On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court. Three resolutions of this dilemma have been proposed. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel.
Another suggested resolution, of relatively recent origin, is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This is a coherent solution but makes the advocate a knowing instrument of perjury. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel.
However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence. Under the Comment to Rule 3. Whiteside, U. The defendant was on trial for murder. The defendant had stabbed the victim after he believed that the victim was reaching for a gun.
The lawyer told the defendant that such testimony would be perjury and that he would withdraw from representation if the client insisted on testifying as such. The lawyer also told the defendant that if he did so testify, he would inform the court of the perjury. A lawyer who would so cooperate would be at risk of prosecution for suborning perjury, and disciplinary proceedings, including suspension or disbarment.
As such, a criminal defendant does not have a right to testify falsely on his own behalf or have the assistance of counsel in doing so. As a result, the Disciplinary Commission has determined that under Rule 3.
The Disciplinary Commission has also determined that these obligations apply equally to prosecutors in a criminal case. Just as a defense attorney would have an obligation to disclose perjury committed by a criminal defendant, a prosecutor would have a duty to disclose perjury committed by a prosecution witness during direct examination.
The duty to disclose the false testimony of the witness would apply regardless of whether the prosecutor deems the false testimony as exculpatory or material under the Brady4 standard. Mark Eiglarsh is a former prosecutor who specializes in exclusively State and Federal criminal defense and forfeiture matters. His web address is www. Please do not include any confidential or sensitive information in a contact form, text message, or voicemail.
The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship. A Fierce Advocate. Published Works. Answer to Issue 1 If a lawyer is certain that his client intends to commit perjury, the lawyer must first attempt to persuade the client to testify truthfully.
Issue 2 A client that you're defending was arrested and booked under the name, "Benjamin Franklin. Answer to Issue 2 A criminal defense attorney, who learns that his client, a defendant in a criminal proceeding, is using an alias, may not inform the court of same.
Issue 3 A client that you're representing states, during her deposition, that she was "far away" from the crime scene on the day that the victim was shot.
Answer to Issue 3 Once an attorney learns that his client intentionally committed perjury during a deposition, he must immediately attempt to persuade that client to reveal the fraud to the court. About the Author Mark Eiglarsh is a former prosecutor who specializes in exclusively State and Federal criminal defense and forfeiture matters. Submit a Law Firm Client Review. Savvy Defendants 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.
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