Donald Liskov of New England Law School
"The function of criminal proceedings is to discover and determine the truth of the charges against the defendant."
I. Introduction
The American criminal law system can afford the legal rights of every anemic criminal. In the process of representing clients, defense lawyers are bound by laws and regulations, case law and the code of ethics promulgated by the American Bar Association (ABA). The criminal law system has two purposes: first, to ensure that criminals enjoy the right to a fair trial; Second, determine the truth. In order to successfully prosecute this case, it is necessary to eliminate reasonable doubt and determine that the defendant is guilty. In the experiment, testimony and facts came from witnesses. From this testimony, the experimenter of facts hopes to determine the truth. In most cases, proper system functions. However, occasionally, the rights of clients, the obligation of their lawyers and the role of systematic truth-seeking will become directly opposite. Client perjury is one of the areas where these opposing forces put defense lawyers in an uncomfortable position.
If yes, take notes to analyze the obligations of defense lawyers in the face of perjury. Review these obligations in the light of professional conduct (model rules) and various judicial opinions.
Two. When it comes to the obligation of a lawyer, when he or she "reasonably believes" that the client intends to provide false testimony, but the client fails to do so, and clearly states his or her intention.
Volunteering as a defense lawyer has the following reasonable beliefs: the testimony of the client may be perjury? Style rule 3.3? It is stipulated that "lawyers can refuse to provide evidence that they reasonably think is wrong". Stylistic rules define "reasonable belief" as "one of the things that lawyers believe in the discussion, and the situation is that the belief is reasonable". Therefore, according to rule 3.3? Testimony from lawyers The client has reasonable reasons to believe that perjury refuses to provide such testimony from any arbitrary authority. Unfortunately, references in other models control supply, and other legal institutions show that it is so easy to solve this problem.
A. Hypothesis
Lawyers represent clients who are suing for attempted theft. The client told the lawyer that he or she was innocent and would never take part in the theft, although the client admitted that he or she was nearby at the time of the crime. The client was arrested the next day and the identity of the victim was confirmed. The lawyer thinks that the victim's testimony can be discredited. The client told the lawyer that he was walking in the nearby street when the robbery happened. Although it is impossible for the witness to confirm the testimony of the client, the lawyer plans to let the client testify in the experiment. Now, in the first two days of the experiment, he will testify about the state of the family's sleep client when the theft occurred. The client's home is 20 miles from the crime scene. What should lawyers do?
B. Choice of lawyers
As a defense lawyer, there are only reasonable reasons to believe that the client's testimony may constitute perjury, but "not knowing" is actually wrong. There are several options. First, lawyers can do nothing. Lawyers can present and debate the testimony of clients to jurors without violating style rule 3.3? Because its supply is not necessary. This may be the best choice for defense lawyers. Goose Appel, arguing about the perjury case of semen client, there is nothing to say. "In a large number of cases, lawyers may have doubts about the honesty of witnesses," said the acting attorney general in Iowa v. Whiteside. If the lawyer is not sure that the evidence is wrong … he should put it in. Therefore, according to style rule 3.3? Lawyers can present suspicious evidence without fear of punishment. According to the assumed facts, lawyers seem to have reasonable reasons to believe that the client will commit perjury. However, lawyers may tell clients to testify and argue this testimony to jurors.
The second option is to try to dissuade clients who provide testimony from making lawyers suspect that they have perjury. Almost all critics, case law and ethics agree that lawyers "should try to persuade their clients to restrain perjury" ... "According to Article 1.2 (d) of the Model Rules," lawyers can discuss the legal consequences of all proposed actions with their clients and can advise or assist their clients to make honest and credible efforts to determine the validity, scope, meaning or application of the law ". Therefore, even if a lawyer decides to give suspicious testimony, he or she should try to dissuade the party who gives perjury. Lawyers should inform clients of the criminal nature of perjury, and other trap issues may be raised during cross-examination and such testimony.
The Concept and Professional Responsibility Committee of the American Bar Association stated that "if a lawyer learns that a client intends to commit perjury in court, the lawyer must inform the client of the consequences of perjury, including disclosing the lawyer's obligations to the court". In addition, model rule 1.2 (e) stipulates that "when a lawyer knows that a client expects professional behavior or assistance that is not allowed by other legal rules, the lawyer shall negotiate with the client about the relevant restrictions on the lawyer's behavior". However, when lawyers only have reasonable belief in the client's perjury, lawyers shall not inform the client that they are obliged to disclose suspicious perjury to the court.
Rule 1.2 (e) only applies to perjury of local clients whose lawyers "know" [FN36]. Lawyers commit perjury, only believe it and lack practical knowledge. Therefore, model rule 1.2 (e) does not apply to perjury presented by clients when lawyers only have "reasonable belief". Similarly, it must be revealed that the official view of American Bar Association Supply 353 does not apply to the perjury of lawyers' clients who lack knowledge.
Although style rule 3.3? Providing a lawyer carefully refuses to provide evidence that he or she reasonably thinks is wrong. After careful analysis, it will be found that refusal is not a feasible option. The moral infringement of other lawyers in the supply of style rules can refuse to provide this evidence.
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& lt/DNT & gt； C. The client's right to testify given by laws and the Constitution
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& lt/DNT & gt； "In a criminal case, the lawyer abides by the client's decision, and after consulting with the lawyer ... whether the client testifies." Although Model Rules 1.2 (a) define Model Obligations Rules 1.2 (d) and (e), these rules only deal with cases where lawyers have "actual knowledge" of the proposed behavior of clients. Therefore, among them, lawyers are willing to consider the reasonable belief that the client intends to commit perjury, and model rule 1.2 (a) requires lawyers to abide by the client's decision to testify.
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& lt/DNT & gt； Rule 1.2 (a) The decision to order a lawyer to obey a client's testimony must logically replace model rule 3.3? . Model Rule 1.2 (a) Testimony states that lawyers are obliged to respect their clients with the necessary language ("will"). On the other hand, style rule 3.3? Lawyers who propose to use any language ("possible") can refuse to provide suspected perjury. Therefore, when the perjury testimony was suspected to be the client, the lawyer did not cautiously refuse to provide it.
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The client committed perjury.
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& lt/DNT & gt； In Rock v. Arkansas, the Supreme Court insisted that "it is impossible to doubt that the defendant in a criminal case has the right to stand on the witness stand and testify for himself". Accordingly, the court ruled that articles 5, 6 and 14 should be amended. On the other hand, it explains that the criminal's right to testify does not include the right to perjury.
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D. Alternative options
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& lt/DNT & gt； Therefore, the question still exists: how can a lawyer abide by model rule 3.3 morally, and can a lawyer reasonably think that refusing to testify is wrong? S statement? Lawyers have three possible options. It can be said that none of them have solved the problem of perjury.
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& lt/DNT & gt； First, if the lawyer intends to make the client perjure himself on reasonable belief, he can seek concessions from the statement and permission from the model rules to withdraw the supply 1. 16 (b) (1). When considering allowing lawyers to make concessions, is it possible for the court to consider various factors, including the proximity to the experiment, the reasons for withdrawing, and all the adverse effects on customers? However, even if the judge allowed the lawyer to make concessions, it did not solve the problem of perjury. The defendant will keep or be assigned new suggestions. Assuming that the defendant still wants to provide the same testimony, he or she may be less honest with his new lawyer. Therefore, if the testimony is actually wrong, all that is achieved is that the second lawyer will not know how to assist in perjury.
In the second case, the new lawyer will reasonably think that the client intends to commit perjury in the future and will also give in. The court may refuse this request. The court did not give in to repeated litigation on behalf of lawyers. This process will only slow down the already overloaded judicial system. Therefore, the second lawyer ended where the first lawyer started. In addition, retreat is full of difficulties, because when lawyers make concessions, judges often ask why. According to the stylistic rules, lawyers are not allowed to reveal the secrets of their clients. So lawyers may only tell the court that there is a moral problem. Lawyers may never show willingness to perjure themselves for their beliefs. In these cases, judges who have not been informed are even less likely to approve lawyers to withdraw their charges.
The other chose it, so that lawyers could disclose the perjury against the court. Unfortunately, if a lawyer chooses this remedy, he or she will probably violate the model rule 1.6. Rule 1.6 stipulates that all information accepted by a lawyer during his client's representation must be kept confidential and shall not be disclosed without the consent of the absent client. Although this information may make lawyers think that clients intend to commit perjury, it is protected. According to model rule 3.3 (b), the obligation of model rule on confidentiality 1.6 can only be violated if the lawyer "actually knows it is necessary to avoid assisting in the crime or cheating by the client". Therefore, the lawyer who divulges confidential information, only based on reasonable belief, the client intends to commit perjury and improperly expose confidential information protected by model rule 1.6.
Lawyer A's last choice is to use the so-called "narrative method". 197 1, this remedy was taken by ABA. Although this part was deleted from the standard in 1979, the review is useful because the court still uses "narrative" today. According to Section 4-7.7, the lawyer instructed the client to testify in narrative form about all events that the lawyer considered as perjury. There is no question-and-answer exchange between lawyers and clients. Although the so-called crime of perjury was raised, the lawyer did not assist in the introduction. However, local clients who want to use "narrative" only have practical knowledge of lawyers who want to commit perjury. The application of the standard is only "if the defendant admits that the crime is established and the lawyer independently investigates and establishes the facts of es's defense lawyer, the admission is true".
In 1983, judging from the adoption of stylistic rules, narrative method is rejected as a feasible suggestion. The American Bar Association did not adopt narrative method when drafting stylistic rules. On the contrary, comment 3.3, which shapes rules, rejects narrative methods. The commentary explains that the narrative "obeys the implied disclosure of information by customers and gets advice". In essence, the American Bar Association believes that the narrative method violates the confidentiality requirements established by model rule 1.6. In addition, ABA official view 353 and the US Supreme Court explicitly refused to use narrative in Nothing v. Whiteside. Therefore, narration is not an option for those jurisdictions that adopt stylistic rules.
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E. Status and federal case law
In the case of sanborn v. state, the court pointed out that "the lawyer's task is not to determine guilt or innocence, but only to present evidence so that any other court or jury can do so". Therefore, a lawyer should not decide what is true and what is not unless there is mandatory support for his conclusion. "When lawyers refuse to follow pattern rule 3.3? When presenting the testimony of the client, he (she) is actually the client's conviction of the crime (that is, perjury) that he did not commit. Just based on the lawyer's belief, the client will commit perjury and be deprived of his basic constitutional rights. The sanborn court also asserted that "it is wrong for M to doubt or determine the testimony of a defendant based on his contradictory statements". Therefore, a lawyer who only believes or suspects that his client has committed perjury shall not refuse to provide such testimony. Style rule 3.3? Faith is not enough to overcome the constitutional rights of clients to get advice, effective assistance, the right to testify and due process of law.
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& lt/DNT & gt； Several federal courts have dealt with this constitutional issue. These two cases in the Circuit Court are particularly striking. First, the former rel of the United States. Willcocks v Johnson, involving a criminal rape case. In the first experiment, the defendant was convicted of rape. Subsequently, he was granted a retrial. In the box state after the second experiment, the defendant and his lawyer argued whether the defendant would testify. The lawyer suggested to the court that she would give in if her client testified against it. According to her behavior, the lawyer thinks that the defendant will commit perjury. At this time, the judge informed the defendant that if he insisted on testifying, his lawyer would be allowed to give in. In addition, the judge told the defendant that he had to test the rest on his behalf. The defendant decided not to testify and the jury found him guilty of rape. The Third Circuit Court continued to "threaten to advise the appellee who was infringed here not only to correct the loss of the sixth right, but also to pry his legal rights from the appellee as a lever to testify". The court found no evidence that the defendant intentionally perjured himself, and held that "a lawyer should not voluntarily perjure himself for the protest of a client who is innocent only with conclusive evidence." Doing so will undermine the cornerstone of our criminal justice system. "What will be discussed is that the Supreme Court insisted in the case of" doing nothing "that the unconstitutional behavior of lawyers cannot threaten the client who intends to commit perjury to withdraw or disclose perjury. However, nothing is superior to willcocks. In willcocks's case, at most, the lawyer has reason to believe that her client will commit perjury. On the other hand, it's nothing. You can find a lawyer's client's practical knowledge of perjury. Therefore, in the case of Wilcox type, there is no uncontrolled content in the collection.
The second federal case is Whiteside v Skur. In Whiteside, there is nothing. Article 8 The Circuit Court is based on the fact that the Supreme Court of Iowa found that the defendant intentionally committed perjury, the lawyer had practical knowledge, and the party intentionally committed perjury. However, in the statement, Article 8 Circuit stated that it agreed with the willcocks standard. The court stressed that mere suspicion is not enough to determine that the defendant will give false testimony.
F. Conclusion
ABA only intends to style rule 3.3? As a means to lawyers (that is, a lawyer who withdraws from the supply may avoid perjury and punishment). If the lawyer refuses to follow pattern rule 3.3? Providing the testimony of the client, the rights of testimony, consultation and effective assistance granted by the client's basic articles of association, and violation of due process of law. Therefore, new experiments will be rewarded to customers. However, the problem of perjury still exists. The lawyer whose client is unknown will give false testimony in the subsequent trial. However, the initial lawyer of the client shall not be punished. Since then, lawyers have followed model rule 3.3? There is no moral infringement.
Rule 3.3? It seems that there is a direct contradiction with the rights granted by the criminal constitution. What would happen if ABA made a separate 3.3 rule to protect lawyers? ABA has done great harm to the legal profession while sacrificing the basic rights of criminals. The rights conferred by the client's constitution should be at the forefront of legal agency. There is no moral obligation in style rules to interfere with the position of customers' basic rights.
According to model rule 3.3, without prior analysis, lawyers have the right to? Refusing to provide evidence that he or she reasonably thinks is wrong. Style rule 3.3? Give lawyers a false sense of security when facing the dilemma of perjury of clients. When lawyers only have reasonable beliefs, clients will commit perjury, and their only remedy is to try their best to discourage clients. If the client insists on testifying, the lawyer must present the client's testimony together with the full and enthusiastic expression in the future.
Three. The lawyer "knew" that the client intended to commit perjury.
Correct, on behalf of the defendant who insists on perjury.
A. When did the lawyer "know"?
Does the lawyer know that the client will provide perjury? This is a threshold problem when analyzing the perjury dilemma of customers. When the previous analysis shows that if a lawyer lacks knowledge of the client's perjury, he or she must produce evidence. The problem is trying to draw a line between "faith" and "knowledge". Style rules define knowledge as "practical knowledge that can be inferred from situations". Because this definition is somewhat obscure, the ethics committee and the court assume the responsibility of defining "practical knowledge". Therefore, the Supreme Court adopted several definitions to define what constitutes the parties' understanding of perjury lawyers.
When the client clearly expresses the intention of perjury, some courts will infer the degree of knowledge of the intended lawyer. In the case of nothing v. Whiteside, the Supreme Court of the United States pointed out that "the obligation of a confidential lawyer completely includes the confession of the client and does not extend to the plan announced by the client to participate in future criminal acts". Although the court pointed out in its previous statement, other courts have also adopted this standard. In addition, ABA official view 353 requires that the establishment of knowledge "clearly states the intention of perjury". There is no indication to what extent the court will find an obvious intention.
Participated in the murder trial in Iowa. Whiteside and two partners went to Calvin's beloved apartment for one night in search of marijuana. Whiteside and Love were involved in the argument. Love lets his girlfriend get his "pieces". Love got out of bed and came back. According to Whiteside, love came under his pillow and began to love him. Reasonable. Whiteside's love stabbed her in the chest. I like stabbing. Whiteside accused and murdered.
Gary Robinson was appointed as Whiteside's attorney. Whiteside told Robinson that the stabbing pain happened when love "pulled out a pistol from under the pillow in the bed". Although he persuaded Love to have a gun, Whiteside admitted that he didn't actually see it. No gun was found in the house. Whiteside spent hours repeating these facts to Robinson. A week before the experiment, Whiteside showed for the first time that he saw the "metal of things" in the hands of love. When Robinson asked about it, Whiteside said, "I'm Howard's chef, for example, a gun." If I don't say I saw it, I'm a Death gun. Robinson believes that if he testifies in court, this statement will be perjury. He showed that in order to defend himself, it was necessary to have a reasonable belief in Whiteside, that is, "he is in danger." However, Whiteside insisted that he saw "metal things". At this time, Robinson told Whiteside that if he made this testimony, he would give in and suggested that the court perjury.
In the test, Whiteside testified that he "knew" that love had a gun, and he thought that love came for that gun. Mentioned that metal is not made of "things". Whiteside was found guilty of second-degree murder.
On appeal, Whiteside demanded that he be deprived of a fair trial. The Iowa Supreme Court refused to overturn the conviction on these grounds. Secondly, Whiteside claimed that he was refused advice and effective help. He applied to the Federal District Court for a writ of habeas corpus, but it was rejected. Article 8 the circuit is distorted and ordered.
In the case of Nothing v. Whiteside, the Supreme Court overturned and upheld Robinson's behavior without resorting to the invalid suggestion in the case of strickland v. Washington. In the statement, the court asserted that "Robinson's statement about Whiteside's autumn was acceptable in strickland under the standard and reasonable professional ethics".
According to the court, there is no case with obvious intention of perjury. In reaching this conclusion, the court relied on the fact-finding results of the Iowa Supreme Court. The State Supreme Court's opinion revealed that the "practical knowledge" standard was not used to determine whether Robinson knew Whiteside would commit perjury.
In the present case, it is suggested that people believe that the defendant's testimony is deliberately untrue for good reason ... [d] Then, Everton's own statement (in front of his original version) he must testify that he loves to own a gun. If he wants to be pardoned, he strongly supports the suggested belief that the defendant didn't see the gun, but he intends to talk about him.
Nothing. The Supreme Court made a hypothetical analysis. Robinson has a practical understanding of the client's intention of perjury. However, if the Iowa Supreme Court finds the factual basis of this hypothesis, it is far from the actual knowledge standard. The Iowa Supreme Court held that only Robinson had good faith and the parties intended to commit perjury. In the absence of anything, the United States Supreme Court should estimate Robinson's character-seeking style rule 3.3? . By arranging it to do so, Robinson's actions may violate Whiteside's advice and effective assistance. Courts that have never correctly applied the standard of practical knowledge have never touched on the real issues raised in this case.
Leaving many unsolved mysteries. The part of the view about moral considerations is interpreted as a declaration. "There is no mistake: the court article is about how to constitute a correct response to a criminal client's suggestion that he will commit perjury without legal effect. This is a pure speech ... lawyers, judges, bar associations, students and other issues that should be understood have not yet been decided. "'
The court is determining whether lawyers who use different standards have practical knowledge. Some courts adopt the standard of "conclusive facts", that is, lawyers must have conclusive facts to prove that their clients will commit perjury. In Whiteside v. Skur, the Supreme Court pointed out that "this will be a rare example of this fact. Lawyers must remember that they are facts, not experimenters, but advocates. In many cases, the credibility of customers will be a problem for jurors. "
Suppose a thief, a customer. As the trial date approached, the client changed his story, from near the crime scene to 20 miles away from home. Based on this, is there a solid factual basis for lawyers to commit perjury? Clients may initially think that the truth will not be believed by lawyers. Maybe the lawyer has reasonable reason to believe that the client wants to commit perjury. However, the change of customers in the story may not provide a solid factual basis for the lawyer's conclusion. The most honest witness, after reflection, exercises the lawyer's understanding. One change of the client in the past is the intention of the pioneer of perjury ... (or sincerely believe that he recalls) the details he neglected before.
When determining the standard of actual knowledge, the two courts used the standard of "excluding reasonable doubt". In the case of federal v. city councilor, the defendant sued and entered a private house, ordered armed robbery and shot one of the residents. The shooting victim managed to shoot and seriously injured the robber. Although injured, the robber was able to escape from the house. The defendant who was shot later went to the local hospital. In order to prepare for the test, the defendant was allowed to meet his lawyer and went to the house under consideration. He asserted that he went there to collect debts in self-defense and shot people there. When testifying after the experiment, the defendant denied that he was stealing the criminal's house. The defendant explained that the gunshot wound was caused by himself when he "messed up" some shotguns in his father's house. The defense lawyer learned that this new version of the defendant's story was during the trial. The lawyer thinks that the defendant's testimony is wrong. The court pointed out that "there can be no reasonable doubt, but the excuse recently discovered by the appellant is manufacturing".
Reasonable questioning standard is a wise move to solve the dilemma of perjury. Perjury is a criminal offence. In order to charge it with a criminal offence, you must have committed or at least attempted to commit a crime. When lawyers try to determine whether the client's testimony is perjury, they are basically forced to make up their minds about crimes that have not yet been committed. The lawyer convicted the client on the basis of perjury. On the contrary, it is impossible to accuse someone of murder when there is actually no murder. People may be accused of attempted murder; However, there is no such charge as attempted perjury. Because perjury is a verbal crime, not a physical crime, the crime will not happen until these words are actually spoken. Perjury is similar to criminal threats. One can't accuse by threatening to try. This is because it is impossible to "know" whether people will threaten others before the language really speaks. In short, lawyers should not be allowed to find out that their clients are not guilty. On the other hand, if the style rules are willing to allow this kind of behavior, there must be evidence to exclude reasonable doubt.
It is extremely difficult for lawyers to "know" that their clients will commit perjury. Models do not rule everything, and case law establishes all bright line tests. Lawyers should solve all questions in a way that is beneficial to their clients. The right to testify and the right to defense of the parties are the basis of criminal justice and adversary system in China. These rights should not be taken away easily.
B lawyer's choice when he knows that the prospective client has committed perjury.
Even if the previous analysis shows that the actual knowledge is difficult to determine, we still assume that the lawyer has the actual knowledge and the client intentionally perjures himself. According to the model rules, the obligations of lawyers are not clear. The effective provision of pattern rules is Rule 3.3 (a) (2), (a) (4) and (b). Style rule 3.3 prohibits lawyers from "disclosing important facts to the court when it is necessary to avoid assisting in crimes or avoiding cheating by clients". Moreover, "lawyers are not familiar with providing evidence that lawyers know is wrong." Style rule 3.3 (b) clearly assumes responsibility according to rule 3.3. (a), (2) and (4) are crucial to the confidence of customers protected by this rule. Therefore, according to the style rules, the confidence of a lawyer's client will not protect a perjury client, which is a fact.
As mentioned above, the stylistic rules define familiarity, knowledge or knowledge as practical knowledge. Although it seems from article 3.3 of the Model Rules that lawyers must disclose their intention of perjury against their clients, they are obliged to comment on the confusing rules. In the section "Under the perjury of a criminal", the commentary lists several possible ways to solve the problem of perjury of customers.
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