January 20, 2015

A quick review of Rule 3.3

There are times when a trial lawyer will face the ethical dilemma of whether or not to put a certain witness on the stand, particularly if he believes the witness may not tell the truth under oath. On one hand, a trial lawyer’s first obligation is to his client -- to present the best case he can; however, the lawyer also has a legal obligation not to put a lying witness on the stand.

Take this case, for example: A trial lawyer, let’s call him Jeremiah Rutledge, is representing a defendant charged with murder. The defense is based on an alibi: the defendant has told Rutledge he was with his dad the evening of the crime.

Dad, a World War II veteran, says when interviewed by Rutledge that he cannot be sure but does not think his son was with him at the time of the crime. Rutledge then tells his client that the father certainly cannot be called as a witness.

The next day, there is a knock on Rutledge’s door. It’s his client’s father. The man tells Rutledge that the previous night he went out drinking with his son and now remembers for sure that his son was with him at the time of the crime. The father states definitively, “I am prepared to testify as to the truth.”

Rutledge does not believe Dad’s new story, yet he also cannot rule out that Dad had a faulty recollection earlier and is now telling the truth. Rutledge is facing a classic ethical dilemma: If he does not call the dad as a witness, his client and the father will be furious and will likely not pay the legal fees they owe him. If Rutledge does call the dad as a witness, he could be violating Rule 3.3 of the Rules of Professional Conduct. What should he do?

A good start would be for Rutledge to refresh his knowledge of Rule 3.3, which provides that a lawyer must not knowingly offer evidence that he or she knows to be false. If a client or witness called by the lawyer has offered material evidence that the lawyer subsequently ascertains is false, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the court. What’s more, with the exception of the testimony of a defendant in a criminal matter, a lawyer may refuse to offer any evidence he reasonably believes is false. There is no question that Rutledge is prohibited from knowingly presenting evidence from a witness that Rutledge knows is not true.

However, Rutledge’s ethical dilemma is more complicated. In calling both the defendant and his father to the stand, Rutledge could be presenting perjurious testimony from both men. While arguably his client has constitutional rights to take the stand and be represented by counsel, Dad does not.

If Rutledge knows that his client is lying or that the witness will offer perjurious testimony, the commentary to the rule offers some help: He should try to dissuade them from presenting false testimony. Rutledge could suggest to his client and the father that the testimony would be so transparently false that the jury would recognize the testimony for what it is, and the defendant would be doomed. He should also advise the father of the consequences of presenting perjurious testimony and of Rutledge’s own duty of disclosure to the court.

If Rutledge gives such advice, and his client and his father clearly state their intention to testify falsely anyway, Rutledge could either withdraw from representation or limit his examination to subjects of which he believes the client and father will testify truthfully, Another option is to disclose to the court the proposed false testimony.

These options do not address what may be the most perplexing question of all: When does a criminal defense attorney like Rutledge “know” that his client or witness will testify falsely? In this case, Rutledge comes to the conclusion that, while he is suspicious of the veracity of the testimony, he really does not “know,” and therefore he proceeds with the alibi defense. He calls his client and the client’s dad to the stand. Is he correct in doing so?

Under Model Rule of Professional Conduct 1.0(f), “knows” is defined as denoting “actual knowledge of the facts in question.” The rule further states that the lawyer’s knowledge may be inferred from the circumstances. A witness’s announcement that he will testify falsely is sufficient to cause the attorney to act to prevent the testimony. Rutledge could firmly believe that the testimony would be false even when the witness insists that it is true. Nevertheless, Rutledge would not be required to take action unless he has a firm factual basis to believe the facts are contrary to the proposed testimony.

Post-script: The end result was a guilty verdict. The jury, upon being questioned with permission of the court, revealed that the alibi defense was a perfect failure. Hopefully this plunge into the world of legal ethics was not.