CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, March 4, 2013

McKoski on Prospective Perjury by a Criminal Defendant

Ray McKoski has posted Prospective Perjury by a Criminal Defendant: It's All about the Lawyer (Arizona State Law Journal, Vol. 44, 2012) on SSRN. Here is the abstract:

This article offers a new approach to the ethical dilemma facing an attorney representing a criminal defendant who insists on testifying falsely. The article begins by reviewing the development of the professional obligations of candor to the court and loyalty to the client from the first English statute regulating lawyers to the current ABA Model Rules of Professional Conduct. This review demonstrates that for 700 years the duty of candor has trumped the duty of loyalty in cases of prospective client perjury. Second, the article debunks the myth that a rule defining counsel’s response to a client’s planned perjury is necessary to prevent false evidence from infecting the trial. Instead, it is demonstrated that the true purpose of a rule requiring remedial measures by an attorney facing client perjury is to protect the lawyer, not the legal system. Third, the flawed traditional approaches to the perjury dilemma are examined. Lastly, a new proposed “supplemental counsel” approach to the prospective perjury problem is shown to accommodate the interests of the legal system, the legal profession, and the criminal defendant far better than any current approach.

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