What is a criminal defense attorney to do when the attorney believes that their client may “lie” when he or she testifies?
A criminal defense attorney has an obligation to present his clients defense aggressively and at all times to make certain that his clients’ rights are protected. Many lawyers believe that they have an ethical obligation to withdraw from the defense of their client if they believe that their client is likely to give false testimony in a court proceeding. The Court of Appeal recently in People vs. Bolton made it clear that a lawyer may not legally withdraw from their defense of a client in such a situation.
There are two different and important ways that this issue may arise in a case.
What if I believe my client may commit perjury?
The first situation is where the lawyer “has suspicions” of a “strong belief” that the client may be giving perjured testimony. The law is clear on this point. It is not for the lawyer to speculate on this issue. Unless the lawyer is certain that the defendant will perjure himself then the lawyer must proceed and defend his client aggressively and cannot legally withdraw from the case. What this means is that it is not for the lawyer to “speculate” that the accused may be testifying falsely. Further, what this means is that if your client wishes to testify to one set of facts and those facts are inconsistent with many other witnesses testimony that does not mean your client is offering false testimony. In addition, the fact that your client may have told you at one point in a case one version of events and wishes to testify at the trial to a different version of events that does not make the testimony “perjured testimony”.
I often tell lawyers that “unless the lawyer was personally at the scene of the alleged crime” then the lawyer does not know to a certainly what happened. Criminal defense lawyers are not to attempt to take the place of the judge or jury. Your job as a competent criminal defense attorney is to put forth your clients’ defense in the best way possible under the circumstances.
The fact that you are under an ethical obligation to allow your client to testify to the set of facts he wishes to present does not need mean you cannot explain to the client that you personally believe if your client were to testify as to what he wishes to present as his testimony it would not negatively impact his chances of success at his trial. A competent criminal defense attorney should always render such advise to his client based upon the lawyers experience and understanding of the case. However, in the end it is for the client AND NOT THE LAWYER to make the final decision as to what he will say when he testifies at trial. The fact that you disagree with the clients’ decision does not give you grounds to withdraw as his lawyer nor does it require you to advise the court of the clients’ decision.
What if my client tells me that he is going to commit perjury on the stand? Can I withdraw from the case at that point?
In People vs. Bolton the court clearly stated that even when a client tells you he is about to lie on the witness stand you cannot withdraw from the case. What the court stated in Bolton, supra affirming a prior holding in People vs. Johnson, a 9988 case, 62 Cal App 4th 608, is that an attorney cannot “participate in the presentation of perjured testimony”. However, the court held in Bolton that “allowing the attorney to withdraw as attorney of record do not solve the problem”. The court stated that if the trial court were to allow a lawyer to withdraw under these circumstances this cold lead to “an endless cycle of defense continuances and motions to withdraw by each new attorney assigned to the case”. The court held that in the Bolton case the trial lawyer should have used the “narrative approach” and has his client take the stand and testify in the narrative. This is the approach which is supported by case law. What this means is that a lawyer cannot use as a basis for a decision to withdraw as attorney of record that his client has told him that he will commit perjury. In fact, it would be an ethical violation for the lawyer to notify the court of the clients’ intentions. The lawyers “actions” in asking that the client testify in the narrative will properly alert the court of the situation without words being spoken. This approach allows the client to testify while at the same time does not “involve” the defense attorney as a party to the otherwise unlawful act of perjury.
When a criminal defense attorney “thinks” that his client may be about to commit perjury, you should ask yourself, “What forms the basis for your opinion”. Since one can assume that the attorney was not present at the scene of the alleged crime the only other way a lawyer would know that a client was about to commit perjury is if the client tells the lawyer he is going to do so. The fact that the client has told you at one point in your defense of that client one version of events and at trial wishes to testify to a different set of facts does not make his testimony “false”.
When a client does tell you he is going to “lie on the stand”, at that point you have an ethical obligation to allow him to testify in the narrative and not participate further in assisting the accused in his unlawful act.
However, the law is clear. In either case outlined above you do not have the ethical obligation to withdraw as attorney of record and the trial court would be in error to permit you to do so.