III. False Testimony in Criminal Cases

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

III. False Testimony in Criminal Cases

As noted at the outset, the so-called perjury trilemma is most acute in criminal cases. A lawyer in a civil case presented with potential false testimony by a client can often avoid trouble by not calling the client as a witness. With the possible exception of some civil commitment proceedings, defendants in civil cases have no constitutional right to testify over their lawyers' objections.¹⁵⁹ Clients who want to testify in civil cases and who cannot persuade their lawyers to go along (as should be the case where false testimony is concerned) are left to discharge their lawyers. If a lawyer representing a criminal defendant knows that her client intends to commit perjury when he testifies, however, she may not be able to avoid the problem by refusing to call him as a witness. Although most criminal defendants consult with their lawyers when deciding whether to testify and generally follow their lawyers' advice, the decision to testify is the defendant's alone to make.¹⁶⁰ Defendants in criminal cases have a constitutional right to testify on their own behalf.¹⁶¹ Yet this right is not unbridled. Although criminal defendants have a right to testify on their own behalf, there is no constitutional right to commit perjury,¹⁶² nor does the Sixth Amendment right to the assistance of counsel compel a defense lawyer to assist or participate in the presentation of false testimony.¹⁶³ As the Supreme Court explained in the seminal case of Nix v. Whiteside,¹⁶⁴ whatever the scope of a criminal defendant's constitutional right to testify, "it is elementary that such a right does not extend to testifying falsely."¹⁶⁵

A. Lawyers' Options When Confronting Prospective False Testimony

Defense lawyers' first option when presented with clients who intend to testify falsely is to attempt to dissuade them from doing so.¹⁶⁶ Common sense compels this approach. Assuming that defense lawyers share relationships of trust and confidence with their clients, it is reasonable to believe that their efforts will succeed. In fact, there is a professional consensus that criminal defense lawyers are frequently successful in dissuading clients from committing perjury.¹⁶⁷ The many negative consequences of false testimony should be sufficient for a client to reject it as a tactic. And, at bottom, perjury usually does not work; the prosecution will have an array of evidence contradicting the false testimony. But if a lawyer is unable to persuade a client to testify truthfully or not at all, what is the lawyer's next step? If the lawyer cannot prevent the defendant from testifying, how can she avoid offering evidence that she knows to be false?

Withdrawal initially seems to be an appealing option for a criminal defense lawyer with a client bent on perjury, but it is often unavailable and is an imperfect solution in any event. First, the lawyer's withdrawal may prejudice the client, especially if it occurs close to trial. Second, withdrawal typically requires leave of court and a court may not allow a lawyer to withdraw, especially if trial is reasonably near. Courts often deny defense lawyers' motions to withdraw. If a court denies a lawyer's motion to withdraw, the lawyer must remain in the case even if she has good cause for terminating the attorney-client relationship.¹⁶⁸ Third, allowing lawyers to withdraw to avoid aiding client perjury solves nothing because replacement counsel will confront the identical problem. Once the client reveals his intent to commit perjury to the second lawyer, the cycle will start anew. Alternatively, the client may figure out— especially if the first lawyer was clear in explaining her ethical duties during the course of her remonstrations with him—that he should be less honest with the second lawyer, so that she is unaware of his perjurious intent and puts him on the stand at trial in the mistaken belief that he will testify truthfully. In that case, the trial is tainted by perjury. Finally, it is unfortunately possible that the second lawyer may be willing to assist the client in testifying falsely where the first lawyer was not. Although extraordinarily rare, lawyers sometimes encourage clients to lie on the theory that the client's intended truthful testimony will not be as persuasive as fabricated testimony.¹⁶⁹

A common solution to the problem of client perjury in cases in which the defense lawyer knows that the client intends to testify falsely, cannot dissuade the client from so testifying, and cannot withdraw, is to allow the lawyer to present the client's testimony in narrative form.¹⁷⁰ The narrative approach allows the lawyer to put the client on the witness stand and ask him what he would like to tell the jury, or what he would like the jury to know, thus launching the client's narrative. The lawyer remains standing while the client testifies as if she were conducting a normal direct examination, but asks the client no questions. The lawyer may, both before and after the narrative, conduct a regular direct examination on subjects on which she expects the client to testify truthfully. In closing argument, the lawyer cannot rely on or discuss the client's false testimony. The lawyer cannot assist the client in preparing the narrative testimony.¹⁷¹

The rationale for the narrative approach is that it preserves the client's constitutional right to testify without implicating defense counsel in the client's perjury. There are glaring flaws in the narrative approach. First, there is no constitutional right to commit perjury. Whether perjury comes in narrative form or in traditional question and answer format is irrelevant—the testimony is false regardless. Second, the defense lawyer remains implicated in the client's false testimony. The client could not testify falsely but for the defense lawyer calling him as a witness. The fact that the lawyer asked one question that elicited false testimony rather than several is immaterial. Third, the narrative approach does not safeguard the client's confidentiality, because it clearly alerts the judge and prosecutor that perjury is imminent. As a general rule, the lawyer's shift to narrative questioning is also likely to signal to the jury that something is amiss, either instantly or upon reflection, when jurors realize that the lawyer did not mention the client's exculpatory testimony in closing argument.¹⁷² If the lawyer's shift to narrative questioning does not alert the jury to the defendant's perjury, then the trial is tainted if jurors accept as true any part of the defendant's false testimony. Fourth, and although indisputably the defendant's fault for insisting on testifying falsely, the patent dishonesty of narrative testimony may cause the court to find that the defendant committed perjury and thus enhance any sentence ultimately imposed for the underlying crime.¹⁷³

The ABA's Standing Committee on Ethics & Professional Responsibility rejected the narrative approach in Formal Opinion 87-353.¹⁷⁴ Various jurisdictions agree that defense lawyers may not present false testimony by their clients in any form, so that a defense lawyer's failure to present a client's false testimony does not work a constitutional deprivation.¹⁷⁵ The Model Rules do not permit lawyers to employ the narrative approach. The Model Rules do, however, acknowledge that because of constitutional considerations the narrative approach remains an option for criminal defense lawyers in some jurisdictions. As a comment to Model Rule 3.3 explains:

In some jurisdictions . . . courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements.¹⁷⁶

Notwithstanding the final sentence of the comment, it is generally acknowledged that the narrative approach does not relieve defense lawyers of the obligation to take reasonable remedial measures following clients' false testimony, including disclosure to the tribunal.¹⁷⁷ But this view of the narrative approach and the lawyer's associated duty is questionable at best given the language of the comment and considering that the narrative approach itself discloses the client's perjury. It is redundant to require the lawyer to disclose the client's perjury to the court after the client's narrative and it is especially so if the court engaged in a colloquy with the client before the client testified. Any judge who hears narrative testimony by a criminal defendant knows full well why the defendant is testifying in that fashion. If the lawyer moved to withdraw relatively close in time to the defendant's narrative testimony, the motion to withdraw alone was probably enough to inform the court that the defendant intended to testify falsely.¹⁷⁸ That is certainly true where the defense lawyer obliquely stated in the motion that her professional responsibilities or ethical duties required her withdrawal. As for other possible remedies, post-narrative withdrawal by a defense lawyer serves no purpose. At that point the narrative testimony is in evidence. For that matter, the lawyer arguably remedied the client's perjury by not referring to the narrative testimony or not arguing those "facts" in closing argument. Thus, a compelling argument can be made that lawyers who properly employ the narrative approach have fulfilled their responsibilities under Model Rule 3.3(a)(3). Nothing more should be required of them.

B. Illustrative Narrative Cases

Commonwealth v. Mitchell¹⁷⁹ is now the leading case on the narrative approach to client perjury. The defendant, Curtis Mitchell, was accused of an extremely cruel double homicide. Mitchell allegedly made a number of incriminating statements concerning the murders, and his behavior following the murders further suggested his culpability. At the same time, he had an alibi...