There's another reason people become lawyers?
What should a lawyer do if his client wants to lie on the stand?
- Thread starter BvBPL
- Start date
Perfection
The Great Head.
Depends on jurisdiction, in some places defendants are not sworn in.
It's basically the same up here in a criminal case. In fact, it becomes obvious when the lawyer thinks the client is perjuring. "I have no more questions, your Honor, but my client wishes to continue giving testimony"
Evie
Pronounced like Eevee
Not for what they PLEAD. For what they say during their testimony.
A defendant always has the option not to testify, he cannot be forced to.
A defendant always has the option not to testify, he cannot be forced to.
The lawyer should try to convince the client otherwise, tell the client to plead the 5th if at all possible, and probably not let the client take the stand in the first place if he expressly wants to perjure himself.
The lawyer is there to advocate for the client, to make the best argument to avoid a criminal charge or being held liable for something in a civil case. Knowingly exposing the client to a serious charge like perjury is a bad move to make here.
The lawyer is there to advocate for the client, to make the best argument to avoid a criminal charge or being held liable for something in a civil case. Knowingly exposing the client to a serious charge like perjury is a bad move to make here.
This doesn't happen often. The mid-point trial withdrawal scenario is basically a thorny ethical dilemma beloved by professional responsibility professors. It is an interesting quandary though. In my brief time around criminal trials I never saw it, actually. I was working on low profile one to two day misdemeanor cases where frequently defendants never even took the stand. (In 7 trials, our guy took the stand once.)
In a criminal case the defendant has a slew of important rights that the judge is cognizant of and it is up to the Judge to let you withdraw or not, if that is what the lawyer decides to do. There would be a hearing outside the presence of the jury where you would basically make the request without providing any details so as to not violate attorney client privilege, and presumably a Judge should understand what is going on. At that point if you're let go, you're done. If you're not, you soldier on and probably do the narrative approach since your client insists on testifying. At closing I would not refer to anything that is a lie in any way, you just have to deal with the cards you were dealt and remind everyone of the high burden of proof of the prosecution and point out why they did not prove their case beyond a reasonable doubt. I defer to more experienced hands on that one however.
In a civil case, my area of practice, you rarely are in the sort of situation where you are on the eve of trial and your client is demanding to take the stand and lie. There is too much time and prep before trial in a civil case to let a lying client get to that point. In the one or two or even three year leadup to trial (thanks budget cuts!) you have ferreted out whether your client is lying by then and you have hopefully either cut them loose before the case has advanced significantly or properly resolved the situation. A civil client also does not have the same right to testify that a criminal defendant does.
MobBoss
Off-Topic Overlord
Then you understand it perfectly. Good for you!
Your judges can force an attorney to stay on even after the lawyer asks to withdraw? I'm pretty sure we don't have that up here.
You can usually get a withdrawal, but there are narrow circumstances when you won't.
The thing is, that the lawyer doesn't even have to give reasons up here. The judge can only basically beg the lawyer to stay on.
So here, a corporation has to be represented by a lawyer (except for small claims or Justice of the Peace court). Imagine that on the eve of every trial setting, the corporation's current lawyer withdraws. How would that be handled in Canada?
okay...that seems to be another peculiarity of your justice systems. Over the right of a defendant not to incriminate himself gives him the right to lie as much as he wants at his trial (as long as he doesn't start falsely incriminating others). Refusing to testify may be seen as admission of guilt, so a defendant is at a severe disadvantage if he is under the penalty of perjury at his own trial.
So I would support the defendant in the exercise of what I believe is his right.
BvBPL
Pour Decision Maker
Having had a couple days discussion on the issue, here's my take:
Assuming a criminal defendant and assuming the trial has started, the lawyer should advise the client to tell the truth. Lawyers are explicitly obliged to counsel clients against perjury. If this is fruitless and the client still insists on perjuring herself, the lawyer should conduct the witness examination normally instead of utilizing a narrative defense, and should be free to make reference to the defendant's testimony in closing arguments and elsewhere.
I say this because it seems to be the only solution that does not prejudice the court against the client, properly aligns the attorney’s loyalty with the client rather than the court, and because it is ultimately the responsibility of the client to determine if she will testify and what she will say.
American lawyers cannot abandon their clients willy-nilly; there are specific circumstances where a lawyer can terminate representation. Moral repugnance is one of these conditions, and certainly perjury is a morally repugnant act. However, during a trial a lawyer may not unilaterally withdraw if doing so would prejudice the tribunal against the client. Withdrawal during a trial without truly extraordinary circumstances seems to be prejudicial as it obviously sends a signal both to the jury, the judge, and other actors that there is something very, very wrong with the client here. So withdrawal is out.
The narrative solution, as posited by Illiram and Jollyroger, also seems to be prejudicial. As JR pointed out, the judge is likely to grok that a narrative testimony by a defendant appears to indicate perjury. Now the jury may not pick up on this because the jury can’t be assumed to be legally sophisticated, so narrative testimony may not prejudice against judgement, but that’s not the only consideration. In a non-jury trial, the judge sits in for the jury, and the judge should differentiate between his role as fact finder (jury stand-in) and administer of the court. The problem is you can’t really assume the judge would be able to do that because judges are only human. Even in a jury trial, the judge still determines the ultimate sentence of the defendant and indications that a defendant perjured herself can prejudice sentencing. So because the narrative solution is ultimately prejudicial it should be avoided.
What’s left after we’ve disposed of the possibility of withdrawal and the narrative solution appears to be only representing the client as if nothing untoward is going on. People may suggest that doing so interferes with the lawyer’s duty as an officer of the court to be candid in his interactions with the court. It is certainly true that lawyers have a duty to be candid to the court; however they also have a duty to be loyal to their clients. For a criminal defense attorney, I would argue that the lawyer’s duty to the client should override the duty of candor to the court when those duties conflict. The alternative amounts to making the defense attorney a tool of the prosecution by binding the defense attorney to report on his client, a role that seems to be opposed to both the adversarial system under the common law and the traditional role of the lawyer as a zealous advocate for his client. Because a normative treatment of the client, rather than a withdrawal or narrative approach, best serves the interests of the client, it is appropriate for the lawyer to fulfill his duty of loyalty to the client by adopting a normative approach even if the client perjures herself.
There’s a defined split in the roles and responsibilities of lawyers and clients that supports client autonomy to perjure herself on the stand. The lawyer is responsible for planning and executing much of the representation of the client, but the client is the ultimate decider on whether or not she wants to take the stand, what she wants to plead, and whether to accept a plea bargain or settlement. So ultimately the lawyer cannot control whether or not his client takes the stand, and the lawyer certainly can’t force a client to say what the lawyer wants her to say on the stand. As such, the lawyer should not feel responsible for a client’s decision to perjure herself on the stand provided the lawyer appropriately advised the client not to perjure herself. Because the lawyer is not capable of controlling his client and because he is not responsible for the client’s decision to perjure herself, the lawyer should continue to present his defense as if nothing was amiss.
In light of the client’s autonomy in deciding whether or not to testify, it should be noted that a normative approach is the most appropriate when a client perjures herself without first consulting with the lawyer. A lawyer who is blindsided by the client’s surprise decision to perjure herself is best advised to continue with a normative approach of examination because he cannot easily change horses in the middle of testimony.
So because the lawyer must avoid prejudicing the tribunal against his client through his decisions, because the lawyer owes a duty to his client above the court, and because the lawyer cannot ultimately control his client, it seems to be appropriate that lawyers whose clients decide to perjure themselves should treat their clients in a normative manner on the stand.
If anyone has an alternative other than withdrawal or the narrative approach for this dilemma, I would be happy to hear it.
Also, my determination is informed by the fact that a normative approach to examining a perjuring client is permitted by my state’s bar association. Other states may change the calculus by stating that the lawyer’s first duty is to the court, rather than the client or through other means.
Assuming a criminal defendant and assuming the trial has started, the lawyer should advise the client to tell the truth. Lawyers are explicitly obliged to counsel clients against perjury. If this is fruitless and the client still insists on perjuring herself, the lawyer should conduct the witness examination normally instead of utilizing a narrative defense, and should be free to make reference to the defendant's testimony in closing arguments and elsewhere.
I say this because it seems to be the only solution that does not prejudice the court against the client, properly aligns the attorney’s loyalty with the client rather than the court, and because it is ultimately the responsibility of the client to determine if she will testify and what she will say.
American lawyers cannot abandon their clients willy-nilly; there are specific circumstances where a lawyer can terminate representation. Moral repugnance is one of these conditions, and certainly perjury is a morally repugnant act. However, during a trial a lawyer may not unilaterally withdraw if doing so would prejudice the tribunal against the client. Withdrawal during a trial without truly extraordinary circumstances seems to be prejudicial as it obviously sends a signal both to the jury, the judge, and other actors that there is something very, very wrong with the client here. So withdrawal is out.
The narrative solution, as posited by Illiram and Jollyroger, also seems to be prejudicial. As JR pointed out, the judge is likely to grok that a narrative testimony by a defendant appears to indicate perjury. Now the jury may not pick up on this because the jury can’t be assumed to be legally sophisticated, so narrative testimony may not prejudice against judgement, but that’s not the only consideration. In a non-jury trial, the judge sits in for the jury, and the judge should differentiate between his role as fact finder (jury stand-in) and administer of the court. The problem is you can’t really assume the judge would be able to do that because judges are only human. Even in a jury trial, the judge still determines the ultimate sentence of the defendant and indications that a defendant perjured herself can prejudice sentencing. So because the narrative solution is ultimately prejudicial it should be avoided.
What’s left after we’ve disposed of the possibility of withdrawal and the narrative solution appears to be only representing the client as if nothing untoward is going on. People may suggest that doing so interferes with the lawyer’s duty as an officer of the court to be candid in his interactions with the court. It is certainly true that lawyers have a duty to be candid to the court; however they also have a duty to be loyal to their clients. For a criminal defense attorney, I would argue that the lawyer’s duty to the client should override the duty of candor to the court when those duties conflict. The alternative amounts to making the defense attorney a tool of the prosecution by binding the defense attorney to report on his client, a role that seems to be opposed to both the adversarial system under the common law and the traditional role of the lawyer as a zealous advocate for his client. Because a normative treatment of the client, rather than a withdrawal or narrative approach, best serves the interests of the client, it is appropriate for the lawyer to fulfill his duty of loyalty to the client by adopting a normative approach even if the client perjures herself.
There’s a defined split in the roles and responsibilities of lawyers and clients that supports client autonomy to perjure herself on the stand. The lawyer is responsible for planning and executing much of the representation of the client, but the client is the ultimate decider on whether or not she wants to take the stand, what she wants to plead, and whether to accept a plea bargain or settlement. So ultimately the lawyer cannot control whether or not his client takes the stand, and the lawyer certainly can’t force a client to say what the lawyer wants her to say on the stand. As such, the lawyer should not feel responsible for a client’s decision to perjure herself on the stand provided the lawyer appropriately advised the client not to perjure herself. Because the lawyer is not capable of controlling his client and because he is not responsible for the client’s decision to perjure herself, the lawyer should continue to present his defense as if nothing was amiss.
In light of the client’s autonomy in deciding whether or not to testify, it should be noted that a normative approach is the most appropriate when a client perjures herself without first consulting with the lawyer. A lawyer who is blindsided by the client’s surprise decision to perjure herself is best advised to continue with a normative approach of examination because he cannot easily change horses in the middle of testimony.
So because the lawyer must avoid prejudicing the tribunal against his client through his decisions, because the lawyer owes a duty to his client above the court, and because the lawyer cannot ultimately control his client, it seems to be appropriate that lawyers whose clients decide to perjure themselves should treat their clients in a normative manner on the stand.
If anyone has an alternative other than withdrawal or the narrative approach for this dilemma, I would be happy to hear it.
Also, my determination is informed by the fact that a normative approach to examining a perjuring client is permitted by my state’s bar association. Other states may change the calculus by stating that the lawyer’s first duty is to the court, rather than the client or through other means.
This doesn't sound right. It would be very out of step with other common law jurisdictions. Remember that barristers can theoretically be forced to take a case in the first place.
That sort of ambiguity can be pretty expensive to purchase.
I'm not disagreeing with where the lawyer's duty is, but this sounds disturbingly like the lawyer is complicit in the perjury if he knew about the client's intent to present false testimony before taking the stand (and then perhaps asked a particular set of questions to elicit the false testimony). In the case where it is a complete surprise, I think the course of action laid out in the second bolding is probably best.
I have no idea. All of my intuitions were formed by observing the Criminal segment of the Justice System.
So what about a criminal defendant gaming the system by getting a series of attorneys to withdraw shortly before trial? To you make him go pro se at some point?
Perfection
The Great Head.
The lawyer in question would be disbarred for acting too American.
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