Client Perjury
| Author | David Layton; Michel Proulx |
| Pages | 329-373 |
329
CHA PTER 7
CLIENT PERJURY
A. INTRODUCTION
What should a defence lawyer do on learning that a client intends to
give false testi mony 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 l aw 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 t he integrity of the truth- seeking function of the crim inal
justice system. The impact of the perjur y issue on broader questions of
ethics has been substantial, as have been t he 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 CR IMINAL 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 representi ng the client who is
irresistibly known to be guilty.3 This is because the perjury issue wi ll
frequently arise where t he client admits guilt but nonetheless insi sts
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 testi fy on his own behal f. Ultimately, the unique and
labyrinth ine range of possible responses to ant icipated or completed
client perjury war rants an in-depth ex amination of the topic.
B. COMPETING PRINCIPLES
The principles bearing on the resolution of any client-perjury problem
are by now largely familia r. 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 w ith anticipated or completed client perjury
quickly recognizes the pull of the duty of loyalty. A response that ex-
plicitly or implicitly reveals the plan ned or already executed falsehood
by definition serves to ex pose client secrets and, in ma ny 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 th at pre-
vent counsel from improperly interfering with the client’s defence. If
defence counsel acts unreasonably to cause unfairnes s 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, Ni x v 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
Client Perjury 331
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 ch arge,8 and
in particula r to testify in his own defence.9 In sum, interventions that
keep the client from the stand or otherw ise impede his free choice
to testify risk undermining fund amental principles of justice to the
client’s severe detriment and attracting cen sure from the courts.
The power of these constitutional principles i s undeniable, shaping
every client-lawyer relationship and cou nsel’s attendant ethical obl iga-
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 thi s principle operates to require
only that the Crown prove its cas e 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 a llow an accused
to testify on the ba sis 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 crimin al offences of perjury and attempting to obst ruct justice,11
and represents unacceptable complicity in an attempt to subvert t he
truth-finding process. The prohibition against counsel knowingly mis -
leading the court represent s 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
(Sask CA) [Moore].
6 See Chapter 4, Sect ion F.
7 See R v Swain (1991), 63 CCC (3d) 481 at 505–7 [paras 33–36] (SCC) [Swain].
8 See R v Se aboyer (1991), 66 CCC (3d) 321 at 389 [para 34] (SCC); R v Murphy,
9 See R v Br igham (1992), 79 CCC (3d) 365 at 380–83 and 390 –91 (Que CA)
[Brigham]; R v Smith (1997), 120 CCC (3d) 500 at paras 14–15 and 26 (Ont CA);
R v 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.
10 See Se ction F(4)(b), below in th is chapter.
11 Criminal Code, RSC 1985, c C-46, s s 131 and 139 respect ively.
12 See Chapter 1, Sect ion E.
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