False Testimony by Criminal Defendants

Still Unanswered Ethical and Constitutional Questions

The ethical obligations of a criminal defense lawyer whose client intends to or has testified falsely have been the subject of debate for more than a quarter century, yet they remain unclear. In this article, the author analyzes the impact of revised Model Rule 3.3 on this issue. The author concludes that the revised rule has failed to provide clear answers to the three major questions that arose under prior Rule 3.3: When does a lawyer have sufficient knowledge to take action under the rule? What should a lawyer do if the lawyer learns of the client’s intention before the testimony is offered? To what extent do constitutional requirements trump a lawyer’s ethical obligations under Rule 3.3?The author argues that the revised rule poses a number of interpretative issues. His surprising conclusion is that the revised rule, along with developments that have taken place in the states, will result in use of the narrative solution to a much greater extent than the drafters may have in-tended.A number of commentators have argued that the Supreme Court’s decision in Nix v. Whiteside has laid to rest the constitutional issues raised by Rule 3.3. The author argues that, when properly analyzed, Nix should be viewed as a constitutional outlier. The facts of Nix present almost the weakest case imaginable for finding a Sixth Amendment violation, and the decision does not address Fifth and Fourteenth Amendment issues. In Nix, attorney Robinson remonstrated with his client and successfully prevented him from testifying falsely. His client did in fact take the stand, testified truthfully, and presented the substance of his claim of self-defense. In other cases, where defense counsel goes beyond persuasion to prevent a defendant from testifying falsely or when the lawyer’s actions prevent the client from testifying at all, constitutional violations may well occur.

The full text of this Symposium is available to download as a PDF.