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Lying on the Stand

What should a lawyer do when their client might lie under oath?

When faced with the dilemma of "knowing" his client intends to commit perjury as a witness during a trial, an attorney must choose between his duty as a zealous advocate for his client and his duty as an officer to the court and justice system. This is not an easy decision. A lawyer should take several preemptive steps to prevent this ethical dilemma from rearing its ugly head.

Below is a brief history of the challenges and differing opinions of how an attorney should approach a client who plans to lie under oath.

In Nix v. Whitside, the United States Supreme Court delved into the quagmire of client perjury and produced a very controversial decision. 475 U.S. 157 (1986) The Supreme Court unanimously held that a lawyer who threatened to reveal that his client was going to lie on the stand did not violate any duties as an advocate. The justices stated that "no person has the right to commit perjury, and no criminal defendant has a right to rely upon counsel to help develop the false testimony." The justices set the tone for ethics by stating that "the prevailing ethical standards confirm that the legal profession has accepted that an attorney's ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and standards of professional conduct."

Although the Whiteside decision established a clear rule that an attorney should report "known" perjury to the judge; other legal scholars and members of legal community disagree that such a simple approach exists. Many lawyers feel that a more "hands-off" approach is appropriate and advocate allowing the adversarial process and jury impressions determine the credibility of testimony under oath.

For example, the National Association of Criminal Defense Lawyers ("NACDL") trumpeted an opposing voice into the legal argument to contrast the Whiteside decision and argued that the most just and fair process stems from allowing a defense attorney to rebut the charges a prosecutor argues in front of a jury. The NACDL believes that since very few defendants/clients reject the advice of their attorney, and do provide false testimony, a lawyer should proceed normally at trial regardless of what the client intends to say under oath.

This is no easy decision for a lawyer and differing opinions by legal scholars open the door for healthy and heated debate.