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DEFENDANT WANTS TO TESTIFY AND LIE - MN Bench Book - Trial Procedures & Practices for Judges
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DEFENDANT WANTS TO TESTIFY AND LIE

From MN Bench Book - Trial Procedures & Practices for Judges

Click on “TRIAL PROCEDURES & PRACTICES FOR JUDGES” above to return to main page


THE DEFENDANT WANTS TO TAKE THE STAND AND TESTIFY AND HAS INFORMED HIS ATTORNEY THAT HE INTENDS TO LIE DURING HIS TESTIMONY- WHAT SHOULD THE DEFENSE ATTORNEY AND THE JUDGE DO?

“The most weighty decision in a case of possible client perjury is made by the lawyer who decides to inform the court, and perhaps incidentally his adversary and the jury, of his client's possible perjury. This occurs when the lawyer makes a motion for withdrawal (usually for unstated reasons) or allows his client to testify in narrative form without questioning from counsel.”[1]

THE FOLLOWING TWO DYNAMICS ARE IN CONFLICT

  1. “The Supreme Court has explicitly recognized the constitutional right of the defendant to testify.”[2]
  2. “A lawyer may refuse to offer evidence that he reasonably believes is false.” Minnesota Rules of Professional Conduct,[3] Rule 3.3(a)(4)(c). “This rule is fully consistent with the obligation under the Constitution to establish a firm factual basis for believing the client intends to testify falsely.”[4]

“Because of the gravity of a decision to notify a court of potential client perjury, a reasonable lawyer would only act on a firm factual basis that the client defendant is going to lie if allowed to testify.”[5] “Once this (notification to the court of impending perjury by the defendant) has been done, the die is cast. The prejudice will have occurred. At a minimum, the trial court will know of the defendant's potential perjury. For this reason, defense counsel must use extreme caution before revealing a belief of impending perjury.”[6]

“Before disclosing to the court a belief of impending client perjury, not only must a lawyer have a firm factual basis for the belief that his or her client will commit perjury, but the lawyer must also have attempted to dissuade the client from committing the perjury.”[7]

“It is . . . ‘the rarest of cases’ where an attorney should take such action.”[8]

Once the disclosure of the potential client perjury has occurred, the trial judge can limit the resulting prejudice by:

  • “[P]reventing further disclosures of client confidences”[9]
  • Discuss the conflict with only the attorney and his client present[10]
  • Informing the attorney of the obligation to his client[11]
  • Informing the client of her rights (to remain silent or to testify) and determining whether she desires to waive any of them[12]
  • Advise the defendant specifically of his right to testify and determine whether the defendant understood his rights[13]
  • Informing the defendant of “his attorney's ethical obligation not to place false testimony before the court”[14]
  • Advising the defendant that “if he took the stand, his lawyer would be required to refrain from questioning [the defendant] on issues which the lawyer believed [the defendant] would perjure himself”[15]
  • Informing the defendant “would have to testify in narrative form”[16]
  • “Directly ask the defendant if wished to testify”[17]
  • “Impress upon defense counsel and the defendant that counsel must have a firm factual basis (to believe the defendant will commit perjury if allowed to testify) before further desisting in the presentation of the testimony in question”[18]



References:

  1. United States v. Long, 857 F.2d 436, 447 (8th Cir. 1988).
  2. Id. at 444 (quoting Rock v. Arkansas, 483 U.S. 44, 49 (1987) (stating “it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense”)).
  3. Minn. R. Prof’l Conduct 3.3(a)(4)(c) (2010).
  4. Long, 857 F.2d at 445 n.5.
  5. Id.
  6. Id. at 447.
  7. Id. at 446 n.6 (citing Whiteside, 475 U.S. at 169).
  8. Id. at 447.
  9. Id. at 446.
  10. Id.
  11. Id.
  12. Id.
  13. Id.
  14. Id.
  15. Id.
  16. Id.
  17. Id.
  18. Id.