Litigation & Advocacy · 10-16% of the exam
13.2.4Criminal defendant's perjury (Rule 3.3 — constitutional overlay)
On this page
- Quick review — the perjury protocol
Why
A criminal defendant's right to testify collides here with the court's need for truthful evidence, and the temptation is to reach for a compromise that lets the lawyer stay silent while the client lies. This material exists to settle which way the Model Rules resolve that collision, rather than leaving it to instinct.
Plain English
When a criminal defendant insists on testifying falsely, run the same protocol:
- dissuade,
- seek withdrawal, then
- disclose to the tribunal.
For Model Rule purposes the narrative approach is not the answer, and disclosure is not ineffective assistance — there is no constitutional right to commit perjury. Refusal is not a civil-only step: if persuasion fails, any lawyer must refuse to offer evidence the lawyer knows is false, and where only part of a witness's testimony will be false the lawyer may call the witness without eliciting that part (Comments [6] and [7]). The civil difference is that no Sixth Amendment right to testify is at stake, so refusal ends the matter without tribunal disclosure.
Rule
Quick review — the perjury protocol
Quick review — the perjury protocol (taught fully in Chapter 7)
Four points, three on the criminal defendant and one on refusal, which is not civil-only.
When a criminal defendant insists on false testimony, apply the same three-step protocol from Rule 3.3(a)(3): dissuade, seek withdrawal, disclose to the tribunal.
Do NOT pick the narrative approach as the ABA Model Rule answer; Step 3 disclosure is required for Model Rule purposes.
No constitutional right to commit perjury (Nix v. Whiteside); Step 3 disclosure isn't ineffective assistance of counsel.
Refusal is not civil-only: if persuasion fails, the lawyer must refuse to offer evidence the lawyer knows is false, and if only part of a witness's testimony will be false the lawyer may call the witness but must not elicit the false portion (Comment [6]) — duties Comment [7] applies to all lawyers, including defense counsel in criminal cases. The civil difference is that no Sixth Amendment right to testify is at stake, so the refusal ends the matter and tribunal disclosure is not required.
Questions · 1
Q 01ch13-e08
Question 1 of 1 · Rule 3.3(a)(3)
Attorney represented Defendant on a charge of aggravated assault outside a tavern. Defendant told Attorney that he intended to testify that he had never been inside the tavern that evening. Attorney has heard a recorded jail call in which Defendant describes standing at the bar minutes before the fight, so Attorney knows the planned testimony is false. Attorney urged Defendant at length to abandon that account and explained what perjury would mean for him; Defendant refused. Attorney then moved to withdraw without revealing the reason, and the trial judge denied the motion. Defendant still insists on taking the stand and giving the false account. Which of the following must Attorney do next?
Keys 1 to 4 choose.