CRIMINAL DEFENDANT WHO PROPOSES PERJURY - RETHINKING THE DEFENSE LAWYER'S DILEMMA

• NCJ Number: 60070
• Journal: Criminal Law Review Dated: (1979) Pages: 481-508
• Author(s): N LEFSTEIN
• Date Published: 1979
• Length: 28 pages
• Corporate Author: Clark Boardman Company, Ltd
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: REPRINTED FROM HOFSTRA LAW REVIEW, V 6, N 665 (1978)

Annotation

THREE WAYS THAT HAVE BEEN PROPOSED FOR A DEFENSE LAWYER'S HANDLING OF A CLIENT'S REVELATION OF AN INTENT TO COMMIT PERJURY ARE CRITIQUED, AND A PREFERRED APPROACH TO THE ISSUE IS PRESENTED.

Abstract

IN A 1966 LECTURE, PROFESSOR MONROE H. FREEDMAN FIRST ADVANCED THE UNORTHODOX VIEW THAT A CRIMINAL DEFENSE LAWYER MUST PUT HIS CLIENT ON THE STAND TO TESTIFY, EVEN IF KNOWING THAT THE CLIENT WILL COMMIT PERJURY. TO DO OTHERWISE WOULD VIOLATE THE PRIORITY PRINCIPLE OF CONFIDENTIALITY IN LAWYER-CLIENT COMMUNICATIONS, REASONS PROFESSOR FREEDMAN. THE AMERICAN BAR ASSOCIATION'S DEFENSE FUNCTION STANDARDS PROPOSE THAT A LAWYER WHO KNOWS THAT A CLIENT IS BENT ON PERJURY SHOULD SEEK TO WITHDRAW FROM THE CASE; FAILING IN THIS, THE DEFENDANT SHOULD BE ASKED TO MAKE A STATEMENT TO THE TRIER OF FACT, AND THE FALSE TESTIMONY SHOULD NOT BE ARGUED TO THE JURY. A THIRD POSSIBLE APPROACH TO THE CLIENT-PERJURY PROBLEM IS FOR THE DEFENSE LAWYER TO DISCLOSE THE DEFENDANT'S INTENTION TO THE COURT. PROFESSOR FREEDMAN'S SUGGESTION OF TREATING THE PERJURIOUS CLIENT LIKE ANY OTHER WITNESS MEANS THAT THE ATTORNEY ASSISTS THE CLIENT IN BREAKING THE LAW. IN BOTH THE AMERICAN BAR ASSOCIATION'S APPROACH AND THE ALTERNATIVE OF REVEALING THE CLIENT'S PROPOSED PERJURY TO THE COURT, THE LAWYER'S CONDUCT IS TANTAMOUNT TO REVEALING PRIVILEGED INFORMATION, BECAUSE THE COURT INVARIABLY WILL ASSUME THAT THE CLIENT HAS CONFESSED GUILT TO THE DEFENSE LAWYER FOR THE CRIME CHARGED. THE RECOMMENDED APPROACH IS FOR THE ATTORNEY TO ADVISE THE DEFENDANT AT THE BEGINNING OF THEIR RELATIONSHIP THAT THE INTENT TO TESTIFY FALSELY IS NOT A PRIVILEGED COMMUNICATION. THIS ANTICIPATES THE CLIENT-PERJURY PROBLEM BEFORE IT MAY ARISE. UNDER SUCH CIRCUMSTANCES, SHOULD A CLIENT REVEAL THE INTENT TO COMMIT PERJURY TO THE DEFENSE LAWYER, AND THE ATTORNEY, EITHER IMPLICITLY OR EXPLICITLY, REVEALS THAT FACT, THE CLIENT CANNOT CLAIM TO HAVE BEEN DECEIVED. FOOTNOTES ARE INCLUDED. (RCB)