that was probably why Clark recognized him. He told Andrews that the $100 in cash he had on his person when he was arrested was the proceeds from a marijuana sale he had made earlier in the evening. Delgado told Andrews that if the store had a surveillance video it would show him in the store at 10 p.m., and show that he was not the person who robbed the store an hour later. Andrews checked at the store and was told that the video surveillance system in the store was not working properly so there was no videotape of the events in the store on the evening of the robbery. At a subsequent meeting in jail, Andrews related this information to Delgado. Delgado became upset. He feared that the prosecution would try to introduce evidence of his prior conviction for the liquor store robbery. Delgado told Andrews that in the absence of a videotape of the crime, he could not admit that he had been in the store on the evening of the robbery, because such evidence would be too incriminating. He told Andrews that he intended to take the stand at his trial and tell the jury that he had not been in the store that evening. He also told Andrews that he would enlist friends that he had been with that evening to create an alibi.

II. Competing Constitutional Rights and Obligations of Professional Responsibility

The preceding hypothetical illustrates one of the thorniest problems that may confront a criminal practitioner, client perjury. At the heart of this problem are the competing obligations of professional responsibility the criminal defense lawyer must uphold and the constitutional rights, which protect an accused. Rock v. Arkansas[3] holds that a criminal defendant has a constitutional right to take the witness stand and testify in his own defense. Moreover, a criminal defendant has a constitutional right to be represented by counsel.[4] In Nix v. Whiteside,[5] however, the U.S. Supreme Court held that a criminal defendant has no constitutional right to testify falsely or to enlist the assistance of an attorney in planned perjury. An attorney has a professional responsibility obligation to "abide by the client's decision, after consultation with the lawyer, as to ... whether the client will testify."[6] An attorney also has an obligation to refrain from revealing confidential information relating to his representation of a client, but the attorney may reveal such information as he reasonably believes necessary to "prevent the client from committing a crime."[7] He also has a duty of candor to the tribunal requiring that he not knowingly "offer evidence that he knows to be false."[8] He may, however, refuse to offer evidence he reasonably believes is false.[9] An attorney must withdraw from representing a client if "the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent."[10]

Getting back to our hypothetical, Delgado has, in confidence, told Andrews that he wants to testify at his trial, and that he intends to lie by testifying to the jury that he was not in the store at all on the evening of the robbery. Delgado has also told Andrews that he intends to enlist others in carrying out this fraud by manufacturing alibi testimony. This knowledge clearly puts Andrews in a difficult spot. He has an obligation to be loyal to Delgado and abide by Delgado's desire to testify. After all, Delgado has a constitutional right to testify at his trial. Andrews must also keep confidential the information that Delgado has given him. On the other hand, Andrews cannot offer evidence at trial that he knows to be false and cannot assist Delgado in doing so. What, then, should Andrews do?

III. Persuading the Client Against Perjury

It is generally recognized that when an attorney knows, or even suspects, that his client is contemplating perjury, he should attempt to persuade the client from committing perjury.[11] In attempting to persuade the client against perjury, the following information might be helpful. The attorney should advise the client that perjury is a crime and that by testifying falsely the client might be subjecting himself to a criminal charge of perjury. If applicable under the facts of the case, the attorney should tell the client why the perjured testimony will not be believable to the finder of fact, thereby damaging the defense case. The client should be made aware that he will be cross-examined which might make the perjury apparent to the jury. He should also be advised that if he is convicted, his sentence might be enhanced if the judge believes he committed perjury. In the federal setting, sentencing guidelines mandate sentence enhancement if the judge believes the defendant has committed perjury during the course of the prosecution.[12] Similarly, the Kansas Supreme Court has held that under the former indeterminate state sentencing scheme defendants who lie under oath can have their sentences enhanced if that fact is relevant to their capacity for rehabilitation.[13] More recently the Kansas Court of Appeals held that perjury by a criminal defendant is an appropriate factor to be considered in granting an upward departure sentence.[14] When an attorney "knows" that the client expects assistance in committing perjury or other acts not permitted under the rules of professional conduct, he must consult with the client regarding the relevant limitations on the attorney's conduct.[15] Therefore, when an attorney knows that his client is bent on perjury, he must advise the client of the consequences of committing perjury, including the attorney's professional responsibility obligations to seek withdrawal[16] and to disclose this information to the tribunal.[17] This raises the question of how an attorney "knows" that his client intends to commit perjury.

IV. "Knowing" the Client Intends to Commit Perjury

The Comment on perjury by a criminal defendant following KRPC 3.3 says, "[t]he most difficult situation, therefore, arises in a criminal case where the accused insists on testifying when the lawyer knows that the testimony is perjurious."[18] In Nix v. Whiteside[19] Justice Brennan, in a concurring opinion, noted that an attorney who acts upon his belief that his client intends to commit perjury has adopted the role of the fact finder in the case, thereby jeopardizing the "zealous and loyal advocacy required by the Sixth Amendment." Accordingly, reaching the conclusion that a client intends to commit perjury should not be taken lightly.[20] Under what...

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