DILEMMA OF THE PERJURIOUS DEFENDANT - RESOLUTION, NOT AVOIDANCE

• NCJ Number: 44684
• Journal: Case Western Reserve Law Review Volume: 28 Issue: 1 Dated: (FALL 1977) Pages: 3-40
• Author(s): D A POLSTER
• Date Published: 1977
• Length: 38 pages
• Corporate Author: Case Western Reserve University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

PROPOSED SOLUTIONS TO THE ETHICAL DILEMMA CONFRONTING THE CRIMINAL DEFENSE LAWYER WHOSE CLIENT PERJURES HIMSELF ARE ASSESSED, AND AN ALTERNATIVE SOLUTION IS POSED.

Abstract

THE PERJURIOUS DEFENDANT FORCES THE DEFENSE LAWYER TO CHOOSE BETWEEN SILENCE THAT PRESERVES THE CONFIDENTIAL ATTORNEY-CLIENT RELATION AND DISCLOSURE THAT PRECLUDES PERJURED TESTIMONY FROM AFFECTING THE JUDICIAL PROCESS. SUCH A SITUATION TYPICALLY INVOLVES THE DEFENDANT WHO, AFTER CONFESSING HIS GUILT TO HIS LAWYER, DISREGARDS THE ADVICE OF HIS LAWYER AND INSISTS UPON TAKING THE STAND TO PROCLAIM HIS INNOCENCE. THE ISSUE IS OFTEN SEEN AS PITTING THE CLIENT'S QUASI-CONSTITUTIONAL RIGHT TO TESTIFY, HIS SIXTH AMENDMENT RIGHT TO FULL AND EFFECTIVE COUNSEL, AND HIS INTEREST IN PROTECTING THE ATTORNEY-CLIENT PRIVILEGE AGAINST THE CLIENT'S LEGAL OBLIGATION TO TELL THE TRUTH, THE LAWYER'S ETHICAL AND PROFESSIONAL DUTY NOT TO KNOWINGLY INTRODUCE FALSE OR PERJURED EVIDENCE, AND THE NEED TO PRESERVE THE INTEGRITY OF THE LEGAL PROCESS. IT HAS BEEN PROPOSED THAT THE DILEMMA BE RESOLVED WITHOUT QUALIFICATION IN FAVOR OF THE LAWYER'S OBLIGATION TO HIS CLIENT. THE AMERICAN BAR ASSOCIATION (ABA) STANDARD REQUIRED THE LAWYER TO ATTEMPT TO WITHDRAW FROM THE CASE IF THE PERJURY DILEMMA ARISES BEFORE TRIAL. IF WITHDRAWAL IS NOT POSSIBLE, OR IF THE DILEMMA ARISES DURING THE TRIAL, THE ATTORNEY MUST ALTER HIS TACTICS SO AS TO DISSOCIATE HIMSELF FROM PERJURED TESTIMONY. BOTH APPROACHES TO THE DILEMMA ARE FOUND INADEQUATE. THE ABA STANDARD IS SAID TO AVOID RATHER THAN SOLVE THE DILEMMA. RELEVANT JUDICIAL DECISIONS ARE REVIEWED, AND AN ALTERNATIVE SOLUTION IS PROPOSED IN WHICH THE ATTORNEY IS REQUIRED TO INFORM THE CLIENT AT THE OUTSET OF THE ATTORNEY-CLIENT RELATION THAT THE ATTORNEY WILL DISCLOSE ANY PERJURY ON THE CLIENT'S PART TO THE COURT. THIS SOLUTION WOULD PROVIDE HONESTY IN THE ATTORNEY-CLIENT RELATIONSHIP WHILE PRESERVING THE INTEGRITY OF THE JUDICIAL PROCESS.