RHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald
ETHICAL DILEMMAS AT TRIAL
Client Wants to Present False Evidence or Testimony At Trial
R.I. RULES OF PROF’L CONDUCT R. 3.3: Candor Toward the Tribunal
- A lawyer shall not knowingly:
- make a false statement of material fact or law to a tribunal
- fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client
- fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or
- offer evidence that the lawyer knows to be false.
If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
- The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
- A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
- In the ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
- The operative language as contained in the code’s “TERMINOLOGY” section is subjective and a lawyer must have ACTUAL KNOWLEDGE OF FALSITY before she/he is obliged to do anything pursuant to Rule 3.3.
- Solution: Although it is dicta, in Nix v. Whiteside, 106 S. Ct. 988 (1986), the United States Supreme Court discussed several approaches and solutions when counsel knows that a defendant/witness is about to present false evidence. These include:
- Refuse to call the witness and present the false evidence;
- Withdraw from representation;
- Let the defendant/witness take the stand but decline to affirmatively assist the presentation of perjury by traditional direct examination and instead stand mute while the defendant/witness presents the false version in narrative form on his or her own;
- Refrain from discussing the known false testimony in closing argument;
- Remonstrate with the client before doing any of the above.
State v. McDowell, 681 N.W.2d 500 (Wis. 2004). Defense counsel committed error by substituting narrative form questioning for traditional questions and answers because defendant never expressly admitted his intent to testify falsely and counsel failed to inform defendant, opposing counsel, and the court of the change in questioning style prior to using narrative. However, the error caused no prejudice to defendant.
Larngar v. Wall, 918 A.2d 850 (R.I. 2007). Defendant filed a motion for post-conviction relief based on ineffective assistance of trial counsel. At trial, counsel believed that defendant intended to present perjurious testimony and attempted to dissuade him from testifying. When the defendant insisted, trial counsel threatened to withdraw. Then, without defendant’s knowledge, counsel brought the issue to the trial justice in an ex parte chambers conference. Under the trial justice’s advice, counsel continued with the trial and the defendant eventually agreed not to testify.
- R.I.S.C. held that the attorney’s actions did not fall outside the range of reasonable professional conduct and did not create a conflict of interest amounting to ineffective counsel.
- “Debate still continues about an attorney’s obligation when put in this very position,” where a defendant cannot be persuaded against presenting false testimony. Ultimately, though, a defendant has an absolute right to testify. Id. at 863-64.
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