Author Scott Turow on Alaska Bar Convention panel: "What to do when you believe your client wants to lie on the stand"

Scott Turow, author of  more than a dozen books, some of which have been turned into movies, responded to questions about how he would handle a client he believed wanted to lie on the stand, at the 2018 Alaska Bar Convention last week.

L-R: Federal Public Defender Richard Curtner, Cynthia Strout,
Scott Turow, Jeff Feldman, Alaska Bar Counsel Nelson Page.

Turow, who defends white collar criminals and has also worked as a prosecutor, sat on a panel including Federal Public Defender Richard Curtner, longtime attorney Cynthia Strout, and Alaska Bar Counsel Nelson Page, who provides ethics guidance to lawyers. 

Jeff Feldman, a well-known and respected defense attorney, and affiliate professor of law at the University of Washington School of Law, moderated the ethics discussion.

Feldman pointed out that the governing case law goes back to 1986. Nix v. Whiteside, 475 U.S. 157 (1986), provides that a defendant's right to counsel does not include the right to counsel who will cooperate with the defendant in presenting perjury.

The Alaska Rules of Professional Conduct (Rule 3.3) require that an attorney not knowingly make a false statement to the court of material fact. The commentary to the rule, though, states that a lawyer's ethical duty may be qualified by a criminal defendant's due process and right to counsel.

Feldman gave the panelists a hypothetical client accused of murder, who, when arrested, had gun residue on his hands and told the police "The dirt bag deserved to die."

"In your first interview with your client will you ask, 'Did you do it?'" Feldman asked.

"My usual practice is not to be quite that direct," Turow responded.

The attorney client relationship is very important, issues of trust have to develop, Strout said, agreeing that she would not ask the question.

Turow added that he would lay out his obligation regarding perjury in the first meeting with his client. "I know you wouldn't do this," he'd preface the conversation. Then he'd let his client know that if he told him something at the start, then changed to something different -- that Turow knew to be a lie -- he wouldn't be able to present the lie to the court if it materially impacted the case.

Feldman pitched a number of scenarios to the panelists to tease out the important issues of both knowing a person is lying and that the lie is material to the case.

It's not uncommon for traumatic events to change memories, Strout said, when faced with a hypothetical client who remembered seeing a gun after hearing that would make his defense  stronger. It's not the role of the criminal defense attorney to second guess this, she added.

However, when a defense witness changes their story, the standard is different, according to Bar Counsel Nelson Page. (A defense witness who changes their story to benefit the defendant could end up hurting the defendant when cross examined on the stand.) The constitutional obligation is to provide a defense to the client," he said.

If Turow doesn't have a reason to believe 'beyond a reasonable doubt' that his client is lying, then the client has a right to tell the story, he said. Strout's level is whether she 'actually knows' that her client is lying.

Both standards fit within the ethical guidelines of 'knowingly,' according to Page.

Though the bar presentation involved only a discussion of the obligation of criminal defense attorneys, it was agreed that prosecutors and civil litigation attorneys also deal with this issue.

The Alaska Rules of Professional Conduct, however, single out a criminal defendant's right to counsel and to testify  as important qualifiers when it comes to an attorney's duty.