The Ban on False Evidence

The Ban on False Evidence

A lawyer shall not offer evidence the lawyer knows to be false.¹ That is the core of Rule 3.3(a)(3), and it works at the front end of the proof: it controls what the lawyer puts in, before any witness answers or any exhibit is marked. The rest of the subsection covers false evidence that has already gone in and evidence the lawyer merely doubts, and later sections take those up.

The premise behind the ban is simple. A court opinion drawing on the American Bar Association's amicus brief states it flatly: under no circumstance may a lawyer advocate or passively tolerate a client's false testimony.² The ban fits a trial conducted as a search for truth. The maxim that a lawyer must believe the client, not judge him, offers no cover, because it does not mean a lawyer may honorably be a party to, or give aid in, presenting known perjury.³

The word evidence covers whatever the lawyer puts before the tribunal as proof. Testimony is the usual case, and the lawyer offers it by calling the witness and asking the questions. Documents are covered too. Whatever the client wants, the lawyer must refuse to offer a forged document or to call a witness the lawyer knows will give perjured or other false testimony.⁴ A client who wants to use a letter backdated after the dispute arose presents the plainest case, because the offer itself is the prohibited act. Rule 3.4(b) reaches the step before the offer. The lawyer may not take part in manufacturing false evidence, may not offer fabricated materials for the client's own case, and may not hand counterfeit evidence to another person in the hope that it will be accepted as genuine.⁵

Sworn discovery answers count as well. Interrogatories are answered under oath, so a lie in an answer is perjury just as it is on the witness stand, and no lawyer can assist or countenance that fraud on the court by a client.⁶

The ban takes the false answer from the client and nothing more. Settlement stays open, since no ethical restraint bars settling a case that may go badly or settling while a discovery request is pending, and a truthful answer may carry whatever explanation softens it.⁷ The line to watch runs between cushioning a truthful answer and masking the truth. Stretching an ambiguous question so the client can answer 'yes' and hide the lapse is the tempting shortcut the source warns against.⁸

It does not matter who composes the falsehood. Even when the false representation comes from someone else's mouth, the lawyer may not participate in or condone it.⁹ The false statement the lawyer makes personally is a different scenario. The more common one is a false statement by a witness the lawyer called, and Rule 3.3(a)(3) handles that.¹⁰ A lawyer who questions a witness, knowing the answers will be false, has said nothing untrue personally but has still offered false testimony, because the questioning is the offer.

Knowledge is the trigger. The rule speaks of evidence the lawyer knows to be false, and mere doubt falls under a separate, discretionary provision that a later section covers.¹¹ Some formulations spell out the reach of the ban. One version forbids a lawyer to permit any witness, including a criminal defendant, to offer testimony or other evidence the lawyer knows to be false, and adds that known-false testimony may not be offered in narrative form unless the tribunal orders it.¹²

The client's insistence changes nothing. Comment 6 to Rule 3.3 tells the lawyer to seek to persuade the client otherwise, and if the client persists, the lawyer simply must refuse to offer the false evidence.¹³ Persuasion comes first. It is universally agreed that the lawyer's first duty when confronted with a proposal for perjurious testimony is to try to dissuade the client from it.¹⁴ Refusal is what remains when persuasion fails.

Exam facts often make the lawyer look innocent: the client is the one who swears, a witness rather than the lawyer tells the lie, or the client insists and the lawyer feels bound to obey. None of that changes the analysis. Once the lawyer knows the evidence is false, the only question is whether the lawyer is the one offering it.

Partial Falsity

A witness whose anticipated testimony is false only in part may still be called, but the lawyer must not elicit or otherwise permit the witness to present the portion the lawyer knows to be false.¹⁶ The rule has this shape because the ban targets the lie, not the witness. Excluding every witness who might embellish would sacrifice honest evidence the client is entitled to present, while eliciting the full account would involve the lawyer in the false portion, which is exactly what the rule forbids.

The errors run in both directions. One is refusing to call a mostly truthful witness at all, and the other is calling the witness and eliciting everything because the lawyer is not personally lying. If the witness volunteers the false detail from the stand despite the lawyer's care, the duties for evidence already offered apply, and a later section takes those up.¹⁷