NCJ Number
62602
Date Published
1979
Length
20 pages
Annotation
ETHICAL AND LEGAL DILEMMAS FACING THE DEFENSE ATTORNEY CONFRONTED WITH POSSIBLE CLIENT PERJURY ARE EXAMINED.
Abstract
UNDER SECTION 7.7 OF THE AMERICAN BAR ASSOCIATION PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, IF A DEFENDANT INSISTS UPON TESTIFYING FALSELY, THE DEFENSE ATTORNEY MAY NOT LEND AID TO THE PERJURY AND MUST LIMIT HIS OR HER PARTICIPATION TO IDENTIFYING THE WITNESS AS THE DEFENDANT AND ALLOWING TESTIMONY BEFORE THE COURT WITHOUT DIRECT EXAMINATION OR THE USE OF THE FALSE TESTIMONY IN THE CLOSING ARGUMENT. IN THE CASE OF JOHNSON, ETC. V. UNITED STATES OF AMERICA, NO. 13055 (D.C. APP. JULY 2, 1979), THE COURT INSTRUCTED DEFENSE COUNSEL TO ABIDE BY THESE RESTRICTIONS WHEN IT BECAME KNOWN TO THE COURT THAT THE DEFENDANT WAS GOING TO TESTIFY TO FACTS CONTRARY TO INFORMATION PROVIDED BY PROSECUTION WITNESSES. UNDER SUCH CONDITIONS, THE DEFENDANT DECIDED NOT TO TESTIFY, AND HE WAS SUBSEQUENTLY CONVICTED BY THE JURY. THE DEFENSE APPEALED UPON THE GROUNDS THAT THE COURT HAD UNNECESSARILY RESTRICTED THE RIGHT TO THE DEFENDANT TO TESTIFY ON HIS OWN BEHALF WITH THE ASSISTANCE OF COUNSEL. THE DISTRICT OF COLUMBIA COURT OF APPEALS AGREED WITH THE DEFENSE THAT THE INCONSISTENCY BETWEEN THE INTENDED TESTIMONY OF THE DEFENDANT AND EVIDENCE ALREADY PRESENTED BY PROSECUTION WITNESSES WAS INSUFFICIENT TO ESTABLISH THAT THE DEFENDANT'S TESTIMONY WOULD BE FALSE. THE COURT'S RESTRICTIONS ON THE ASSISTANCE OF COUNSEL WERE, THEREFORE, UNWARRANTED. THE APPELLATE RULING LIMITS THE INVOLVEMENT OF THE COURT IN THE ENFORCEMENT OF ATTORNEY ETHICS. IT IS LEFT TO THE DEFENSE COUNSEL TO DETERMINE, ON THE BASIS OF PERSONAL KNOWLEDGE, WHETHER A CLIENT'S TESTIMONY IS PERJURED AND TO ACT ACCORDINGLY IN RESTRICTING PARTICIPATION IN PERJURED TESTIMONY, WITHOUT DAMAGING THE CLIENT BY TELEGRAPHING TO THE COURT THAT HE OR SHE BELIEVES THE TESTIMONY TO BE FALSE. FOOTNOTES ARE PROVIDED. (RCB)