Defense Counsel's Duties When Client Insists On Testifying Falsely
•Rule 3.3(a) prohibits the use of false testimony at trial. Rule
3.3(b) excepts from this prohibition false testimony offered by a criminal
defendant so long as defense counsel seeks first to dissuade the client
from testifying falsely and, failing in this, seeks to withdraw when
this can be done without harm to the client. Where a defendant has been
incarcerated before trial and a continuance on the eve of trial would
cause an extended delay of trial, the obligation to withdraw is removed.
Instead, defense counsel may call the client to testify in narrative
form, but may not assist the client in framing the client's false testimony.
Nor may defense counsel argue a perjurious client's credibility in closing
unless the client has given at least some truthful, relevant evidence.
• Rule 3.3 (Candor Toward the Tribunal)
A lawyer requests an opinion concerning his ethical responsibilities
as defense counsel in a criminal case in which his client wants to present
false testimony in support of a mistaken identity defense.
At the defendant’s initial court appearance, the lawyer had taken
written notes of the client's physical appearance, including a clothing
description. After the hearing, the defendant was detained on bond and
remained incarcerated until trial. On the eve of trial, the defendant
told his attorney that he wished to present a mistaken identity defense
and told him the location of the clothing worn at the time of arrest,
which the jail had mailed to an address provided by the defendant. Upon
examining the clothing, the lawyer became convinced that the clothing
was not the same that his client had worn at the client's first appearance.
After the lawyer confronted his client with his guess that the defendant
had switched clothing with someone in the jail, the defendant confirmed
the attorney's suspicion but reiterated his desire to present testimony
in support of a mistaken identity defense. Counsel attempted to dissuade
the client from pursuing this course of action and advised him that
he could not assist the defendant in presenting false testimony to the
court. He also advised him that the testimony could be easily contradicted
by police officers. The defendant remained set on presenting the testimony.
The lawyer sought informal guidance from this Committee, but the case
resolved itself before such guidance was given. Because District of
Columbia Rule 3.3 differs from similar rules in most other jurisdictions,
the Committee has decided to respond to the inquiry by full opinion.
This inquiry considers three related issues: (1) whether the lawyer
should have moved to withdraw on the eve of trial; (2) what steps, if
any, the lawyer might have taken to assist his client to prepare to
testify before the jury; and (3) what could the lawyer have said in
The obligations of an advocate faced with a threat of perjured testimony
by a criminal defendant have been hotly debated for decades. In the
District of Columbia, this issue has been resolved by the promulgation
of Rule 3.3 of the Rules of Professional Conduct.
The District of Columbia rule evolved out of earlier ABA ethics principles.
In 1969, the ABA adopted Disciplinary Rule 7-102
in its Model Code of Professional Responsibility ("Model Code"),
which as amended in 1974, provided that a criminal defense attorney
faced with the prospect of his client testifying falsely had to (1)
withdraw in advance of the perjured testimony, or (2) report to the
court the falsity of the testimony if the client insisted on so testifying.
See generally ABA Informal Opinion 1314 (Mar. 25, 1975).
At the time DR 7-102 was adopted, the ABA had under consideration draft
Standards Relating to the Administration of Criminal Justice. In 1971
an ABA Advisory Committee on the Prosecution and Defense Functions
submitted a tentative draft which offered new direction to the defense
attorney faced with his client's intent to commit perjury. That solution,
commonly referred to as the "narrative approach," sought to
give more protection to the attorney-client privilege, while limiting
the damage to the tribunal caused by perjured testimony. The narrative
approach was embodied in Defense Function Standard 7.7:
(c) If withdrawal from the case is not feasible
or is not permitted by the court, or if the situation arises during
the trial and the defendant insists upon testifying falsely in his own
behalf, * * * the lawyer should make a record of the fact that the defendant
is taking the stand against the advice of counsel in some appropriate
manner without revealing the fact to the court. The lawyer must confine
his examination to identifying the witness as the defendant and permitting
him to make his statement to the trier or the triers of the facts; the
lawyer may not engage in direct examination of the defendant as a witness
in the conventional manner and may not later argue the defendant's known
false version of facts to the jury as worthy of belief and he may not
recite or rely upon the false testimony in his closing argument.
The narrative approach subsequently enjoyed judicial acceptance, although
critics charged that this approach compromised all the important policies
at issue. "The lawyer [is] sufficiently involved to be morally
culpable, yet the sudden switch of tactics in mid-examination [is] tantamount
to blowing the whistle on the client."
In drafting Rule 3.3 of the Model Rules of Professional Responsibility,
however, the ABA, agreeing with the critics of the narrative approach,
see Comment  to Model Rule 3.3, returned to the approach
of DR7-102, requiring a lawyer to reveal the client's perjury if necessary
to rectify the situation. See id. Comment . In so holding,
the ABA also rejected the "full advocacy" approach, promoted
primarily by Professor Monroe Freedman,
under which a lawyer, to protect client confidences, may knowingly present
perjured testimony if the lawyer cannot dissuade his client from committing
perjury. See id. Comment .
In the District of Columbia, however, the Jordan Committee and the
Board of Governors of the Bar rejected the ABA approach, opting instead
for a rule similar to that advocated by Professor Freedman:
If the lawyer is unable to dissuade the client or to withdraw without
seriously harming the client, the lawyer may, among other things,
go forward with the examination of the client and closing argument
in the ordinary manner.
Submission of the Board of Governors of the District of Columbia
Bar to the District of Columbia Court of Appeals 138 (November 19,
1986). Comment  to the proposed draft made it clear, however, that
withdrawal was the preferred course and that only truly exigent circumstances
would warrant the presentation of perjured testimony. Id.
at 141. The Bar opted for this position because it felt that the ABA
approach put too much strain on the attorney-client relationship in
the criminal setting and would be detrimental to the effective representation
of criminal defendants in the long run. Id. at 142-143. It
rejected the narrative approach because the use of narrative had long
been seen to be tantamount to disclosure. Id. at 142.
- The recommendation of the Bar on this point was not, however, accepted
by the Court of Appeals. Instead, the Court rejected both the ABA
approach and the Jordan Committee approach, and opted instead for
the present language of Rule 3.3, which implements the "narrative
approach." See Proposed Rules of Professional Conduct
and Related Comments 33 (September 1, 1988);
D.C. Rule 3.3(b). In addition, the Court struck comments 12 through
15A, which had explained the approach of the Jordan Committee, and
amended comment 8 to make it clear that false testimony would seldom
be condoned and, equally important, that the manner of its presentation
would be solely by the narrative approach:
 Paragraph (b) allows the lawyer to
offer the false testimony
of permit a client who is accused in a criminal case to
present false testimony in very narrowly circumscribed circumstances
and in a very limited manner.
Id., at 34 (underlining shows Court's additions).
- In response to the Proposed Rule, the Litigation Section of the
Bar endorsed the position taken by the Court, but the majority of
the Courts/Lawyers Section urged a return to the approach recommended
by the Board of Governors. See generally Robert E. Jordan, III, Analysis
of Comments Submitted to the District of Columbia Court of Appeals
in Response to the Court's Order of September 1, 1988, at 59-60 (May
3, 1989). The final version of Rule 3.3 was not changed in response
to these comments.
Application of the Rule to the Present Inquiry
With the history of D.C. Rule 3.3 in mind, its application to the inquiry
at hand is not in doubt.
First, Rule 3.3(b) comes into play when a lawyer "knows"
that his client, the accused in a criminal case, intends to testify
falsely. That requirement is met here, as the attorney's own investigation
was confirmed by his client's admission.
Second, once the Rule comes into play, the lawyer must make a good-faith
effort to dissuade the client from testifying falsely. This was done
here, but to no avail.
Third, if the lawyer is unable to dissuade the client from giving false
testimony, he must seek leave of the tribunal to withdraw unless withdrawal
would seriously harm the client. Comment  to D.C. Rule 3.3 makes
clear that withdrawal is strongly preferred to the presentation of false
testimony, and must be attempted absent serious prejudice to the client.
Here, the case settled prior to the filing of a motion to withdraw.
We are asked, however, to render an opinion on whether such a motion
should have been filed.
The facts here are close, but are sufficient to discharge a lawyer
from attempting to withdraw. At the time the perjury issue surfaced,
it was only a few days before trial, the client was incarcerated, unable
to make bail, and had been incarcerated for some time. It was clear
that withdrawal would have caused a delay and during the delay the continued
incarceration of the client. While pretrial incarceration in and of
itself is a hardship, it is not clear that it amounts to the sort of
legal prejudice whose existence would excuse the obligation to withdraw.
Nonetheless, Comment  to Rule 3.3 does appear to contemplate that
counsel need not move to withdraw on the eve of trial.
Fourth, where counsel remains in the case, Rule 3.3(b) permits counsel
to call the client to testify but such testimony must be solely in a
narrative fashion with respect to any testimony that is false. Counsel
may not examine his client in such a way as to elicit testimony the
lawyer knows to be false, nor may he argue the probative value of the
client's false testimony in closing argument. However, Rule 3.3(b) does
not prevent the lawyer from engaging in normal examination -question
and answer style -- on subjects where the lawyer believes the client
will testify truthfully.
The inquirer asks whether he could assist the client in preparing the
narrative statement he would make to the jury containing the perjurious
testimony. The inquirer fears that refusal to assist defendant's preparation
of the statement would impair the attorney-client relationship. Rules
3.3(a)(2) and 1.2(e) clearly prohibit such assistance, however. Both
rules forbid a lawyer from assisting a client to engage in conduct that
the lawyer knows is criminal or fraudulent. To aid the defendant in
preparing a statement containing false testimony would be assisting
him to do just that. Indeed, we reached the same result under the Code
of Professional Conduct. Our Opinion No. 79 (Dec. 18, 1979), which was
based on DR 7-102(4),(6), and (7), held:
a lawyer may not prepare, or assist in preparing, testimony that
he or she knows, or ought to know, is false or misleading. So long
as this prohibition is not transgressed, a lawyer may properly suggest
language as well as the substance of testimony, and may - indeed,
- should do whatever is feasible to prepare his or witnesses for examination.
The prohibition on assisting a client to commit perjury does not, of
course, prevent counsel from discussing the legal consequences of the
client's proposed course of action. See Rule 3.3(a)(2). Moreover,
the lawyer can ask the client a general question on direct examination
which would elicit the perjurious narrative statement.
Finally, the inquirer asks about the scope of restrictions on his ability
to argue his client's case to the jury. Rule 3.3(b) states that the
attorney shall not argue the probative value of the client's testimony
in closing argument. From the context of this provision, it is apparent
that the attorney is prohibited only from arguing the false
testimony to the jury. Since,
according to the inquirer, the false testimony would have constituted
only a small portion of the defense, the attorney could argue the weight
of the non-perjurious portion of the testimony to the jury. In addition,
defense counsel can always argue that the government has not sustained
its burden of proving the defendant guilty beyond a reasonable doubt.
The inquirer also asks whether it would be appropriate to say in closing
argument: "You heard him [the defendant] say the police arrested
the wrong man" or "If you believe the defendant you should
vote not guilty." Whether such statements are permissible depends
upon the remainder of the defendant's testimony, information this Committee
lacks. If the defendant's testimony would have consisted solely
of false statements regarding his clothing, then for counsel to argue
for the client's credibility would be tantamount to an impermissible
argument for the truth of the perjured testimony. If, on the other hand,
the defendant offers some truthful testimony in his or her defense,
counsel could argue the credibility of that testimony in closing even
though to urge the defendant's credibility when some testimony is false
is to some extent to further the client's perjury.
Inquiry No. 91-6-30
March 8, 1993
- [Return to text] Rule
3.3 provides in relevant part:
(a) A lawyer shall not knowingly:
(2) counsel or assist a client to engage in
conduct that the lawyer knows is criminal or fraudulent,***.
(4) offer evidence that the lawyer knows to
be false, except as provided in paragraph (b).
(b) When the witness who intends to give evidence that the lawyer
knows to be false is the lawyer's client and is the accused in a
criminal case, the lawyer shall first make a good-faith effort to
dissuade the client from presenting the false evidence; if the lawyer
is unable to dissuade the client, the lawyer shall seek leave of
the tribunal to withdraw. If the lawyer is unable to dissuade the
client or to withdraw without seriously harming the client, the
lawyer may put the client on the stand to testify in a narrative
fashion, but the lawyer shall not examine the client in such manner
as to elicit testimony which the lawyer knows to be false, and shall
not argue the probative value of the client's testimony in closing
- [Return to text] DR
7-102(A) provided that "a lawyer shall not ... (4) Knowingly
use perjured testimony or false evidence.... (6) Participate in
the creation or preservation of evidence when he knows or it is
obvious that the evidence is false.... (7) Counsel or assist his
client in conduct that the lawyer knows to be illegal or fraudulent...."
After a 1974 amendment, DR 7-102(B) provided that "a lawyer
who receives information clearly establishing that: (1) His client
has, in the course of the representation, perpetrated a fraud upon
a person or tribunal shall promptly call upon his client to rectify
the same, and if his client refuses or is unable to do so, he shall
reveal the fraud to the affected person or tribunal, except when
the information is protected as a privileged communication.... "
- [Return to text] For
a full discussion of the evolution of the ABA's position, see 1
G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on
the Model Rules of Professional Conduct §§ 3.3:100-3.3:220
(2d ed. 1991 Supp.).
- [Return to text] G.
Hazard & W. Hodes, supra, § 3.3:215, at 602; see
also Charles W. Wolfram, Modern Legal Ethics §
12.5.4 (1986) (criticizing the narrative approach).
- [Return to text] Model
Rule 3.3 provides in relevant part:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact
or law to a tribunal;
(2) fail to disclose a material fact to a tribunal
when disclosure is necessary to avoid assisting a criminal or fraudulent
act by the client;
(4) offer evidence that the lawyer knows to
be false. If a lawyer has offered material evidence and comes to
know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion
of the proceeding, and apply even if compliance requires disclosure
of information otherwise protected by Rule 1.6. (Emphasis added).
- [Return to text] See
Freedman, Professional Responsibility of the Criminal Defense
Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469
- [Return to text] Proposed
Rule 3.3 showed the following changes to the draft submitted by
(b) WHEN THE WITNESS WHO INTENDSTO GIVE EVIDENCE THAT THE LAWYER
KNOWS TO BE FALSE IS THE LAWYER’S CLIENT AND IS THE ACCUSED
IN A CRIMINAL CASE, THE LAWYER SHALL FIRST MAKE GOOD EFFORT TO DISSUADE
THE CLIENT FROM PRESENTING THE FALSE EVIDENCE; IF THE LAWYER IS
UNABLE TO DISSUADE THE CLIENT, THE LAWYER SHALL SEEK LEAVE OF
THE TRIBUNAL TO WITHDRAW
,. IF WITHDRAWL CAN BE ACCOMPLISHED
WITHOUT SERIOUS HARM TO THE CLIENT. IF THE LAWYER IS UNABLE
TO DISSUADE THE CLIENT OR TO WITHDRAW WITHOUT SERIOUSLY HARMING
THE CLIENT, THE LAWYER MAY, AMONG OTHER THINGS, GO FORWARD WITH
THE EXAMINATION IN THE ORDINARY MANNER. THE LAWYER MAY PUT
THE CLIENT ON THE STAND TO TESTIFY IN A NARRATIVE FASHION, BUT THE
LAWYER SHALL NOT EXAMINE THE CLIENT IN SUCH A MANNER AS TO ELICIT
TESTIMONY WHICH THE LAWYER KNOWS TO BE FALSE, AND SHALL NOT ARGUE
THE PROBATIVE VALUE OF THE CLIENT’S TESTIMONY IN CLOSING ARGUMENT.
(Additions are underscored).
- [Return to text] Courts
have required a substantial level of knowledge before the attorney
may take steps to avoid or remedy the purportedly false testimony.
See, e.g., United States ex rel. Wilcox v. Johnson, 555
F.2d 115, 122 (3rd Cir. 1977) (requiring a "firm factual basis");
Shockley v. State, 565 A.2d 1373, 1379 (Del. 1989) (requiring
knowledge "beyond a reasonable doubt" that client will
commit or has committed perjury).
- [Return to text] In
this regard, Comment  states:
Serious harm to the client sufficient to prevent the lawyer's withdrawal
entails more than the usual inconveniences that necessarily result
from withdrawal, such as delay in concluding the client's case or
an increase in the costs of concluding the case. The term should
be construed narrowly to preclude withdrawal only where the special
circumstances of the case are such that the client would be significantly
prejudiced, such as by express or implied divulgence of information
otherwise protected by Rule 1.6. If the confrontation with
the client occurs before trial, the lawyer ordinarily can withdraw.
* * * In those rare circumstances in which withdrawal without such
serious harm to the client is impossible, the lawyer may go forward
with the examination of the client and closing argument subject
to the limitations of paragraph (b).
- [Return to text] Comment
 provides in this respect:
Withdrawal before trial may not be possible, however, either because
trial is imminent, or because the confrontation with the client
does not take place until the trial itself, or because no other
counsel is available.It is unclear whether the Comment simply makes
the factual statement that many courts will not let counsel withdraw
on the eve of trial or whether delay on the eve of trial is a harm
sufficient to excuse a request to withdraw. If there is such harm,
it is perhaps caused by the need for counsel seeking to withdraw
on the eve of trial to give justification for such a motion, since
justification sufficient to obtain a continuance from judges not
prone to grant motions causing last minute trial delays, may itself
risk improper disclosure of confidential information. See
Rules 1.6 and 3.3(d). Indeed, a last minute motion accompanied by
silence might well be tantamount to a statement that the client
wishes to put on perjured testimony.
- [Return to text] ABA
Proposed Standard 4-7.7(c) permitted the lawyer to identify his
client as the defendant and to ask appropriate questions when counsel
believed that the defendant's answers would not be perjurious. From
an advocacy standpoint, the attorney may wish to ask specific questions
on safe subjects both at the outset and conclusion of the testimony,
sandwiching the narrative testimony in between, so as to avoid calling
undue attention to the change in style. See generally People
v. Lowery, 366 N.E. 2d 155, 158 (I11. App. 1977) (holding that
the defendant was not prejudiced by giving narrative testimony where
counsel asked specific preliminary and concluding questions.)
- [Return to text] Proposed
ABA Standard 4-7.7(c) provided that a lawyer may not "argue
the defendant's known false version of facts to the jury as worthy
of belief, and may not recite or rely upon the false testimony in
his or her closing argument."