Prospective Perjury by a Criminal Defendant: It's All about the Lawyer

Ray McKoski

The John Marshall Law School

February 24, 2013

Arizona State Law Journal, Vol. 44, 2012

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.

Number of Pages in PDF File: 71

Keywords: Perjury, Model Rules of Professional Conduct, Rule 3.3, Professional Responsibility, Lawyers' Ethics

JEL Classification: K14, K41

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Date posted: February 24, 2013  

Suggested Citation

McKoski, Ray, Prospective Perjury by a Criminal Defendant: It's All about the Lawyer (February 24, 2013). Arizona State Law Journal, Vol. 44, 2012. Available at SSRN: https://ssrn.com/abstract=2223601

Contact Information

Ray McKoski (Contact Author)
The John Marshall Law School ( email )
315 South Plymouth Court
Chicago, IL 60604
United States
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