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Commonwealth of Massachusetts

June 2004

False Testimony By A Defendant In A Criminal Case: What Do You Know And When Do You Know It?

Jane Rabe, Assistant Bar Counsel

The question of what a criminal defense attorney should do when his client, the defendant, intends to commit perjury in a criminal trial has been a longtime subject of concern and debate. In Matter of Foley, 439 Mass. 324 (2003), a criminal defense lawyer was suspended for three years for assisting and encouraging his client in the preparation of a fabricated defense to a criminal complaint and using the fabricated defense to negotiate with the prosecution. In that case, the lawyer knew the defense was fabricated because he made it up himself. More common, however, are the circumstances presented by a client who wants to testify to a defense that the lawyer believes is false. See Nix v. Whiteside, 475 U.S. 157, 160-161 (1986) (client told lawyer shortly before murder trial that he would be “dead” unless he testified that he had seen the victim with a gun). Mass. R. Prof. C. 3.3(e) provides that a criminal defense attorney “who knows that the defendant, the client, intends to testify falsely…has a duty strongly to discourage the client from testifying falsely, advising that such a course is unlawful, will have substantial adverse consequences, and should not be followed.” How certain the lawyer must be that the proposed testimony is not truthful and what steps the lawyer must take to ascertain the truth will be addressed in this article.

In Commonwealth v. Mitchell, 438 Mass. 535, 544-545 (2003), the Supreme Judicial Court considered the conviction of a defendant on two counts of first-degree murder. Pursuant to Rule 3.3(e), the defendant’s lawyer had the client testify in a narrative that he had not killed the two victims and did not argue that defense to the jury because the defendant had previously admitted to the lawyer that he had killed the victims and his confession was supported by substantial evidence in the case. On appeal from the denial of the defendant’s motion for new trial claiming ineffective assistance of counsel based on the lawyer’s invoking Rule 3.3(e), the Court considered the standard that ought to be applied when determining whether an attorney “knows” that his client’s testimony will be perjurious as well as the appropriate procedure to be followed by defense counsel after making such a determination.

The Court rejected as too lenient the test of whether a lawyer believes in “good faith” that the defendant will testify falsely, citing People v. Bartee, 208 Ill.App.3d 105, 108, 153 Ill.Dec.5, 566 N.E.2d 855, cert. denied, 502 U.S. 1014, 112 S.Ct. 661, 116 L.Ed.2d 752 (1991) (the defendant was not denied effective assistance of counsel or a fair trial by the court’s order requiring him to testify, if at all, in narrative form based upon his lawyer’s “good faith” opinion midway through the trial that the defendant intended to commit perjury). The Court also rejected a standard requiring the lawyer to know “beyond a reasonable doubt” that the testimony is false because that standard would be too difficult to satisfy and would eviscerate Rule 3.3(e).

Ultimately, the Court held that an attorney “knows” that his client intends to commit perjury when he or she has “a firm basis in fact”, citing for this standard the case of State v. Hischke, 639 N.W. 2d 6, 10 (Iowa 2002) (attorney had an objectively reasonable basis for believing that his client intended to commit perjury based upon the client’s previous admission to counsel that the marijuana found in his jacket by the police was his, his subsequent claim that the jacket and marijuana were not his after he learned that the sentence would be enhanced due to a third drug possession conviction, and other objective factors such as the defendant’s statement to the police that the jacket was his but not the contents).

It is not sufficient for an attorney merely to believe that a client intends to commit perjury. As Justice Brennan cautioned in his concurring opinion in Nix v. Whiteside: “Except in the rarest of cases, attorneys who adopt ‘the role of the judge or jury to determine the facts,’…pose a danger of depriving their clients of the zealous and loyal advocacy required by the Sixth Amendment.” Nix v. Whiteside, supra at 189, citing United States ex rel Wilcox v. Johnson, 555 F.2d 115, 122 (CA3 1977). The “firm basis in fact standard” requires more information than mere suspicion, conjecture, or inconsistent statements by the defendant. The attorney must act in good faith upon “objective circumstances firmly rooted in fact” in determining the client’s intent to commit perjury. Commonwealth v. Mitchell, supra at 546. However, the Court declined to impose an independent duty on defense counsel to investigate because such a duty would be “incompatible with the fiduciary nature of the attorney-client relationship.” Id. at 545, citing United States v. Del Carpio-Cotrina, 733 F.Supp. 95, 99 n.9 (S.D.Fla. 1990).

Once the lawyer “knows” the client intends to testify falsely, both Mitchell and Mass. R. Prof. C. 3.3(e) provide guidance to a defense attorney. The appropriate conduct depends on the circumstances facing the lawyer when he or she learns of the proposed false testimony:

First, if the criminal defense attorney discovers the client’s intent to testify falsely prior to accepting the case, he or she must refuse representation.

Second, if the criminal defense attorney discovers the client’s intent to testify falsely after taking the case, the attorney shall attempt a quiet withdrawal. If the attorney discovers the client’s intent to testify falsely before trial, he or she must seek the required permission to withdraw. The attorney should not disclose the perjury. In the motion to withdraw, “disclosure of privileged or prejudicial information shall be made only to the extent necessary to effect the withdrawal.” If it is necessary to disclose confidential or prejudicial information, the lawyer should file the motion ex parte and seek to have the motion heard in camera and the record of the proceeding impounded, except for the order granting the motion to withdraw. Mass. R. Prof. C. 1.16 (b) and (c); Mass. R. Prof. C. 3.3(e) and Comment 8; Butler v. U.S., 414 A.2d 844 (D.C. 1980).

Third, if the criminal trial has begun and the defense attorney discovers that the client intends to testify falsely at the trial, the attorney may seek to withdraw but is not required to do so. The defense attorney should not withdraw if he or she reasonably believes that the client will be prejudiced. If the criminal defense attorney is unable to get permission to withdraw, he or she may not prevent the client from testifying in his or her own defense. See Mass. R. Prof. C. 3.3(e). The client has a constitutional right to effective assistance of counsel, due process of law, and a fair trial, including his right to testify in his own defense. Commonwealth v. Mitchell, supra at 544.

The Mitchell decision requires that the defendant be present at the sidebar conference at which Rule 3.3(e) is invoked. Once the matter is called to the court's attention, Mitchell then indicates that the judge should instruct the lawyer on how to proceed. (“In evaluating the situation, the judge will have to rely on the representations of counsel, which of necessity will be cryptic, because counsel is the one who must make the disclosure while maintaining client confidences and allowing for continued zealous advocacy at trial.”) Before giving instruction, it may be appropriate for the judge to conduct a colloquy with the defendant, “if it appears that the defendant does not clearly understand the situation he has created.”

The attorney is permitted to ask the client to testify in a narrative fashion and to remain standing while the client testifies. In Mitchell, counsel asked his client “‘what do you wish to tell these jurors?’” The attorney may not examine the client or elicit any testimony from the client that he or she “knows” to be false. The attorney is permitted to object to the prosecutor’s cross-examination as appropriate, mindful not to assist the client in presenting false testimony. The attorney must not argue the false testimony in the closing argument or in any other proceeding, including appeals. Mass. R. Prof. C. 3.3(e).

Fourth, if during the client’s testimony, or after the client’s testimony, the attorney “knows” that the client testified falsely, the attorney must confidentially call upon the client to correct the testimony. If the client refuses to follow the attorney’s advice, or is unable to do so, the attorney shall not reveal the false testimony to the court. Mass. R. Prof. C. 3.3(e) and Comment 10 to Rule 3.3(e).

The provisions of Mass. R. Prof. C. 3.3(e) apply only in criminal cases and only to the defendant, not to other witnesses. These special procedures are necessary to protect the constitutional right of the defendant to testify. For a discussion of lawyers’ obligations regarding false testimony of other witnesses in a criminal case or litigants and their witnesses in a civil case, see related articles on Bar Counsel’s Web site “Lies My Client Told Me” and “Getting Defensive: Ethical Obligations of Criminal Defense Counsel” on Bar Counsel’s Web site,

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