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told my lawyer I’m planning on telling a lie on the stand. What will happen?
Criminal defense attorneys have a duty to zealously
represent their clients and guard their confidences. However, they also have a
duty to the court not to present evidence that they know is false, fraudulent,
or perjured, whether it’s coming from the defendant or a witness whom the
lawyer knows intends to lie. A lawyer who knowingly uses or presents perjured
testimony risks serious consequences. Under the profession’s code of ethics (the
Canons of Professional Ethics of the American Bar Association), doing so
subjects the lawyer to discipline—and quite possibly, disbarment.
Knowing that presenting false testimony violates their duty
to the court , few lawyers will allow it. They will do their best to convince
their clients not to testify falsely.
Attorneys whose clients stubbornly insist on offering
perjured testimony face a difficult dilemma, pulled between their duties to the
court and their client. The correct response is to ask the judge to be relieved
of the case, so that another lawyer can be appointed—without saying why. When
such a request is made, a judge may suspect that the reason is the defendant’s
intention to perjure himself, but there are many other reasons that would
support a defense lawyer’s request to withdraw from a case.
From a practical point of view, appointing a new defense
attorney may not be any solution at all. If the client reveals his intentions
to the second lawyer, the same problem will present itself. Even if the client
remains silent, the second lawyer, like the judge, may figure out what’s going
on. For this reason, some judges may deny the substitution request. In that
event, the first lawyer might ask to withdraw and ask that the client proceed
on his own. In one case, the Supreme Court approved of an attorney’s statement
to his client that if he gave perjured testimony, the lawyer would question
him, effectively cross-examining his own client and exposing the lies. (Nix v.
Whiteside, 475 U.S. 157 (1986).)
Defendants who understand the consequences of telling their
lawyers of their plan to testify falsely (or offer witnesses who will lie),
draw one obvious conclusion: Don’t reveal your plan. But hiding one’s intention
to testify falsely has grave possible consequences: When your testimony is
based on a lie, it may be very hard, if not impossible, for your lawyer to
defend you against attacks that will come in the form of cross-examination by
the prosecutor. And remember—many times, the truth “will out,” even in the most
carefully crafted stories. When defendants are exposed as liars on the stand,
it never goes well, with the jury or with the judge at sentencing time.
Finally, witnesses who perjure themselves face the possibility of a criminal
charge of perjury, which is a serious felony.
by: Janet Portman, Attorney
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