False Testimony by Criminal Defendants: Still Unanswered Ethical and Constitutional Questions

Abstract

The ethical obligations of a criminal defense lawyer whose client intends to testify or has testified falsely have been debated for more than a quarter century, yet they remain unclear. This article analyzes the impact of revised Model Rule 3.3 on this issue. It concludes that the revised rule has failed to provide clear answers to the three major questions that arose under its predecessor: When does a lawyer have sufficient knowledge to take action under the rule? What should a lawyer do if the lawyer learns of the client's intention before the testimony is offered? To what extent do constitutional requirements trump a lawyer's ethical obligations under Rule 3.3?

The revised rule poses a number of interpretative issues when applied to a lawyer representing a criminal defendant who the lawyer knows intends to testify falsely. This article concludes that the revised rule, along with developments that have taken place in the states, will result in use of the "narrative solution" to a much greater extent than the drafters may have intended. A number of commentators have argued that the Supreme Court's decision in Nix v. Whiteside has laid to rest the constitutional issues raised by Rule 3.3. In Nix, the Supreme Court addressed whether a lawyer's action to prevent his client from testifying falsely violated the client's Sixth Amendment right to effective assistance of counsel. This article argues that, when properly analyzed, Nix should be viewed as a constitutional outlier, because the facts of the case present an extraordinarily weak situation for establishing a Sixth Amendment violation. Nix does not answer a number of constitutional questions and leaves open the possibility that constitutional violations may be found in other factual settings.

Keywords: false testimony, criminal defendants, ethics, constitutional questions, ethical obligations

JEL Classification: K00