ABA Standards for Criminal Justice: Defense Function (Approved Draft, 1971) § 7.7 speaks to a situation in which the falsity of the defendant's testimony is known and not merely suspected. Likewise, cases in which this problem arose involved situations in which the attorney knew, based on independent investigation of the case or on prior discussions with the client, that the defendant's testimony was false. It is in that as in that context that the attorney could, consistent with the defendant's right, limit his or her representation in accordance with § 7.7. Where the veracity or falsity of the defendant's testimony is conjectural, the ethical dilemma does not arise.
At defendant's pre-trial hearing, his attorney admitted to the presiding judge that he expected defendant might wish to testify but that he was unwilling to allow such because of inconsistent statements he had made earlier.
Subsequently, the same judge presided over defendant's bench trial and found him guilty. Defendant contended that he was denied effective assistance of counsel. The court reversed.
Was defendant denied effective assistance of counsel?
The court held that if a client insisted on giving false testimony and withdrawal was not feasible, the attorney was merely required to restrict his examination to identifying the witness as the defendant and permitting him to make his statement without later using such statements in his closing argument. The court found that the attorney went beyond the permissible grounds in directly informing the judge that his client wished to give perjured testimony. The court also held that the above rule only applied in situations where the attorney knew and not merely suspected the falsity of defendant's statement, thus inconsistent statements did not rise to the level of knowing. The court held that the trial judge jeopardized his neutral position by not recusing himself from the case.