Criminal Defense - Everyday Ethical Conundrum

Recently I guest-lectured for a local law school's professional responsibility class. The topic was the prohibition on the knowing presentation of false testimony. For this subject, the students read Nic v. Whiteside, the U.S. Supreme Court decision denying an ineffective assistance of counsel claim, due to counsel's informing the court that the defendant intended to testify falsely. The defendant had no right to an unfair trial, one in which he provides false testimony.

But the more significant question - in my mind at least -- was whether the attorney actually knew that defedant was intending to testify falsely. If not, then the attorney had no business advising the court of the client's intentions. A client is not entitled to lie. but he is entitled not to have his attorney tell the court he will do so, when the attorney has no such knowledge.

So, did the attorney know? Well, maybe. The client did change his story to the attorney. But this may happen innocently. In the real world, is this enough for an attorney to claim that the client is fabricating? Is the answer simply not to ask a client pertinent questions? Should a client only speak in hypotheticals?

The upshot of this scenario is that an attorney is placed in an unusual position. What is most troubling is that, on occasion, an attorney is essentially being asked to be an arbiter of a client's veracity. The black-and-white scenarios are easy. Of course, no attorney should knowingly permit false testimony before a court. Likewise, every defendant is entitled to testify. But what about the gray situations, where an attorney suspects that a client may be lying. What obligation does the attorney have to the client, and what obligation to the court?

What also of a defense attorney who argues an alternative scenario but knows the scenario to be false? The ethics rules do not speak to this precise subject. Attorneys may argue from the evidence presented at trial. What if the inference sought to be drawn is an incorrect one?

What if an alibi witness is not credible? Is it the client's or attorney's decision whether to pursue an alibi defense relying upon that witness?

There are no easy answers to these questions, which can leave criminal defense attorneys betwixt and between theuir obligations to provide the best defense to the client, while remaining firmly within the bounds of law and legal ethics.