A Criminal Defendant's Testimony

Rule 3.3(a)(3) gives a defense lawyer the same two commands it gives every lawyer: do not offer evidence you know to be false, and take reasonable remedial measures once material false evidence has been offered. Its last sentence then makes a single exception. A lawyer “may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.”¹ The exception withdraws a permission and nothing else. The ban on known falsehood and the remedial duty contain no carve-out for criminal defendants.²

The carve-out reflects the special protections historically given to criminal defendants.³ An accused person may take the stand even when the lawyer thinks it a bad idea, may invoke the privilege against self-incrimination, and may represent himself. A defense lawyer too concerned about candor to the tribunal could interfere with those rights, and that risk was the heart of the defendant’s argument in Nix v. Whiteside.⁴

Three questions follow. Nix answers the first: the accused’s constitutional position includes no right to testify falsely. The carve-out answers the second: only knowledge, never mere belief, lets a lawyer refuse the accused’s testimony. The third, what a lawyer who knows may do when the client insists on testifying anyway, has produced the narrative approach and the rule’s rejection of it.

No Right to Commit Perjury

In Nix v. Whiteside, the Supreme Court decided whether a criminal defendant’s Sixth Amendment right to counsel is violated when his lawyer refuses to cooperate in presenting perjured testimony at trial.⁵ The answer determines whether a lawyer’s refusal can itself become a constitutional wrong.

Robinson, the defense lawyer, had told Whiteside that he could not allow false testimony: it would be perjury, and the lawyers, as officers of the court, would be suborning it. If Whiteside testified falsely, Robinson said, he would have a duty to advise the court, would probably be allowed to try to impeach the testimony, and would seek to withdraw.⁶ Whiteside did testify. Robinson restrained him only from testifying falsely and helped him develop the basis for his fear that Love was reaching for a gun. Robinson revealed no client communication until Whiteside’s post-trial attack on his performance compelled him to.⁷ The Court held that the representation fell well within accepted professional standards, whether the warning is seen as a successful attempt to dissuade or as a “threat” to withdraw and disclose.⁸

The Court first bounded counsel’s duty of loyalty. Counsel owes the client an “overarching duty to advocate the defendant’s cause,” but that duty is limited to legitimate, lawful conduct compatible with a trial as a search for truth. Counsel must take all reasonable lawful means to reach the client’s objectives, yet may not assist the client in presenting false evidence or otherwise violating the law. Professional codes have said so since the 1908 Canons, and the Model Code and the Model Rules do more than authorize disclosure of client perjury; they require it.⁹ (The opinion cites the Model Rules provision as Rule 3.3(a)(4); the duty now sits in paragraph (a)(3).) A lawyer who follows those norms breaches no professional duty, and without a breach there is no deprivation of the right to counsel under the Strickland standard.¹⁰

Nor did Robinson force Whiteside into an impermissible choice between counsel and testimony, because no permissible choice to testify falsely existed. A lawyer who persuades the client to testify truthfully, or who withdraws, deprives him of neither the right to counsel nor the right to testify truthfully. At most, Whiteside lost the assistance of counsel in presenting false testimony. The right to counsel includes no right to a lawyer who will cooperate with planned perjury, for such a lawyer risks prosecution for suborning perjury and discipline up to suspension or disbarment.¹¹

The warning also breached no confidence. The duty of confidentiality “totally covers” a client’s admission of guilt, but it does not extend to a client’s announced plan to commit a future crime.¹² A defendant who confesses the killing stays protected; a defendant who announces that he will lie does not.

A separate opinion concurring in the judgment agreed that this lawyer’s actions were a proper way to provide effective representation, but it marked the decision’s limits. Reviewing a pretrial threat to expose perjury that had not yet been committed, and may have been prevented by the threat, differs from reviewing a threat that was carried out. The harder questions, what a lawyer must, should, or may do after the client has given testimony the lawyer does not believe, stayed open, and their answers may “well be colored by the particular circumstances attending the actual event and its aftermath.”¹⁵

Commentary adds that the lawyer’s duty to remedy a criminal defendant’s false testimony is an extraordinary departure from the general duty of confidentiality, one not followed in every jurisdiction. It poses significant problems for effective criminal defense advocacy and is reserved to exceptional circumstances where the falsity of the testimony is manifest.¹⁶

Reasonable Belief Is Not Enough

The carve-out turns on what the lawyer knows. For any other witness, a reasonable belief that the evidence is false permits refusal. For the accused, the rule “does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false,” and unless the lawyer knows, “the lawyer must honor the client’s decision to testify.”¹⁸ The same degree of doubt therefore produces opposite results depending on who would take the stand.

A lawyer who offers doubtful testimony from the accused commits no candor violation. The ban reaches evidence the lawyer knows to be false, and a lawyer who only believes may let the trier of fact determine its validity.¹⁹ Courts guard that line. Because the accused holds the rights to take the stand and to avoid self-incrimination, courts have at times been slow to find that a defense lawyer actually knew the testimony was false, as McDowell v. Calderon illustrates.²⁰ A hunch, an implausible story, or an account that has shifted usually amounts to belief or suspicion, and then the lawyer calls the client.

Knowledge changes the analysis completely, because the carve-out then stops mattering.

The Narrative Approach and Court Orders

Once the lawyer knows, the rule’s first two sentences bind the defense lawyer as they bind anyone, and neither contains an exception for criminal defense.²⁴ Suppose dissuasion fails and the client insists on testifying. Some commentators, viewing disclosure of anticipated client perjury as fomenting confusion in the courtroom and damaging the relationship between defense counsel and the defendant, suggested the narrative approach as a workable alternative.²⁵

An early draft of the American Bar Association’s standards offered the technique as a compromise for intended perjury disclosed during trial, when withdrawal would raise difficult questions of a mistrial. Counsel could let the defendant take the stand but decline to assist by direct examination, and the defendant would give the false version in narrative form, unaided. Counsel’s silence was thought to signal, at least to the presiding judge, that counsel considered the testimony false and was disassociating from it, and counsel would not discuss the testimony in closing argument.²⁶

Critics find the approach wanting on both sides. As to the client, Professors Hazard, Hodes, Freedman, and Smith, and attorney Peter Jarvis, contend that it harms him; Professor Silver observes that the lawyer’s silence, refusal to ask questions, and failure to comment on the testimony in summation “telegraph[s]” to the jury that the lawyer believes his own client testified falsely.²⁷ As to the tribunal, Professors Rotunda and Dzienkowski argue that even a narrative leaves the lawyer sufficiently involved that the duty to correct the false testimony persists and disclosure to the tribunal is still required.²⁸ Most courts that considered the approach rejected it, although the Eighth and Ninth Circuits approved a “free narrative,” and the Model Rule as finally promulgated rejects any participation or passive role by counsel in letting perjury be presented without challenge.²⁹

Comment 7 to the Model Rule accepts only a narrow piece of the idea. It reads: “In some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false.” The reference to “some jurisdictions” can be read as distancing the American Bar Association from any approval. The comment’s practical instruction is plain, though: if the lawyer tries to prevent or discourage the defendant from testifying and the court directs otherwise, the lawyer must accede, and if the court allows a narrative statement, the lawyer must acquiesce.³⁰

Yielding to the order governs the form of the testimony, not the rest of the lawyer’s duties. The rule’s remedial duty reaches material false evidence offered by the lawyer’s client, not only evidence the lawyer elicits.³¹ The critics’ point is that a narrative therefore does not end the duty to correct.³²

A lawyer cannot avoid the problem by refusing to call the client. The discretion to refuse doubtful evidence does not reach the accused’s testimony, so a lawyer who merely believes the client will lie has no authority to refuse at all.³³ Even a lawyer who knows must accede when the court directs otherwise.³⁴

Nor does the rule excuse defense counsel from the duty. Its first two sentences contain no exception for criminal defense,³⁵ and the final Model Rule rejects any participation or passive role by counsel in letting perjury be presented unchallenged.³⁶

Jurisdictions vary at the edges. One version states the doubtful-evidence provision with no mention of a criminal defendant: “A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.”³⁷ Another keeps the Model Rule’s exception and adds that, “in a criminal matter, the lawyer shall not participate with the client in the presentation of the client’s testimony which the lawyer knows to be false,” and it requires remedial measures to be taken “timely.”³⁸ A rule can also confine the narrative device, for example by allowing it only when the tribunal orders it. An exam answer should apply the Model Rule unless the question names a jurisdiction, and should treat a court-ordered narrative as the one accommodation the comment recognizes.