NCJ Number
85518
Journal
American Journal of Criminal Law Volume: 9 Issue: 3 Dated: (November 1981) Pages: 387-403
Date Published
1981
Length
17 pages
Annotation
This article discusses the difficulties faced by criminal defense lawyers who know of their clients' intention to testify perjuriously and the appropriateness of courses of action open to the attorneys in dealing with these situations.
Abstract
An obligation on the part of attorneys not to be involved in perjury is made mandatory under the present guidelines of the American Bar Association's Model Code of Professional Responsibility. Under the code, a lawyer who knowingly permits the introduction of perjurious testimony is subject to discipline. The American Bar Association's Model Rules of Professional Conduct, intended to supercede the code, do not expressly address recommended conduct by the attorney when the client intends to commit perjury. The rules thus contemplate a 'hands off' approach by the attorney, with possibly severe consequences to clients if they actually perjure themselves. A third approach to the problem of client perjury is found in the American Bar Association Defense Function Standards. These guidelines prohibit both preventive disclosure of the defendant's perjurious intentions and subsequent disclosure of perjury actually committed by the defendant. In effect, the standards recommend a passive representation of the perjurious client. All three courses of action have been used and criticized. It is suggested that the passive representation approach is superior to such alternatives as withdrawal from the case of the disclosure procedure structured by the Model Rules of Professional Conduct. Use of the passive representation approach respects the integrity of the criminal justice system and the proper role of the defense attorney. The article provides 105 footnotes.