NCJ Number
113420
Journal
Trial Volume: 24 Issue: 9 Dated: (September 1988) Pages: 30-40
Date Published
1988
Length
11 pages
Annotation
There are only two viable solutions when a defense counsel knows that a client intends to commit perjury: counsel must report the client's intent to lie to the court or counsel should permit the client to make a narrative statement to the fact-finder.
Abstract
The client perjury dilemma exists only when counsel has actual knowledge that the client intends to lie. Traditionally, under this standard, a third solution has also been suggested: counsel should examine the defendant just as he would any other witness, even though he knows the testimony is false. Even though the U.S. Supreme Court in a case decided in 1986 appears to support the solution that would advise the trial court when a defendant insists on commiting perjury, the narrative approach is the most sensible approach. The American Bar Association has issued Formal Opinion 87-535, which makes clear that still a fourth option may exist: counsel may be forced to resolve the issue of client perjury by withdrawing from the case. When counsel withdraws, however, the successor counsel must then solve the dilemma of perjury -- often with less information than was available to the original counsel. When deciding whether to inform the court of the client's intended perjury or to permit the client to make a narrative statement to the fact-finder, the defense attorney should ask the following questions: Will the approach discourage a defendant from presenting perjury? If false testimony is presented, will the defense counsel be placed in the position of supporting it? Will the approach taken preserve the attorney-client relationship and avoid the risk of mistrial? Will the approach risk disclosure of confidential information? 37 footnotes.