A Lying Witness?

What are the ethical obligations of a defense attorney in a Utah criminal case when the attorney does not believe the anticipated testimony of the client or another defense witness?

A criminal defense attorney can be faced with a witness or a client who proposes to testify to something that the attorney does not believe. Under the Utah Rules of Professional Conduct, a criminal defense attorney has both a duty of loyalty to a client and a duty of candor to the court. When faced with the potential of putting a witness on the stand who intends to commit perjury, these duties come into conflict.

While the duty of candor to the court takes precedence over the duty of loyalty to a client, there is an important distinction to be made between "believing" that your client is lying and "knowing" that your client is lying.

Utah Rules of Professional Conduct: Rule 3.3

Utah's Rule 3.3 addresses an attorney's duty of candor toward the tribunal, speaking generally in terms of "knowingly" making a false statement to the court, offering evidence that the lawyer "knows" to be false, etc. The speaks in mandatory terms, requiring that an attorney "shall not" knowingly present false evidence to a court or otherwise mislead a court on factual or legal matters.

Rule 3.3(a)(3) addresses a situation in which an attorney may not 'know" that the evidence is false, but instead only "believes" the evidence to be false. The rule states that a lawyer "may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false." But since this exception specifically does not apply to the testimony of a criminal defendant, just "believing" that a defendant/client is lying is not enough to trigger the Rule 3.3 prohibitions in the context of a criminal defense case.

In a criminal case, unless the attorney "knows" that the defendant's proposed testimony is false, the attorney's duty of loyalty requires that the attorney not take action that would be adverse to the client's interest.

The following comments from Rule 3.3 are also informative:

Comment 6 addresses potential courses of action that an attorney may take when faced with a client who appears intent on testifying falsely. "If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false."

Comment 7 addresses the potential conflict between the constitutional protections afforded a criminal defendant and the ethical obligations required of an attorney. "The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. In some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements."

Comment 8 a discusses issues relating to an attorney who may not "know" the evidence to be false, but has a reasonable belief that the evidence is false. "The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood."

Comment 9 addresses the collateral consequences that an attorney may suffer by presenting (in a non-criminal case) evidence that the attorney reasonably believes to be false. "Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer’s ability to discriminate in the quality of evidence and thus impair the lawyer’s effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify."

Finding a Utah Criminal Defense Attorney

Facing criminal prosecution in Utah presents a variety of challenges. Having a seasoned criminal defense attorney on your side can give you the best chance of success. As a criminal defense attorney serving individuals throughout Utah, Stephen Howard has assisted clients and defended their rights from initial police investigations through jury trial and appeal. He has a track record of obtaining real results for his clients in serious felony and misdemeanor cases.

If you have been charged with a crime, contact us today to see how we can help.