Client Perjury

• Author: David Layton; Michel Proulx
• Pages: 329-373

329

CHAPTER 7

CLIENT PERJURY

A. INTRODUCTION

What should a defence lawyer do on learning that a client intends to

give false testimony or has already lied on the stand? The proper re-

sponse to anticipated or completed client perjury is a hotly debated

issue in crim inal law ethics. Almost every commentator who address es

the ethical aspects of criminal law practice devotes special attention to

the thorny problem of client perjury. The topic has become a paradig-

matic scenario for examining defence counsel’s sometimes conf‌licting

duties, on the one hand of loyalty to the client and on the other to

maintain the integrity of the truth-seeking function of the criminal

justice system. The impact of the perjury issue on broader questions of

ethics has been substantial, as have been the repercussions for those

who take challenging positions. In the United States, a provocative

conference address on the topic by Professor Monroe Freedman in 1966

led several appellate court judges, including soon-to-be-Chief-Justice-of-

the-Supreme-Court Warren Burger, to seek Freedman’s disbarment and

academic dismissal.1 Freedman’s controversial writings on client per-

jury constituted an import ant impetus for the American Bar Association

1 The judges’ attempt was fort unately unsuccessfu l: see Monroe Freedman, “Get-

ting Honest about Cl ient Perjury” (2008) 21 Geo J Leg Ethics 133 at 133–34 and

136–39.

ETHICS AND CRIMINAL LAW330

to launch a reconsideration of its model code and eventually, in 1983, to

adopt the replacement model rules.2

The client-perjury problem can often be seen as a particular in-

stance of defence counsel’s diff‌iculty in representing the client who is

irresistibly known to be guilty.3 This is because the perjury issue will

frequently arise where the client admits guilt but nonetheless insists

on testifyi ng falsely at trial in the hope of securing an acquittal. Yet the

spectre of client perjury can loom even where counsel is in no position

to conclude that the client is guilty. The client may contend that false

testimony is crucial to bolster an otherwise valid defence.4 The issue of

client perjury is also discrete because it implicates the accused’s consti-

tutional right to testify on his own behalf. Ultimately, the unique and

labyrinthine range of possible responses to anticipated or completed

client perjury warrants an in-depth examination of the topic.

B. COMPETING PRINCIPLES

The principles bearing on the resolution of any client-perjury problem

are by now largely familiar. Defence counsel owes the client a duty of

loyalty, which includes obligations to keep secret all conf‌idential infor-

mation and to act as a competent and resolute advocate for the client’s

cause. A lawyer faced with anticipated or completed client perjury

quickly recognizes the pull of the duty of loyalty. A response that ex-

plicitly or implicitly reveals the planned or already executed falsehood

by def‌inition serves to expose client secrets and, in many instances, to

undermine the client’s defence. Loyalty militates against rushing into

action that will harm the client.

There are also closely associated constitutional principles that pre-

vent counsel from improperly interfering with the client’s defence. If

defence counsel acts unreasonably to cause unfairness at the trial or

compromise the reliability of the verdict, the right to the effective as-

sistance of counsel is in fringed.5 The unjustif‌ied release of information

2 See John M Burkoff, Criminal De fense Ethics 2d: Law and Liability, 2008 –9 ed (St

Paul, MN: Thomson Reuters/ West, 2008) at § 5:16 [199–200].

3 See Chapter 1.

4 See, for example, Nixv Whiteside, 475 US 157 (1986) [Nix], in which the ac cused

told counsel th at he believed the victim had b een carrying a g un and insisted

that he had ki lled in self-defence. The accused w anted to help along this de-

fence by falsely t estifying th at he had seen a f‌lash of metal in the v ictim’s hand.

5 See Chapter 3, Section K(1). For instance, inadeq uate advice regarding the r ight

to testif y may lead to this result: Rv R oss, 2012 NSCA 56 at par as 40–57; Rv

Client Perjury331

received from the client by counsel may also violate the client’s consti-

tutional right to the protection of solicitor-client privilege, and perhaps

too the principle against self-incr imination.6 Furthermore, coun sel must

be cognizant of the client’s constitutional rights to control the conduct

of the defence,7 to call evidence in defending against the charge,8 and

in particular to testify in his own defence.9 In sum, interventions that

keep the client from the stand or otherwise impede his free choice

to testify risk undermining fundamental principles of justice to the

client’s severe detriment and attracting censure from the courts.

The power of these constitutional principles i s undeniable, shaping

every client-lawyer relationship and counsel’s attendant ethical obliga-

tions. Yet a lawyer’s allegiance to the client’s cause i s not without limits,

and the same can be sa id for an accused’s constitutional right s. A central

objective of the adversarial cr iminal justice system is the se arch for truth.

Granted, the principle against self-incrimination serves to temper the

system’s truth-f‌inding function. But this principle operates to require

only that the Crown prove its case without any compulsion of the ac-

cused and does not encompass the r ight to fabricate evidence in a crim-

inal proceeding. It is also questionable whether the right of an accused

to testify includes a licence to knowingly present false testimony.10

This is not to say that a court would refuse to allow an accused

to testify on the basis that her proposed testimony was false. It is the

lawyer’s knowing involvement in ass isting the client to commit perjury

that is unacceptable. Doing so almost certainly makes counsel a party

to the criminal offences of perjury and attempting to obst ruct justice,11

and represents unacceptable complicity in an attempt to subvert the

truth-f‌inding process. The prohibition against counsel knowingly mis-

leading the court represents a justif‌iable limit on the duty of loyalty to

the client12 and concomitantly imposes restrictions on those constitu-

tional rights that relate to the client’s legal representation, such as the

Qiu, 2010 ONCA 736at para 9 [Qiu]; Rv Moore, 20 02 SKCA 30 at para s 48–55

(Sask CA) [Moore].

6 See Chapter 4, Sect ion F.

7 See Rv Swain (1991), 63 CCC (3d) 481 at 505–7 [paras 33–36] (SCC) [Swain].

8 See Rv Se aboyer (1991), 66 CCC (3d) 321 at 389 [para 34] (SCC); Rv Murphy,

2012 ONCA 573 at paras 16–25; Rv Bishop, 2013 NUCA 3 at para 51.

9 See Rv Br igham (1992), 79 CCC (3d) 365 at 380–83 and 390 –91 (Que CA)

[Brigham]; Rv Smith (1997), 120 CCC (3d) 500 at paras 14–15 and 26 (Ont CA);

Rv Dunbar, 2003 BCCA 667 at para 126, leave to app eal to SCC refused, [2004]

SCCA No 30; Qiu, above note 5 at par a 15.

10See Se ction F(4)(b), below in th is chapter.

11Criminal Code, RSC 1985, c C-46, s s 131 and 139 respect ively.

12See Chapter 1, Sect ion E.