Criminal Justice Section  


Criminal Justice Magazine
Fall 2004
Volume 19 Number 3

When Do You Know the Defendant Is Lying?

By J. Vincent Aprile II

J. Vincent Aprile II, is a lawyer with Lynch, Cox Gilman & Mahan P.S.C. in Louisville, Kentucky, specializing in criminal law, both trial and appeal, and employment law and litigation. He recently retired after 30 years of service from the Kentucky Department of Public Advocacy where he served as that agency’s general counsel from 1982-99. He is a member of the Section’s Council, and current member and former chair of the Criminal Justice editorial board. He is also the author of the magazine’s “Criminal Justice Matters” column. For more than 25 years he has provided ethical advice to both public and private criminal defense lawyers across the country through private consultations and continuing legal education programs.

When a criminal defense lawyer concludes that his or her client intends to take the witness stand and commit perjury, defense counsel is confronted with ostensibly conflicting duties and obligations. First, counsel must recognize a duty to the client to provide effective, zealous advocacy and preserve the confidentiality of attorney-client communications. (American Bar Association Standards for Criminal Justice, The Defense Function, Standard 4-3.1(a), Establishment of Relationship, 3d Ed. 1993.) This normally includes assisting the client in presenting his or her own testimony should the client elect to do so. Second, a defense attorney has a duty to the court, the judicial system, and the legal profession to protect the integrity of the legal proceedings by not knowingly participating in the presentation of false evidence to the tribunal, including the client’s perjured testimony. (ABA Standards, The Defense Function, supra, Standard 4-7.5(a), Presentation of Evidence.) In this context, not only the criminal defense lawyer but also the criminal justice system as a whole is severely challenged to determine the appropriate procedural actions that will protect these competing
The complexities of the issues surrounding what actions the defense lawyer should take once he or she has determined that the criminal defendant will commit or has committed perjury during the trial have generated judicial and scholarly debate for many years. Consequently, it is imperative that defense counsel understand when and how a lawyer has sufficient knowledge of the client’s perjury to take action to prevent or remedy the defendant’s efforts to inject false evidence into the proceedings.
Often when criminal defense lawyers request ethical and legal guidance concerning a client’s intent to commit perjury, they are surprised to learn that the specific facts in their individual cases do not permit defense counsel to conclude the client’s purported testimony will be perjurious. In that situation, the lawyer has no duty to take actions to prevent fraud on the tribunal, despite counsel’s suspicions about the client’s untruthfulness.
“The reason why counsel believes that the defendant intends to testify falsely is an important threshold question because ‘[w]here ... the veracity or falsity of the defendant’s testimony is conjectural, the ethical dilemma does not arise.’ ” (Whiteside v. Scurr, 744 F.2d 1323, 1328 (8th Cir. 1984), rev’d on other grounds, Nix v. Whiteside, 475 U.S. 157, 106 S. Ct. 988 (1986), quoting Butler v. United States, 414 A.2d 844, 850 (D.C. 1980), quoting Johnson v. United States, 404 A.2d 162, 164 (D.C. 1979).)
A client’s unambiguous, unretracted statement that he or she intends to lie under oath undoubtedly satisfies the threshold requirement, absent extraordinary circumstances. Even in such a cut-and-dried situation, the lawyer’s intimate knowledge of the client’s idiosyncracies and foibles could produce a scenario in which the lawyer realizes or should realize that the defendant’s purported testimony is not false, rather the claim that he or she intends to testify falsely is the lie. Similarly, a client who has been found competent to stand trial may, in defense counsel’s judgment, be so mentally ill that in the client’s delusional system the truth is a “lie” and a lie is the “truth.” For such a defendant, defense counsel should discount the client’s labeling of the intended testimony as a lie. Thus, even an attempt to generate a bright line rule when the client “admits” he or she is going to lie on the stand fails as an immutable standard.
“The complex interaction of factors, which is likely to vary from case to case, makes inappropriate a blanket rule that defense attorneys must reveal, or threaten to reveal, a client’s anticipated perjury to the court.” (Nix v. Whiteside, supra, 475 U.S. at 189, 106 S. Ct. at 1005) (Blackmun, J., concurring).) For this reason, it may be more appropriate to focus on what information is never sufficient to meet the threshold requirement necessary to conclude the client has committed or will commit perjury at trial.

When the client’s story changes
Some criminal defense lawyers view a client’s change in the account of what happened, particularly when made in the course of confidential attorney-client communications, as a valid basis for concluding that the client intends to commit perjury. That type of analysis overlooks the reality of rapport building in the lawyer-client relationship. Perhaps the client assumed because he or she shot the victim it was “murder,” at least in the vernacular, even though the shooting was self-defense and not a criminal offense. Thus, the accused’s change in versions of what happened may be the result of initial ignorance, lack of sophistication, or any number of innocent mistakes. In this era where experts are exposing the false confessions criminal defendants made to the police, counsel should realize that a later, less incriminating admission by the client to his or her lawyer should not be automatically construed as a lie.
“A lawyer’s certainty that a change in his client’s recollection is a harbinger of intended perjury . . . should be tempered by the realization that, after reflection, the most honest witness may recall (or sincerely believe he recalls) details that he previously overlooked.” (Nix v. Whiteside, supra, 475 U.S. at 190–91, 106 S. Ct. at 1006) (Stevens, J., concurring).) Certainly prosecutors have no compunction about calling a witness whose in-court testimony varies dramatically from that witness’s prior out-of-court statements, often becoming more inculpatory of the accused with each new version. Those variances between prior out-of-court statements and trial testimony are the stuff of impeachment by prior inconsistent statements. Even when the defense in a devastating cross-examination has impeached the state witness’s credibility using prior inconsistent statements, trial judges and prosecutors seldom take action to try the government witness for perjury.
“[I]nconsistent statements by the defendant alone are insufficient to establish that the defendant’s testimony would have been false.” (Whiteside v. Scurr, supra at 1328.) As one court explained, “the record does not support an inference that defense counsel knew his client was going to commit perjury” where “counsel knew only that his client had made inconsistent representations to him about the possession of the gun.” (Butler v. United States, 414 A.2d 844, 850 (D.C. 1980).)
When a defense attorney has become familiar with the totality of the evidence in a particular criminal case, counsel may begin to suspect that the client’s account of his or her involvement in the charged offenses is untrue in light of all the conflicting evidence. Although that type of suspicion may be of great assistance as counsel explains to the client the problems presented by the client taking the stand to tell that story, those same suspicions are insufficient to justify the lawyer concluding that the client intends to commit perjury. “Mere suspicion” is “insufficient to establish that the defendant’s testimony would have been false.” (Whiteside v. Scurr, supra at 1328.) Defense counsel is not free to use suspicion, even though based on instinct or years of experience, as the basis for concluding that the client’s testimony will be false. “[I]t is crucial in this type of situation that the lawyer know for sure that actual perjury is involved; he must not merely suspect it.” (Commonwealth v. Wolfe, 301 Pa. Super. 187, 447 A.2d 305, 309 n.7 (1982).)
“Inconsistencies in the evidence or in the defendant’s version of events are also not enough to trigger” defense counsel’s duty to act to prevent client perjury, “even though the inconsistencies, considered in light of the [prosecution’s] proof, raise concerns in counsel’s mind that the defendant is equivocating and is not an honest person.” (Commonwealth v. Mitchell, 438 Mass. 535, 781 N.E.2d 1237, 1251 (2003).) Even the presence of compelling physical and forensic evidence implicating the defendant would not be sufficient to trigger the lawyer’s duty to act to prevent client perjury. (Id.)
Once defense counsel begins to review the incriminating evidence in the case to determine whether the client’s proposed testimony is true, counsel abandons the role of an advocate to become the judge and jury on the sole issue of whether the client is lying. Such a role is incompatible with the duties of the defense lawyer. A defense lawyer must evaluate the accused’s purported testimony against all the known evidence to provide the client with a strategic assessment of the benefits and disadvantages of taking the witness stand. But this critique of the believability of the client’s testimony never requires defense counsel to make a judgment as to the truthfulness of the defendant. In such a strategic review, the only question is whether, assuming the truthfulness of the testimony, it will survive the prosecutor’s cross-examination and the jury’s scrutiny.

Unclear standards
Courts and commentators have frequently attempted to formulate generic standards to tell defense lawyers when the client perjury problem has been exposed. However, most of these standards suffer from the ability of the lawyer to manipulate the key words of the standard to allow counsel, depending on subjective factors such as personal perspective and philosophy, either to view the client as a liar or an honest witness.
Good faith. One standard that has been judicially announced is “the firm basis in fact” standard that “mandates that a lawyer act in good faith based on objective circumstances firmly rooted in fact.” (Commonwealth v. Mitchell, 438 Mass. 535, 781 N.E.2d 1237, 1247 (2003).) The requirement that “a lawyer act in good faith” provides little or no assistance to the trial defense counsel who is concerned that his or her client’s testimony may amount to perjury. The criminal defense counsel who erroneously takes pride in never allowing a client to plead guilty once the client admits in confidence the commission of the charged offense, believes he or she is acting “in good faith.” The “good faith” shibboleth is particularly conducive to misuse in this context because it is equally compatible with ensuring the defendant’s right to testify and protecting the integrity of the judicial proceedings. In the final analysis, “acting in good faith,” judged on the basis of introspection, provides the defense lawyer with little assistance in determining whether the perjury threshold has been reached.
Objective circumstances rooted in fact. Equally unsatisfactory is the guidance provided by the requirement that the lawyer’s action be “based on objective circumstances firmly rooted in fact.” The language of this standard would appear to allow defense counsel to rely upon the state’s forensic evidence, such as hair and fiber findings, comparative bullet lead analysis, and serological results, to reject the defendant’s proposed testimony as perjury. Defense counsel could construe such often unreliable but admissible evidence as “objective circumstances firmly rooted in fact.” Despite mounting evidence that confessions and eye-witness identifications are not as reliable as once thought, defense counsel, acting in good faith, could view a client’s in-custody confession and the victim’s identification as “objective circumstances firmly rooted in fact,” mandating that counsel reject the defendant’s story of innocence.
The decision announcing this standard specifically noted that “the existence of strong physical and forensic evidence implicating the defendant would not be sufficient,” but allowed the defense lawyer to rely on the “substantial evidence produced by the [prosecution] that corroborated the defendant’s admission, including the defendant’s incriminating conduct and his inculpatory statements to others.” (Commonwealth v. Mitchell, supra, 781 N.E.2d at 1251.) Unfortunately, the language of the standard itself does not provide guidance as to which “objective circumstances firmly rooted in fact” are exempted or usable.
The irony of this standard is that a criminal defense lawyer who does not vigorously and competently investigate and challenge the scientific evidence, the in-custody confession, and the eye-witness identification is likely to rely on those untested “objective circumstances firmly rooted in fact” to conclude the client’s exculpatory testimony is untrue. Confronted with a strong prosecution case, many criminal defense lawyers immediately assume the defendant is guilty and the case untriable. With that mind-set, securing a plea bargain becomes the only way to represent effectively the criminal client. The defense attorney who adopts this perspective when evaluating the client’s purported testimony can, using the “objective circumstances” standard, easily rely upon the state’s case as a complete refutation of the truth of the defendant’s testimony at the first hint of possible perjury.
Posit a defense lawyer who learns from the client’s spouse that the client intends to lie on the witness stand. When the lawyer confronts the defendant with the accusation of intended perjury, the client denies both the intention and the statement to the spouse. But the lawyer, armed with the client’s supposed perjury admission, now carefully reviews the prosecution’s case and finds evidence in direct conflict with the client’s proposed testimony. Under the “objective circumstances” standard, defense counsel could easily conclude the client will testify falsely. To reach this conclusion, defense counsel will have to choose a third party’s word over the client’s denial and validate the state’s evidence as compelling or highly persuasive.
This type of fact-finding is inimical to the duties and obligations of a criminal defense lawyer because it requires counsel to function as an advocate against the client on the mere accusations of third parties, with no admission by the client to counsel that his or her testimony will be false. Although it could be argued that the “objective circumstances” standard does not mandate the lawyer in such a situation to decide the client plans to commit perjury, the standard does permit both the inquisition and the finding that the client plans to lie on the stand.
Indeed, when a standard directs a lawyer to “act in good faith based on objective circumstances firmly rooted in fact” to determine whether the client is going to commit perjury, that rubric requires defense counsel to be proactive and constantly evaluate any and all objective circumstances that could undermine the truthfulness of the client’s intended testimony. Criminal defense lawyers should not be required by the standards to serve as the first-line, proactive censors of the client’s purported false testimony. Instead, defense counsel should only function as a reactive censor.
Wisconsin decision provides guidance
Recently the Wisconsin Supreme Court addressed “[u]nder what circumstances do criminal defense attorneys have knowledge of prospective [client] perjury sufficient to trigger” a defense counsel’s duty to act to prevent client perjury. (State v. McDowell, 681 N.W.2d 500, 510 (Wis. 2004).) To provide guidance to its defense lawyers, the state court adopted the standard that, “absent the most extraordinary circumstances, criminal defense counsel, as a matter of law, cannot know that a client is going to testify falsely absent the client’s admission of the intent to do so.” (Id. at 511.) This standard is designed to exclude a multitude of factual situations in which a defense attorney might conclude the facts known to counsel required affirmative action to preclude the client from testifying falsely.
Equally important, this standard is reactive in nature, not proactive. Under this approach, the defense lawyer is not required to monitor constantly all the “objective circumstances firmly rooted in fact” that could undermine the credibility of the client’s proposed testimony. Instead, absent the most extraordinary circumstances, the lawyer has no knowledge of the client’s planned perjury unless the client specifically informs counsel of such an intent. Under this standard, even though there is no requirement that “the defendant’s admission . . . be phrased in ‘magic words,’ it must be unambiguous and directly made to the attorney.” (McDowell, supra at 513.)
An example of the “most extraordinary circumstances” given by the court was “a couple conclusively captured on video” robbing a bank “and apprehended at the scene of the crime who inform counsel of their intent to testify that they were never even at the bank.” (McDowell, supra, 681 N.W.2d at 511.) In this scenario, the standard would find no need for the clients to express to counsel an intention
to lie on the witness stand before counsel could conclude
the client planned to commit perjury.
This standard appears compatible with the ethical precept that “[a] lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false.” (MODEL RULES OF PROF’L CONDUCT R. 3.3(a)(1)(3) (2003).) In this context, “ ‘[k]nowingly’ denotes actual knowledge of the fact in question,” although “[a] person’s knowledge may be inferred from circumstances.” ((MODEL RULES OF PROF’L CONDUCT R. 1.0(f) (2003).) Under this rule, a defense attorney “should resolve doubts about the veracity of testimony or other evidence in favor of the client,” but counsel “cannot ignore an obvious falsehood.” (MODEL RULES OF PROF’L CONDUCT R. 1.0, cmt. 8 (2003).)
By requiring the client’s admission to counsel of an intent to lie on the stand as the trigger for the defense lawyer’s need to confront the client perjury issue, this standard preserves the attorney-client relationship, the role of defense counsel as zealous advocate, and the integrity of the judicial proceedings. “Except in the rarest of cases, attorneys who ‘adopt the role of judge or jury to determine the facts’ ”of client perjury “pose a danger of depriving their clients of the zealous and loyal advocacy required by the Sixth Amendment.” (Nix v. Whiteside, supra, 475 U.S. at 189, 106 S. Ct. at 1005) (Blackmun, J., concurring).) In seeking to ensure that defense lawyers do not facilitate the presentation of client perjury, law and ethics must avoid rules and procedures that force defense counsel to become their clients’ accusers rather than their clients’ defenders.


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