The perplexing problem of client perjury

Fordham Law Review

Volumn 76, Issue 3, 2007, Pages 1707-1744

  Perrin, L Timothy ^a  

^a PEPPERDINE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 39349110346     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (310)

1. See Fed. R. Evid. 603 (stating that "every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation").
2. See Judicial Council of Cal., California Jury Information, http://www.courtinfo.ca.gov/jury/stepl.htm (last visited Oct. 27, 2007). Jurors in California state court must take the following oath: "Do you, and each of you, understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?"
3. Id.
4. See Fed. R. Evid. 102, 611(a)(1).
5. See, e.g., Sims v. ANR Freight Sys., Inc., 77 F.3d 846, 849 (5th Cir. 1996).
6. See Model Rules of Prof 1 Conduct R. 3.3 (2002).
7. See id. (stating that "[a] lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false").
8. Id. pmbl. cmt. 9 ("Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living.").
9. See Harris Interactive, Doctors and Teachers Most Trusted Among 22 Occupations and Professions: Fewer Adults Trust the President to Tell the Truth, http://www.harrisinteractive.com/harris_poll/index.asp?PID=688 (last visited Oct. 9, 2007) (Harris Interactive Poll showing that only 27% of respondents trust lawyers compared to 68% who do not, while 85% trusted doctors and 83% trusted teachers).
10. Id.;
11. see also Michael Kinsley, Why Lawyers Are Liars, Slate, Jan. 20, 2006, http://www.slate.com/id/2134510/nav/tap1/.
12. Abraham Lincoln, Speeches and Writings 1832-1858, at 245-46 (1989).
13. Nifong Surrenders License, Baltimore Sun, June 17, 2007, at 3A.
14. See id. Professor Robert P. Mosteller, in his contribution to this Symposium, describes the full extent of Michael Nifong's efforts to deceive during his prosecution of the Duke lacrosse players. He notes that the Disciplinary Hearing Commission panel "found that Nifong made numerous false and deceptive statements to opposing counsel, the court, and the bar grievance committee."
15. Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice," 76 Fordham L. Rev. 1337, 1364 n.125 (2007);
16. see also id. at 1339 n.9 (noting that Nifong was found guilty of criminal contempt as a result of false statements he made in court "asserting that he had supplied all DNA results"). Mosteller rightly frames the Nifong prosecution as an "extraordinary" example of "the violation of the prosecutor's fundamental duty to do justice."
17. Id. at 1340.
18. See Nifong Surrenders License, supra note 11.
19. Michael Kranish, Libby Is Convicted of Lying in Leak Case, Boston Globe, Mar. 7, 2007, at A12.
20. See Libby Sentenced to 30 Months in Prison, MSNBC, June 5, 2007, http://www.msnbc.msn.com/id/19039377/.
21. District Attorney Michael Nifong was a prosecutor charged with ensuring that justice is done. I. Lewis "Scooter" Libby was a prominent public official who had taken an oath to uphold the U.S. Constitution.
22. See Alan Dershowitz, The Best Defense 417 (1983).
23. See id. at xiv. (concluding from his experience that "the vast majority of criminal defendants are in fact guilty of the crimes with which they are charged"). Dershowitz adds that "[a]lmost all of my own clients have been guilty."
24. Id.
25. See generally Harper Lee, To Kill a Mockingbird (1960).
26. See Dershowitz, supra note 17, at 417.
27. See, e.g., Teresa S. Collett, Understanding Freedman's Ethics, 33 Ariz. L. Rev. 455 (1991);
28. Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469 (1966). For an example of an evidence and trial practice professor writing about ethical issues in advocacy,
29. see J. Alexander Tanford, The Ethics of Evidence, 25 Am. J. Trial Advoc. 487 (2002).
30. See generally Model Rules of Prof 1 Conduct (2002).
31. See Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Hum. Rts. 1, 6 (1975) (suggesting that lawyers are little more than "amoral technicians" under the dominant view of the role of the lawyer).
32. William H. Simon, The Practice of Justice 138 (1998);
33. see infra Part II.B.
34. Fed. R. Evid. 102;
35. see also Fed. R. Evid. 611(a)(1) (stating that "[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to [] make the interrogation and presentation effective for the ascertainment of truth").
36. George Fisher, Evidence 5 (2002) (noting that the "reluctance to examine what juries do with the evidence they hear perhaps highlights the importance of monitoring what they hear in the first place").
37. See Tanner v. United States, 483 U.S. 107, 121 (1987) (prohibiting jurors from testifying in support of a motion for a new trial about excessive drug use and drinking during a trial based on Federal Rule of Evidence 606(b), which "is grounded in the common-law rule against admission of jury testimony to impeach a verdict"); Fed. R. Evid. 606(b) (precluding juror testimony about deliberations subject to three exceptions).
38. See Fed. R. Evid. 606(b).
39. See Fed. R. Civ. P. 50(a)(1) (providing that a court may grant judgment as a matter of law after "a party has been fully heard on an issue" only if "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue").
40. See Tanner, 483 U.S. at 120 (noting that "[a]negations of juror misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process").
41. Fisher, supra note 26, at 5 (noting that "[i]f we are to exercise virtually no review of the jurors' skill and fairness in evaluating evidence, then perhaps we need to be especially vigilant to ensure that the evidence they hear is useful and fair").
42. See Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 1.1, at 2 (3d ed. 2003) (noting that the first justification for evidence law is "mistrust of juries").
43. James W. McElhaney, McElhaney's Trial Notebook 198 (4th ed. 2005).
44. See Fed. R. Evid. 501.
45. See Mueller & Kirkpatrick, supra note 32, § 5.1, at 285 (noting that privileges "impede the search for truth by excluding evidence that may be highly probative").
46. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (noting that the purpose of the privilege "is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice").
47. See, e.g., Fed. R. Evid. 407 (subsequent remedial measures); Fed. R. Evid. 408 (statements made during the course of failed plea negotiations); Fed. R. Evid. 409 (payment of medical expenses); Fed. R. Evid. 410 (inadmissibility of pleas); Fed. R. Evid. 411 (liability insurance); Fed. R. Evid. 412 (victims' past sexual conduct in sexual assault cases);
48. see Graham C. Lilly, An Introduction to the Law of Evidence § 5.18, at 191 (3d ed. 1996) (noting that "[p]ublic or social policy considerations frequently mold rules of evidentiary exclusion" including privileges and subsequent remedial measures).
49. See, e.g., United States v. Aramony, 88 F.3d 1369, 1389 (4th Cir. 1996) (noting that the attorney-client privilege "is not favored by federal courts" and "is to be strictly confined within the narrowest possible limits consistent with the logic of its principle").
50. See generally Mueller & Kirkpatrick, supra note 32, §§ 5.28-.30, at 379-95.
51. See McCormick on Evidence § 95, at 147 (5th ed. 1999) (noting that "under modern authority . . . the privilege does not extend to communications between attorney and client where the client's purpose is the furtherance of a future intended crime or fraud);
52. see also Model Rules of Prof'1 Conduct R. 1.6(b)(2) (2002).
53. See generally Mueller & Kirkpatrick, supra note 32, § 1.1, at 2 (noting that privileges are "the prime example" of evidence rules that are designed to "further substantive policies unrelated to the matter in suit").
54. See id. (referring to the truth-seeking purpose as the "classical account" of evidence law).
55. See Dale A. Nance, The Best Evidence Principle, 73 Iowa L. Rev. 227, 229 (1988) (claiming that evidence law primarily serves "epistemic concerns").
56. See Mueller & Kirkpatrick, supra note 32, § 1.1, at 3
57. (citing David P. Leonard, The Use of Character to Prove Conduct: Rationality and Catharsis in the Law of Evidence, 58 U. Colo. L. Rev. 1, 3 (1987)).
58. See Joseph G. Allegretti, The Lawyer's Calling: Christian Faith and Legal Practice 9 (1996).
59. Simon, supra note 24, at 53 (describing the traditional view of lawyering as contending that "it produces a higher level of justice in the aggregate and the long run").
60. See Fed. R. Evid. 403 (entrusting to judges the discretion to exclude evidence when the probative value of the evidence is substantially outweighed by dangers of unfair prejudice).
61. See Fed. R. Evid. 611(a) (stating that "[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence").
62. See United States v. Vitillo, 490 F.3d 314, 329 (3d Cir. 2007) (noting that the trial judge instructed the jury as follows: "You are the sole and exclusive judges of the facts" and "[y]ou determine the credibility of the witnesses").
63. See Fed. R. Evid. art. VIII (providing that hearsay evidence is excluded unless falling within an exclusion or exception to the Rule); Fed. R. Evid. 404(a)-(b) (providing that propensity character evidence is not admissible to prove a person's conduct in conformity with his character, except in a few circumstances).
64. For examples of Rules of Evidence that reflect suspicion of the role of advocates, see Fed. R. Evid. 611(c) (prohibiting the use of leading questions during direct examination), Fed. R. Evid. 703 (imposing stringent standard of exclusion for inadmissible facts or data relied on by an expert witness as a means of preventing a lawyer from using experts as an end run around the hearsay rule), and Fed. R. Evid. 901(b)(2) (requiring that a lay witness's knowledge of another's handwriting must not be obtained in preparation for the trial, thus precluding lawyers from prepping witnesses to offer such testimony).
65. One needs to look no further than the sex-offender rules - Federal Rules of Evidence 413, 414, and 415 - to find a notable example of the shortcomings in the Rules, both in form and content. See generally James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95 (1995).
66. See, e.g., Mahlandt v. Wild Canid Survival & Research Ctr., 588 F.2d 626, 630-31 (8th Cir. 1978) (holding that the trial court erroneously excluded hearsay evidence that should have been admitted under the agent admission rule).
67. See, e.g., Fed. R. Evid. 404(a)(1)-(2) (providing that the accused may introduce evidence of a pertinent trait of his own or the victim's character as propensity evidence of the person's conduct on the occasion in question); Fed. R. Evid. 412(b)(1)(A)-(C) (providing that the accused in a sexual misconduct case is permitted to introduce certain kinds of evidence in defense); Fed. R. Evid. 803(8)(C) (providing that in criminal cases the defendant is permitted to introduce evidence of factual findings contained in public records, but the prosecution is not); Fed. R. Evid. 804(b)(1) (providing that the government may use "former testimony" evidence against the accused only if the accused was a party in the prior proceeding - greater protection than is afforded to other parties).
68. See U.S. Const. amend. IV (prohibiting unreasonable searches or seizures).
69. See U.S. Const. amend. V (ensuring defendants will receive due process of law);
70. see also Miranda v. Arizona, 384 U.S. 436 (1966).
71. See U.S. Const. amend. VI (providing that the accused has the right to confront witnesses against him and the right to counsel).
72. See Mueller & Kirkpatrick, supra note 32, § 4.12, at 185 (noting that Rule 404(a), which allows the accused to introduce character evidence, "gives a criminal defendant some counterweight against the strong investigative and prosecutorial resources of the government").
73. See Fed. R. Evid. 404(a)(1)-(2).
74. See Fed. R. Evid. 803(8) (accused may introduce public records containing factual findings, but government may not).
75. See Fed. R. Evid. 609(a)(1) (providing that felony convictions may be admitted against the accused for impeachment purposes only if the probative value outweighs the danger of unfair prejudice of the evidence - a standard that favors exclusion of the evidence).
76. William Blackstone, 4 Commentaries *352.
77. See Fed. R. Evid. 413 (allowing the admission of other sexual "offenses" allegedly committed by the defendant in criminal cases involving allegations of sexual assault); Fed. R. Evid. 414 (allowing admission of defendants' sexual offenses in child molestation prosecutions); Fed. R. Evid. 415 (allowing admission of defendants' sexual offenses in civil cases involving claims of sexual assault).
78. See, e.g., Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 Harv. L. Rev. 563, 590 (1997) (criticizing Rule 413 because, among other things, the Rule increases "the risk that a jury will punish the defendant for acts other than those for which he is on trial");
79. Edward J. Imwinkelried, Undertaking the Task of Reforming the American Character Evidence Prohibition: The Importance of Getting the Experiment Off on the Right Foot, 22 Fordham Urb. L.J. 285, 298 (1995) (criticizing new Rules because of lack of evidence that sex offenders are more likely to reoffend than other criminals).
80. For example, a defendant charged with burglary or a civil defendant charged with negligence need not be concerned about the admission of their past conduct as evidence of their propensity. Such evidence is clearly excluded. See Fed. R. Evid. 404(a). But under the sex-offender rules, the defendant may well have to respond to such evidence.
81. See, e.g., Fed. R. Evid. 413.
82. See generally David P. Leonard, The Federal Rules of Evidence and the Political Process, 22 Fordham Urb. L.J. 305 (1995).
83. See Oregon v. Haas, 420 U.S. 714, 723-24 (1975) (upholding impeachment use of statements obtained after defendant invoked rights under Miranda);
84. Harris v. New York, 401 U.S. 222, 224 (1971) (upholding use of statements obtained in violation of Miranda for impeachment of the defendant's testimony).
85. See Dickerson v. United States, 530 U.S. 428, 435 (2000) (observing that "the admissibility in evidence of any statement given during custodial interrogation of a suspect . . . depend[s] on whether the police provided the suspect with [the Miranda] warnings").
86. See supra note 67.
87. See United States v. Havens, 446 U.S. 620, 628 (1980) (upholding admission of evidence seized by the government in violation of defendant's rights under the Fourth Amendment for purposes of impeaching defendant's trial testimony).
88. See Michigan v. Harvey, 494 U.S. 344, 345-46 (1990) (upholding admission of a statement made by defendant after he had invoked his right to counsel under the Sixth Amendment).
89. See, e.g., Harris, 401 U.S. at 226 (stating that "[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances").
90. 446 U.S. 620 (1980).
91. See id. at 622-23. The government caught the defendant's alleged coconspirator with cocaine hidden in makeshift pockets sewed into the coconspirator's undershirt.
92. Id. at 622. Defendant's direct testimony was not terribly clear, but he denied having anything to do with importing the cocaine, stating that he "had nothing to do with any wrapping or bandages or anything . . . . I had nothing to do with anything with McLeroth [the alleged coconspirator] in connection with this cocaine matter."
93. Id.
94. See id. at 623.
95. Id. at 626 (citing Oregon v. Haas, 420 U.S. 714, 722 (1975)).
96. See id. (noting that "[t]here is no gainsaying" the fundamental importance of finding the truth).
97. Id. at 626-27.
98. Id. at 626.
99. See Mueller & Kirkpatrick, supra note 32, § 6.45, at 537 (noting that "[w]hen a court admits otherwise excludable evidence as counterproof tending to contradict initial testimony, . . . the counterproof may have impeaching effect but cannot be taken as positive proof of whatever point it might logically tend to prove").
100. See generally L. Timothy Perrin, Expert Witnesses Under Rules 703 and 803(4) of the Federal Rules of Evidence: Separating the Wheat from the Chaff 72 Ind. L.J. 939, 971-72 (1997) (describing concerns expressed by courts and social scientists about the efficacy of limiting instructions).
101. The Rule provides as follows: "The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . . . . (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." Fed. R. Evid. 804(b)(6).
102. See id.
103. See id. advisory committee's note (noting that "[t]he usual Rule 104(a) preponderance of the evidence standard has been adopted in light of the behavior the new Rule . . . seeks to discourage").
104. See Commonwealth v. Edwards, 830 N.E.2d 158, 167 (Mass. 2005) (observing that "the equitable principle, at the heart of the forfeiture by wrongdoing doctrine, [is] that a party may not gain advantage from his own wrong").
105. The hearsay exception extends to all hearsay statements made by the declarant, sworn and unsworn, provided they are relevant and satisfy the other requirements of the Rules, including the balancing test under Rule 403. See Mueller & Kirkpatrick, supra note 32, § 8.78, at 947.
106. 541 U.S. 36 (2004).
107. 126 S. Ct. 2266 (2006).
108. See Davis, 126 S. Ct. at 2280 (concluding that "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation");
109. Crawford, 541 U.S. at 62 (observing that "the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds").
110. See Davis, 126 S. Ct. at 2280.
111. Stephen N. Subrin & Margaret Y.K. Woo, Litigating in America: Civil Procedure in Context 22 (2006).
112. William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law (2007) [hereinafter Carnegie Report]. The report is part of the Carnegie Foundation's Preparation for the Professions Series, "a comparative study of professional education in medicine, nursing, law, engineering, and the preparation of the clergy." Id. at v.
113. See id. at 140.
114. Wasserstrom, supra note 23, at 6.
115. Carnegie Report, supra note 92, at 142.
116. See Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers, Clients, and Moral Responsibility 19-24 (1994) (describing generally the client-centered counseling movement, which "focuses on the desires of the client").
117. See id. at 19 (quoting David A. Binder et al., Lawyers as Counselors: A Client-Centered Approach 261 (1991)).
118. See Panel Discussion, Does Religious Faith Interfere with a Lawyer's Work?, 26 Fordham Urb. L.J. 985, 991 (1999) (remarks by panelist Stephen Carter).
119. See Ellen F. Sward, Values, Ideology & the Evolution of the Adversary System, 64 Ind. L.J. 301, 317 (1989) (noting that "truth is elusive").
120. See Model Rules of Prof 1 Conduct pmbl. cmt. 2 (2002) (stating that "[a]s advocate, a lawyer zealously asserts the client's position under the rules of the adversary system"). Gerald Shargel, in his contribution to this Symposium, vigorously argues in favor of zealous advocacy, proudly proclaiming his membership in the "zealous advocate school" and "unabashedly embrac[ing] role morality."
121. See Gerald L. Shargel, Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation, 76 Fordham L. Rev. 1263, 1266 (2007). In Shargel's world, the defense lawyer has no responsibility for the discovery of the truth at trial. He observes that "a trial may be a search for the truth, but I - as a defense attorney - am not part of the search party."
122. Id. at 1267. Shargel's emphasis on the lawyer's duty of candor leads him to conclude that defense lawyers should inform their clients of the operation of Rule 608(b) of the Federal Rules of Evidence, which excludes extrinsic evidence offered to prove the witness's past untruthful conduct. Id. at 1275. While Shargel and I might find ourselves as members of different advocacy "schools," we do find agreement on the importance of lawyers using their power of persuasion with their clients. He identifies himself as a "strong believer in the power of negative persuasion," and he describes how he seeks to "deter [his] client from relying on Rule 608(b) to lie,"
123. id. at 1277, while I conclude that the best possible outcome in the client perjury situation is for defense lawyers to dissuade their clients from testifying falsely,
124. see infra notes 245-46 and accompanying text.
125. See Wasserstrom, supra note 23, at 5-6 (opining that "the lawyer has a duty to make his or her expertise fully available in the realization of the end sought by the client, irrespective, for the most part, of the moral worth to which the end will be put or the character of the client who seeks to utilize it").
126. Id. at 6.
127. See Monroe H. Freedman, Lawyers' Ethics in an Adversary System 2 (1975). "The dignity of the individual is respected to the point that even when the citizen is known by the state to have committed a heinous offense, the individual is nevertheless accorded such rights as counsel, trial by jury, due process, and the privilege against self-incrimination."
128. Id. Additionally, "the Constitution has committed us to an adversary system for the administration of criminal justice. The essentially humanitarian reason for such a system is that it preserves the dignity of the individual, even though that may occasionally require significant frustration of the search for truth and the will of the state."
129. Id. at 8.
130. See Simon, supra note 24, at 7 (describing the "Dominant View" of lawyering as follows: "[T]he lawyer must - or at least may - pursue any goal of the client through any arguably legal course of action and assert any nonfrivolous legal claim").
131. Freedman, supra note 103, at 3. Professor Monroe Freedman's article in the Michigan Law Review about the most difficult questions faced by criminal defense lawyers is particularly noteworthy.
132. See generally Freedman, supra note 21.
133. Freedman, supra note 103, at 53.
134. See id.
135. Id. at 8.
136. See Simon, supra note 24, at 9.
137. Id. Professor William Simon defines justice as including the "basic values of the legal system," and uses the term justice interchangeably with "legal merit."
138. Id. at 138.
139. Id. at 138-39.
140. Id. at 140.
141. See Freedman, supra note 103, at 3.
142. See Simon, supra note 24, at 140 (stating that under the "Contextual View" the responsibility of the lawyer for "substantive justice" depends on the reliability of the relevant procedures);
143. see also Shaffer & Cochran, supra note 96, at 11-12 (noting that the adversary system does not work well in many cases and that "lawyers have a moral responsibility for what they know and for what they do").
144. See Freedman, supra note 103, at 31. Freedman's argument, in his own words, is as follows: In my opinion, the attorney's obligation in [a perjury] situation would be to advise the client that the proposed testimony is unlawful, but to proceed in the normal fashion in presenting the testimony and arguing the case to the jury if the client makes the decision to go forward. Any other course would be a betrayal of the assurances of confidentiality given by the attorney in order to induce the client to reveal everything, however damaging it might appear.
145. Id.
146. See Model Rules of Prof 1 Conduct R. 3.3 (2002).
147. Lord Henry Brougham of England famously described the lawyer's "first and only duty" as "to save the client by all means . . . at all hazards and costs to other persons and to himself." Monroe H. Freedman, Understanding Lawyer's Ethics 65 (1990).
148. See In re Taylor, 189 S.W.2d 403, 405 (Ky. 1945).
149. Rule 3.3 provides in pertinent part, as follows: A lawyer shall not knowingly: . . . (3) offer evidence that the lawyer knows to be false. If the lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. Model Rules of Prof'1 Conduct R. 3.3.
150. Id.
151. Id.
152. Id.
153. Compare People v. Flores, 538 N.E.2d 481, 498 (Ill. 1989) (holding that defense lawyers must make "good-faith determination whether . . . witnesses . . . would testify untruthfully"), with United States v. Long, 857 F.2d 436, 445-46 (8th Cir. 1988) (holding that a lawyer must have "firm factual basis" that defendant will commit perjury).
154. See Long, 857 F.2d at 445;
155. see also ABA Comm. on Ethics and Prof'1 Responsibility, Formal Op. 87-353 (1987) (stating that the knowledge requirement in Model Rule 3.3 means "actual knowledge of the fact in question" and "knowledge may be inferred from circumstances" (emphasis omitted)).
156. Model Rules of Prof 1 Conduct R. 3.3(a)(3).
157. See id. cmt. 7.
158. See id. R. 3.3(a)(3).
159. Id. R. 1.6.
160. Id. R. 3.3.
161. See Rock v. Arkansas, 483 U.S. 44, 51-53 (1987).
162. See Model Rules of Prof'1 Conduct R. 1.2(a) (providing that, in criminal cases, a "lawyer shall abide by the client's decision, after consultation with the lawyer . . . whether the client will testify").
163. In re Michael, 326 U.S. 224, 227 (1945).
164. See Nix v. Whiteside, 475 U.S. 157, 160-61 (1986). Prior to the defendant's eve-of-trial confession, he had consistently maintained that he did not see a gun but was convinced that the victim had a gun. Id.
165. See id. at 161.
166. Id. The complete statement, according to Gary Robinson, was, "In Howard Cook's case there was a gun. If I don't say I saw a gun, I'm dead."
167. Id.
168. See id. According to Robinson's subsequent testimony about his exchange with Emanuel Whiteside, he told the defendant the following: [W]e could not allow him to [testify falsely] because that would be perjury, and as officers of the court we would be suborning perjury if we allowed him to do it; . . . I advised him that if he did do that it would be my duty to advise the Court of what he was doing and that I felt he was committing perjury; also, that I probably would be allowed to attempt to impeach that particular testimony.
169. Id.
170. See Model Rules of Prof'1 Conduct R. 3.3 cmt. 10 (2002) (commenting that when confronted with false testimony from a witness, the lawyer's "proper course is to remonstrate with the client confidentially, advise the client of the lawyer's duty of candor to the tribunal and seek the client's cooperation with respect to the withdrawal or correction of the false statements or evidence");
171. see also Panel Discussion, supra note 98, at 985-97. Professor Stephen Carter, discussing what it means to be a "professional, " remarked that lawyers as professionals "assert allegiance to a morally admirable ethic that makes a strong claim on us, that in turn makes us different from other people,"
172. id. at 990, which should include telling a client when necessary, "you are morally wrong,"
173. id. at 996.
174. See Nix, 475 U.S. at 161.
175. See id.
176. Id. at 161-62.
177. Id. at 173-74.
178. Id. at 173 (discussing Harris v. New York, 401 U.S. 222 (1971); United States v. Knox, 396 U.S. 77 (1969); Dennis v. United States, 384 U.S. 855 (1966)).
179. Id. at 171.
180. People v. Johnson, 72 Cal. Rptr. 2d 805, 812 (1998).
181. See Model Rules of Prof'l Conduct R. 3.3 cmt. 10 (2002).
182. See generally Thomas L. Shaffer, The Moral Theology of Atticus Finch, 42 U. Pitt. L. Rev. 181 (1981) (arguing that Finch's regard for the truth makes him a hero, because he is not blinded by the prejudices of his community and is able to tell the truth to the people of Maycomb, Alabama).
183. Lee, supra note 19, at 202-07.
184. See id. at 206.
185. See Shaffer, supra note 146, at 184 (noting that in Maycomb, Alabama, in 1935 "[t]here were conventions for - limits on - defenses of black people" and no one anticipated a defense that attacked the defendant's white accusers).
186. See Lee, supra note 19, at 205-06. Upon being asked about the critical events, Robinson came to "a dead stop," looked around the courtroom, and ran his hand nervously over his mouth.
187. See id. at 206.
188. Id. at 206. In response to the prompt from Finch, the defendant reveals that the alleged victim "sorta jumped on me" and "hugged me round the waist." Then he testified as follows: "She reached up an' kissed me 'side of th' face. She says she never kissed a grown man before an' she might as well kiss [me]."
189. Id.
190. See id. at 194.
191. See id. at 161-65.
192. See id. at 206.
193. See id.
194. See Kenneth W. Starr, Christian Life in the Law, 27 Tex. Tech L. Rev. 1359, 1360 (1996).
195. Nix v. Whiteside, 475 U.S. 157, 176-77 (1986) (Brennan, J., concurring) ("[T]he court cannot tell the states or lawyers in the several states how" to act because it lacks constitutional or statutory jurisdiction over the matter of ethical standards).
196. The latest version of the Model Rules appears to prefer that states prohibit a lawyer from knowingly putting a client who intends to commit perjury on the witness stand, though recognizing that some jurisdictions require the narrative approach, see Model Rules of Prof'l Conduct R. 3.3, cmt. 7 (2002), and the American Bar Association Defense Standards prohibit the narrative approach explicitly,
197. see Standards for Criminal Justice: Prosecution Function and Defense Function Standard 4-7.5, and related commentary (3d ed. 1993). A number of states continue to allow or require the use of narrative testimony.
198. See, e.g., People v. Guzman, 755 P.2d 917 (Cal. 1988); People v. DePallo, 754 N.E.2d 751, 752-53 (N.Y. 2001) (approving of defense counsel's use of narrative testimony for defendant).
199. See, e.g., United States v. Long, 857 F.2d 436, 445-46 (8th Cir. 1988) (adopting "firm factual basis" test for attorney's requisite level of knowledge); People v. Calhoun, 815 N.E.2d 492, 499-500 (Ill. App. Ct. 2004) (requiring defense counsel to make "good-faith determination that defendant was going to commit perjury").
200. 742 F.2d 1070 (7th Cir. 1984).
201. 424 S.E.2d 816 (Ga. Ct. App. 1992).
202. See Curtis, 742 F.2d at 1076 (holding that because the defendant "would have testified perjuriously, counsel's refusal to put him on the witness stand cannot be said to have violated Curtis' constitutional rights");
203. Stephenson, 424 S.E.2d at 818 (concluding that under Nix the defendant had no right to counsel's assistance in committing perjury).
204. See Stephenson, 424 S.E.2d at 817.
205. See id.
206. Id. The court's opinion does not provide any information about the nature of the defense counsel's revelation of the client's intention to commit perjury, nor does it discuss the propriety of the disclosure.
207. See id.
208. See id. The defendant denied confessing his guilt to his lawyer.
209. Id.
210. See id. at 818 (quoting Nix v. Whiteside, 475 U.S. 157, 173 (1986)).
211. Compare United States v. Curtis, 742 F.2d 1070 (7th Cir. 1984), with Stephenson v. State, 424 S.E.2d 816 (Ga. Ct. App. 1992).
212. See Curtis, 742 F.2d at 1072-73.
213. See id. at 1073. In particular, the defense lawyer was concerned that the defendant's two prior convictions for armed robbery would be admitted if the defendant testified, thus "irreparably" damaging the defendant's case.
214. See id.
215. 483 U.S. 44 (1987).
216. See Curtis, 742 F.2d at 1076. The court held, "If a defendant insists on testifying, however irrational that insistence might be from a tactical viewpoint, counsel must accede. We hold that a defendant's personal constitutional right to testify truthfully in his own behalf may not be waived by counsel as a matter of trial strategy."
217. Id.
218. See id. (noting that the defendant "has no constitutional right to testify perjuriously").
219. Id.
220. 72 Cal. Rptr. 2d 805 (1998).
221. See id. at 634. During an in camera hearing with the judge, defense counsel advised the trial judge that he was "ethically barred from calling [the defendant] as a witness under the law as I have come to know it and very specifically researched it regarding this particular issue."
222. Id. at 614. The trial judge, after noting that it was difficult to rule because of the limited information announced that the defendant "will not be called... over his objection."
223. Id at 613-14. Despite the appellate court's determination that the trial judge's decision violated the defendant's right to testify, the appellate court ruled that the error was harmless beyond a reasonable doubt.
224. See id. at 636.
225. See id. at 626.
226. See id.
227. Fed. R. Evid. 603.
228. Id.
229. See Mueller & Kirkpatrick, supra note 32, § 6.6, at 430 (noting that the purpose of the oath is "to impress on the witness the duty to speak the truth").
230. Panel Discussion, supra note 98, at 990 (claiming that lawyers should be willing to say to themselves, "We are different; being a lawyer makes me a different person than I would be were I not a lawyer" (internal quotation marks omitted)).
231. Id. at 996.
232. Id. Stephen Carter states that he finds unpersuasive "the claim that lawyers have an obligation to participate in the client's wrongness without speaking up or trying to change it."
233. Id.
234. See Model Rules of Prof'l Conduct R. 3.3 cmt. 10 (2002).
235. See William J. Stuntz, Christian Legal Theory, 116 Harv. L. Rev. 1707, 1741, 1745 (2003) (book review) (noting that pride in lawyers leads to certainty, blindness, and self-display, whereas humility "always sees the possibility of its own mistake").
236. See Model Rules of Profl Conduct R. 3.3 cmt. 15 (stating that "if the lawyer's compliance with this Rule's duty of candor results in such an extreme deterioration of the client-lawyer relationship that the lawyer can no longer competently represent the client" then a request to withdraw may be required).
237. See, e.g., Nix v. Whiteside, 475 U.S. 157, 161 (1986) (stating that the defendant revealed the new (and presumably false) information to his attorney about one week before trial).
238. 226 S.W.3d 74 (Ky. 2007).
239. See id. at 89 (Scott, J., dissenting). The six counts against the defendant included (1) trafficking a controlled substance in the first degree (cocaine) while in the possession of a firearm; (2) trafficking a controlled substance in the first degree (cocaine); (3) illegal possession of a controlled substance in the first degree (cocaine) while in the possession of a firearm; (4) illegal possession of a controlled substance in the first degree (cocaine); (5) tampering with physical evidence; and (6) driving on a permit without a licensed operator.
240. Id. at 90.
241. Id. at 77 (majority opinion).
242. Id. Apparently, defense counsel had reserved his opening statement until the conclusion of the prosecution's case as he had every right to do. The ex parte conference with the court took place near the conclusion of the prosecution's case in chief.
243. See id.
244. Id.
245. Id.
246. Id.
247. Id. at 78.
248. Id. The defense counsel remained on call nearby in the event he was needed.
249. See id.
250. See id.
251. See id. at 90 (Scott, J., dissenting).
252. Id. at 78 (majority opinion). The court of appeals held that the defendant "waived his right to counsel when he proceeded against his attorney's advice, and that his attorney had acted properly in not assisting him to present false testimony."
253. Id.
254. Id. at 86 (stating that the trial court's "only error" was allowing the defense lawyer to leave). The Kentucky Supreme Court seemed to go out of its way to express its appreciation for the trial court's effort to make the proper decision, stating, "Although valiantly trying, the court did not properly balance all the competing interests in this trial as the process set forth above would have required. Given the complexity of the issues, and the lack of time inherent in the trial process, this is understandable."
255. Id. at 85.
256. See id. at 85-86.
257. See id. at 86-87 (Cunningham, J., concurring).
258. Id. at 87.
259. See id. at 88 (Scott, J., dissenting).
260. Id. at 95.
261. See id.
262. Fed. R. Evid. 804(b)(6).
263. See Nix v. Whiteside, 475 U.S. 157, 173 (1986).
264. See McCormick on Evidence, supra note 40, § 95, at 147 (noting that "under modern authority... the [attorney-client] privilege does not extend to communications between attorney and client where the client's purpose is the furtherance of a future intended crime or fraud");
265. see also Model Rules of Prof'l Conduct R. 1.6(b)(2) (2002).
266. See generally McCormick on Evidence, supra note 40, § 1.1 (noting that privileges are "the prime example" of evidence rules that are designed to "further substantive policies unrelated to the matter in suit").
267. As the majority in Brown v. Commonwealth concluded, the defense counsel's withdrawal from the courtroom during the defendant's testimony violated the defendant's right to counsel. 226 S.W.3d 74, 85 (Ky. 2004). In United States ex rel. Wilcox v. Johnson, the U.S. Court of Appeals for the Third Circuit held that the defendant was denied his right to counsel and his right to testify when the trial judge advised the defendant that, if he chose to testify contrary to the wishes of his lawyer, the judge would allow the lawyer to withdraw and the defendant would be forced to proceed without counsel. 555 F.2d 115, 120 (3d Cir. 1977).
268. See Stuntz, supra note 186, at 1733. Professor William Stuntz identifies empathy as being "most needed" on the part of criminal defense lawyers, but "in shortest supply."
269. Id. The need may be so great in criminal defense work at least in part because of the excessive case loads handled by appointed counsel and the lack of adequate resources available to them. Stuntz observes, "[A] typical indigent defendant receives not an advocate able and willing to make the best case for him, but an overworked bureaucrat whose only realistic option is to plead the case out as quickly as possible."
270. Id. at 1731.
271. See Jay S. Silver, Truth, Justice, and the American Way: The Case Against the Client Perjury Rules, 47 Vand. L. Rev. 339, 419 (1994) (noting that the narrative allows "counsel to disassociate herself from the false testimony of the accused").
272. See id. at 419-20 (noting that counsel is expected to refrain from "referring to the suspected falsehoods" during opening statements and closing argument).
273. See, e.g., Brown, 226 S.W.3d at 84.
274. See People v. Guzman, 755 P.2d 917 (Cal. 1988).
275. See People v. DePallo, 754 N.E.2d 751 (N.Y. 2001).
276. See, e.g., People v. Johnson, 72 Cal. Rptr. 2d 805, 817-18 (1998).
277. Id.
278. See, e.g., State v. Stephenson, 424 S.E.2d 816, 818 n.1 (Ga. Ct. App. 1993) (noting that allowing defendant to "testify in narrative form would constitute the attorney's participation in fraud, and thus is no answer").
279. Compare Silver, supra note 214, at 421-22, and Freedman, supra note 103, at 37-41, with Model Rules of Prof'l Conduct R. 3.3 cmts. 7, 9 (2002).
280. See Freedman, supra note 103, at 37, 40-41.
281. See Silver, supra note 214, at 355 (arguing that "[permitting counsel to call a criminal defendant whom she believes will testify untruthfully may, in the end, actually advance the adversarial search for truth").
282. See Commonwealth v. Mitchell, 781 N.E.2d 1237, 1245 (Mass. 2003) (noting that "[t]he judge instructed the defendant's trial counsel to remain standing during the defendant's narrative testimony on direct").
283. See, e.g., Freedman, supra note 103, at 37.
284. See supra notes 73-81 and accompanying text.
285. See, e.g., People v. Johnson, 72 Cal. Rptr. 2d 805, 817-18 (1998).
286. See Fed. R. Evid. arts. IV (character evidence), VIII (hearsay).
287. See Johnson, 72 Cal. Rptr. 2d at 817 (noting that "[b]ecause the defendant in a criminal trial is not situated the same as other witnesses, it would not be illogical for a jury to assume that special rules apply to his testimony, including a right to testify in a narrative fashion").
288. See Fed. R. Evid. 611 (setting forth rules for the questioning of witnesses).
289. See Model Rules of Prof'l Conduct R. 3.3 (2002). Under the comments to Rule 3.3 defense lawyers are allowed to offer testimony that they know is false in the narrative format if required by the jurisdiction.
290. See id. cmt. 7.
291. See Fed. R. Evid. 104(a).
292. See Fed. R. Evid. 804(b)(6).
293. See Brown v. Commonwealth, 226 S.W.3d 74, 88 (Ky. 2007) (Scott, J., dissenting).
294. See, e.g., People v. Johnson, 72 Cal. Rptr. 2d 805, 818 (1998) (concluding that the court below should not have allowed the defense counsel to refuse to allow the defendant to take the stand due to his concern the defendant would testify falsely because "there is always the possibility the defendant will change his mind and testify truthfully").
295. See McDowell v. Kingston, No. 06-3288, 2007 WL 2318170, at *2, *5-6 (7th Cir. Aug. 15, 2007).
296. See id. at *2.
297. See McDowell v. Kingston, No. 05-C-0498, 2006 WL 2289304, at *2 (E.D. Wis. Aug. 8, 2006), aff'd, 2007 WL 2318170, at *2, *5-6.
298. 83 Cal. Rptr. 2d 33 (1999).
299. See id. at 36. The exchange between the defense lawyer and the trial judge is not explicit about the nature of the lawyer's concerns, but the appellate court notes that "the record reflects [] that the court and prosecutor treated the matter as one where counsel feared Jennings would testify falsely if asked certain questions."
300. Id. at 37.
301. Id. at 36.
302. Id.
303. See id. at 38. Concluding that "[w]e thus assume counsel considered the alternatives, chose the one he could ethically live with and discussed the matter with Jennings before Jennings decided to testify with limited questioning."
304. Id.
305. See id. at 36-39.
306. See Model Rules of Prof'l Conduct R. 3.3 cmt. 10 (2002).
307. See Sophists, The Internet Encyclopedia of Philosophy, http://www.iep.utm.edu/s/sophists.htm (last visited Oct. 3, 2007). For the sophist, [t]he search for truth was not top priority. . .. [T]he sophists tried to entangle, entrap, and confuse their opponents, and even, if this were not possible, to beat them down by mere violence and noise. They sought also to dazzle by means of strange or flowery metaphors, by unusual figures of speech, by epigrams and paradoxes, and in general by being clever and smart, rather than earnest and truthful."
308. Id.
309. In re Michael, 326 U.S. 224, 227 (1945).
310. Lincoln, supra note 10, at 246.