As the events in Ferguson unfolded, students from my MIT’s Splash class Know Your Rights continued to email me questions regarding the behavior of the DA running the Grand Jury, prompting this reply.
Those of you following Ferguson may have noted the news last week that the DA admitted that he presented witnesses to the Grand Jury whom he knew were lying. This was particularly interesting to lawyers and people who follow legal news because Missouri, like most other states, has a rule against an attorney presenting evidence in court that the attorney knows to be false.
On that note, I present the following questions for you to chew on. As usual, if you think that any of my questions have easy or obvious answers, you have missed an important point and should either think about them some more, or find somebody who disagrees with you to have an interesting conversation with.
Many of these questions have answers that can be looked up in law books or rule books, but that doesn’t mean that they are the “right” answer or the “best answer.” They are simply current law, and since we live in a democracy, we can change the law! Even if we can’t change a law, we can also grumble about it and philosophize about it and argue that it should be changed!
1) When we say that an attorney can’t present evidence that the attorney knows to be false, what do we mean by “knows?”
Should we define that really strictly to only include evidence that the attorney could prove false beyond a reasonable doubt? What about evidence that the attorney thinks is probably false, but can’t prove is false? What about evidence that the attorney can suggest is probably false, but not beyond a reasonable doubt?
2) Short of a Bob McCullough-type “I knew they were lying” confession, how are we ever going to prove that a lawyer knew the witness was lying?
The case I studied in law school involved a lawyer who was actually with a witness in place A, when the witness testified to have seen the defendant in place B (not committing the crime, which happened in place C). That seems to be about as unusual as the McCullough confession. Should we be spending a lot of time on rules that only apply in weird and unusual circumstances?
3) What happens when a client tell the lawyer a particular version of the facts, and then changes the story later on in the representation?
The lawyer has to know that at least one version is false. The lawyer may not know which one is true or false. Can the lawyer call the client as a witness? What if the client changed their story in response to the lawyer telling them that the first version wouldn’t win the case? If that’s enough for the lawyer to bar the client from testifying, aren’t we encouraging a “don’t ask/don’t tell” sort of gamesmanship between attorney and client?
4) Who decides whether the lawyer knew the evidence was false, and how sure do they have to be, before they can punish the lawyer?
5) Our adversarial system depends on having attorneys muster the best evidence they can to zealously fight for a position or result, and other attorneys zealously attacking that evidence and mustering counter-evidence to zealously fight for the other result.
Is this counterbalancing undermined when an advocate withholds evidence for fear of being disciplined if it turns out to be wrong? Can’t the adversarial system handle false evidence by relying on the other lawyer to prove it false?
6) Normally, attorneys are supposed to be the best possible mouthpiece for the client, not the one who decides what evidence to believe and what weight to give it. Judges and juries do that, after hearing from both sides.
What does it do to the attorney-client relationship when we put the attorney in the position of making this kind of decision before offering evidence to the tribunal? How would you feel if your lawyer refused to argue your evidence because he or she didn’t believe it? What if your evidence was true, and the lawyer was wrong?
7) In a criminal case, the defendant has an absolute right to testify in his or her own defense. This is one of the most absolutely true things we have in our legal system.
What happens if the defendant in a criminal case wants to testify in a way that the lawyer knows to be false? Can the lawyer stop the client from testifying? If so, how does that interplay with the rule that the defendant has an absolute right to testify? If not, how does that interplay with the rule that the lawyer can’t offer false evidence? If the client is allowed to give the false testimony, can the lawyer participate by asking the client questions on the witness stand? Can the lawyer argue to the jury that they should believe the client? If the client can testify, but the lawyer can’t ask the jury to believe it, doesn’t that put the whole defense in a weird, awkward position with the jury?
Comments are open for discussion below.
(Originally written on 12/22/2014.)