Attorney Loyalty and Client Perjury - A Postscript to Nix v. Whiteside

Abstract

Most experienced prosecutors, judges, and defense attorneys probably would agree that perjury in the criminal justice system occurs often. Although the frequency of perjury has never been demonstrated empirically, it is not surprising that with so much at stake, prosecution and defense witnesses would be tempted to fabricate testimony to meet the exigencies of the case. Detecting and dealing with perjurious testimony, however, is another matter. Implicated are complex legal and ethical problems for both prosecutors and defense attorneys. Moreover, the judiciary's response to these problems has been largely formalistic and deficient in enunciating sufficiently clear standards to guide future behavior.