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Prof Responsibility • Candor
PR#075
Legal Definition
Under Rule 3.3, as a criminal defendant has a constitutional right to testify, a lawyer must permit their client to testify in a criminal trial even though they reasonably believe the testimony will be false. If the lawyer knows the defendant's testimony will be false, however, the lawyer must: (1) try to convince the defendant not to testify falsely; (2) if that fails, request permission to withdraw; and (3) under ABA rules, as a last resort, disclose information to the tribunal to set the matter straight (even if the information is privileged or confidential).
Plain English Explanation
Under Rule 3.3, even if a lawyer reasonably believes a criminal defendant will lie, they must still allow them to testify. This protects the defendant's constitutional right to speak at their criminal trial. However, if the lawyer knows for certain the testimony will be false, they must take specific steps:
First, if a lawyer reasonably believes their client might lie on the stand, they should try to convince the client not to testify falsely. Think of it like a coach trying to keep a player from making a bad play—you're guiding them to make the right choice.
But what if the client is determined to lie? Here’s where things get tricky.
If the lawyer knows (not just suspects) the client plans to lie, they must take action. The first step is to ask the court for permission to withdraw from the case. This is like trying to get off a ship you nkow is going to crash into an iceberg. However, the court might say, "No, you can't leave," forcing the lawyer to stay involved.
In that case, under ABA Rules, the lawyer's last resort is to disclose the client's intent to lie to the court. This is a serious move because it can involve revealing confidential information. It’s like blowing a whistle on your own team because the game’s integrity is at stake. However, this disclosure is meant to protect the court from being misled by false testimony, which upholds the justice system's fairness.
First, if a lawyer reasonably believes their client might lie on the stand, they should try to convince the client not to testify falsely. Think of it like a coach trying to keep a player from making a bad play—you're guiding them to make the right choice.
But what if the client is determined to lie? Here’s where things get tricky.
If the lawyer knows (not just suspects) the client plans to lie, they must take action. The first step is to ask the court for permission to withdraw from the case. This is like trying to get off a ship you nkow is going to crash into an iceberg. However, the court might say, "No, you can't leave," forcing the lawyer to stay involved.
In that case, under ABA Rules, the lawyer's last resort is to disclose the client's intent to lie to the court. This is a serious move because it can involve revealing confidential information. It’s like blowing a whistle on your own team because the game’s integrity is at stake. However, this disclosure is meant to protect the court from being misled by false testimony, which upholds the justice system's fairness.
Hypothetical
Hypo 1: Bob is representing Sam, who is on trial for armed robbery. During trial prep, Sam tells Bob he plans to testify that he was at his grandmother's house when the robbery occurred. Bob knows this is a lie, as Sam previously admitted to him that he committed the robbery. Bob explains to Sam that he can't knowingly allow false testimony, but Sam insists on testifying anyway. Result: Bob must first try to dissuade Sam from lying. If that fails, Bob should seek to withdraw from the case. If withdrawal is denied, Bob must disclose Sam's intention to lie to the court, even if it involves revealing confidential information.
Hypo 2: Bob is defending Sam against murder charges. At trial, Sam unexpectedly testifies that he was out of state when the murder occurred. Bob is shocked, as this contradicts what Sam told him earlier. Result: Since Sam has already given false testimony, Bob must take remedial measures. He should first try to persuade Sam to correct the testimony. If Sam refuses, Bob must inform the court that false testimony has been given, without specifying which parts were false.
Hypo 3: Bob is defending Sam in a civil fraud case. Sam wants to testify that certain incriminating documents were forged by the plaintiff. Bob knows this is false based on Sam's previous admissions. Result: Unlike in a criminal case, Bob cannot allow Sam to give false testimony in a civil matter. Bob must either persuade Sam to testify truthfully or not at all. If Sam insists on lying, Bob must withdraw from representation.
Hypo 2: Bob is defending Sam against murder charges. At trial, Sam unexpectedly testifies that he was out of state when the murder occurred. Bob is shocked, as this contradicts what Sam told him earlier. Result: Since Sam has already given false testimony, Bob must take remedial measures. He should first try to persuade Sam to correct the testimony. If Sam refuses, Bob must inform the court that false testimony has been given, without specifying which parts were false.
Hypo 3: Bob is defending Sam in a civil fraud case. Sam wants to testify that certain incriminating documents were forged by the plaintiff. Bob knows this is false based on Sam's previous admissions. Result: Unlike in a criminal case, Bob cannot allow Sam to give false testimony in a civil matter. Bob must either persuade Sam to testify truthfully or not at all. If Sam insists on lying, Bob must withdraw from representation.
Visual Aids
Related Concepts
According to the Duty Not to Contact Represented Parties, which individuals within an organization must an attorney obtain permission from the organization's lawyer before contacting directly?
Can lawyers compensate witnesses?
How do the rules in California differ regarding how a lawyer balances their Duty of Candor with their criminal defendant client's right to testify if they believe the client intends to lie?
In California, can an attorney disclose information to set the record straight if one of their witnesses intends to lie?
What are the 9 Affirmative Duties of a Public Prosecutor?
What is an ex parte proceeding, and how does it affect what a lawyer must disclose?
What is the Duty Not to Contact Represented Parties?
What is the Duty of Candor?
What is the Duty to Produce Evidence?
What must a lawyer do if they know that their witness intends to lie in their testimony?
