June 17, 2022

Podcast - A Tortured Journey with the Lying Witness

Ethical Witness Preparation Series

In the third episode of his "Ethical Witness Preparation" podcast series, "A Tortured Journey with the Lying Witness," litigation attorney Dan Small takes an in-depth look at a Massachusetts Supreme Judicial Court Rule and the impact it can have in civil and criminal cases. 

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Podcast Transcript

Any analysis of the ethics of witness preparation must really begin with the extreme case. The client who has committed – or intends to commit – perjury. In the previous two episodes, we looked at the realities of the situation and the four challenging choices for addressing it, what I called the "Four Horsemen of the Lying Witness Apocalypse." It is a real and difficult dilemma, and there are no easy answers. We need a GPS and a tour guide to navigate this problem, and perhaps a strong amber liquid to smooth the twists and turns of such a journey. Thankfully, many states have rules on the issue to aid our navigation. Unfortunately, many of them are not as much help as we would like. The Massachusetts Supreme Judicial Court Rule 3.3., Candor Toward the Tribunal, is one such example. In this episode, we'll take a look at Rule 3.3 and see what navigational tools it offers us.

Rule 3.3., Candor Toward the Tribunal

The first fork in the road is between civil and criminal matters. Rule 3.3(a)(4) states that a lawyer "shall not knowingly...offer evidence that the lawyer knows to be false." In a civil case, a lawyer "may refuse to offer evidence that the lawyer reasonably believes is false." Next, the Rule's Comment says a lawyer should try to persuade a client that the false evidence should not be offered or, if it has been offered, that its false character should be immediately disclosed. What happens if a lawyer finds out a client has offered false testimony? The Rule states the lawyer must take "reasonable remedial measures." Alas, The Rule does not define "reasonable remedial measures," but the Comment does allow for disclosure "if necessary to rectify the situation." It recognizes the potentially "grave consequences" of such a disclosure but emphasizes that protecting the integrity of the system is more important. In the end, as far as civil cases go, the Rule is fairly clear. On the other hand, the Rule is much less clear about perjury by a criminal defendant. The basis for this distinction is the "special constitutional concerns" such a situation triggers in a criminal case. Here, persuasion is the starting point. Rule 3.3(e) states a lawyer "has a duty to strongly discourage the client from testifying falsely, advising that such a course is unlawful, will have substantial adverse consequences, and should not be followed. While it is hard to imagine a criminal defendant who does not know that perjury is unlawful, the duty to persuade is real. Few of us are as good liars as we think we are because our "little white lies" in casual conversation have never been exposed to the harsh glare of the courtroom. Clients need to understand that difference. If persuasion is unsuccessful, withdrawal is the next option.

Returning to Rule 3.3(e), we find two possibilities: 

1) If the lawyer discovers the client's intent to commit perjury before accepting representation, the lawyer "shall not accept the representation."

Or 2) If the lawyer discovers it before trial, the lawyer "shall seek to withdraw from representation."

Seems clear cut, right? However, relying on withdrawal raises some important questions. It may be an easy way out for the lawyer, but perjury affects more than lawyers. It affects the entire justice system. If an honest lawyer withdraws because a client intends to commit perjury, that does little or nothing to prevent the perjury. Presumably, the client will just do a better job of hiding their intent from the next lawyer, or sadly, find a lawyer who doesn't care. That leaves two situations in which the lawyer may end up staying through trial. First, the lawyer is unable to obtain permission to withdraw. The Rule does not provide guidance on the standards for such a motion, but recognizes it could be rejected. The second scenario is that the trial has already started and "seeking to withdraw will prejudice the client." But arguably, a lawyer withdrawing in the middle of a criminal trial will almost always prejudice the client. So we have a lawyer, in trial, with a client who intends to commit perjury. What then? According to Rule 3.3(c), the answer is not much. First, a lawyer "may not prevent the client from testifying." Second, "the lawyer shall not reveal the false testimony to the tribunal." Ultimately, the Rule comes down in favor of client confidentiality, and the result is perjury. The Rule's only answer is for the lawyer to limit their involvement. It's the old idea of a "narrative." Don't participate or actively assist in the testimony, just let it happen. It's a strange and disturbing scene to contemplate: An officer of the court, an advocate for a client, putting the client on the stand to commit perjury, then just standing back and letting it fly. Certainly, the attorney-client privilege is an important part of our system of justice, but allowing that privilege to shield perjury is troubling. Is there really nothing more an attorney can do than stand by and watch the show? In criminal cases, apparently not.

Despite this apparently troublesome outcome, what Massachusetts' Rule does show is that there are no easy answers along this journey, even with the navigational tools at our disposal.

In the next episode, Finding the Balance, we'll take a closer look at one of the many stops along this path: the difference between preparation and improper coaching.

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