Friday, February 15, 2008
Pepperdine University School of Law Vice Dean and Professor of Law L. Timothy Perrin's contribution to the Evidence and Ethics Symposium is his article, The Perplexing Problem of Client Perjury. In the introduction, Perrin begins by noting that the most difficult ethical questions for lawyers arise "when the duty to the court collides with the duty to the client." Perrin then sets out to addess "a particularly perplexing instance of such a conflict: What are the responsibilities of a criminal defense lawyer when his or her client seeks to take the witness stand and testify falsely? Should truth or partisanship prevail?" He then lays out a very persuasive argument that it is the truth that should prevail.
In Part I, Perrin addresses how the Federal Rules of Evidence "resolve the conflicts between the system's search for the truth and the heightened constitutional protections accorded to criminal defendants." He notes that, pursuant to Federal Rule of Evidence 102, the Rules attempt to accomplish two fundamental objectives: (1) ascertaining truth, and (2) dispensing justice/protecting the rights of the accused. With regard to the former objective, he indicates that the Rules were "drafted to account for the perceived strengths and weaknesses of the various partcipants in the adversary system": judges are given the power to make evidentiary decisions, jurors are given great deference with regard to their evaluations of witnesses and facts, and lawyers are given significant autonomy to make strategic decisions but are also viewed with suspicion. The Rules thus "seek to create the right conditions for finding the truth by empowering judges, protecting jurors, and restraining lawyers."
With regard to the latter objective, he notes, inter alia, that the Rules include several provisions that seek to conform to constitutional rights, and allow for criminal defendant's to present propensity evidence under the Rule 404(a) exceptions while such evidence is generally prohibited in civil trials. Perrin then indicates that the these two hallmarks of the Rules of Evidence do collide on occasion, with the former winning out both in the context of prosectors using confessions obtained in violation of the Miranda warning for impeachment purposes and the forfeiture by wrongdoing doctrine under Federal Rule of Evidence 804(b)(6).
In Part II, Perrin asks whether lawyers are merely "amoral technicians" charged with zealously representing their clients within the bounds of the law, as advocated by Professor Monroe Freedman. Or does teaching law students to have such a "Contextual View" of lawyering have "the undesirable effect of 'teaching students that ethical-social issues are not important to the way one ought to think about legal practice," as argued by the Carnegie Foundation and Professor William Simon?
In Part III, Perrin begins by noting that Model Rule 3.3 indicates that, inter alia, a lawyer shall not offer evidence the lawyer knows is false and may refuse to offer evidence (other than the testimony of a defendant in a criminal case) that the lawyer reasonably believes is false. Perrin then proceeds to set forth several different tacts defense lawyers have taken when their clients want to testify falsely (and how courts have responded to them): convincing the client to tell the truth, refusing to allow the client to testify, withdrawing to avoid participation in the fraud, and having the client testify through narrative testimony.
Perrin concludes with the words of Abraham Lincoln, who wrote, "Let no young man, choosing the law for a calling, for a moment yield to this popular belief. Resolve to be honest at all events; and if, in your own judgment, you can not be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave."
Perrin thus contends that, "Lincoln's advice suggests that the answer to the profession's truthfulness deficit is not to be found in more rules of ethics or in better enforcement of the rules of ethics, but that the answer will be found with individual lawyers who have an unflagging commitment to the truth."