What should a lawyer do if they are confident their client is committing perjury? Let's say a client confesses one thing to their lawyer, but at trial makes a radically different claim when asked while under oath. The difference is substantial and likely to affect the result of the trial and the lawyer reasonable believes the defendant has committed perjury. He can't come out and accuse his client of lying based off of confidential information covered by attorney client privilege. However, he also can't support perjury, putting him in an awkward position. Does the lawyer just move on and say nothing? Can they continue their planned defense as it was because the perjury doesn't change the argument, even if it could affect the odds of the client being found guilty? Then again what if the perjury does change the argument the defense was planning to make and he has to either alter his plan for defense or likely reveal the perjury? If the lawyer adjusts his defense in deference to the lie is he not supporting perjury? Does the lawyer simply say he can't continue to defend his client and ask for a mistrial without saying why?
If somehow the lawyer knows that evidence provided by their client to the court is false, the lawyer has an obligation to direct the client to cease the perjury and to persuade the client to disclose to the court that the evidence was false. If the client does not stop, the lawyer must withdraw. There are tactful ways to express the reason for withdrawal to the court without prejudicing the client. Ethics opinions and guidance are available online from various bar associations explaining how to handle this situation, as well as academic scholarship on the topic: https://www.alabar.org/office-of-general-counsel/formal-opinions/2009-01/ https://www.lawsociety.ab.ca/resource-centre/key-resources/client-relationship-management/untying-the-knot/ https://firearmslaw.ca/2013/10/25/right-to-know-the-ethical-dilemma-of-a-lying-client/ https://www.ncbar.gov/for-lawyers/ethics/ethics-articles/dealing-with-client-perjury/ https://scholarcommons.sc.edu/sclr/vol42/iss4/10/ Every bar association should be able to provide advice to a lawyer faced with this situation that is tailored to the specific circumstances and the local rules.
I'm no expert, but I had assumed this clause was present in case of the following situation. Joe is arrested for a robbery of a London bank. Joe says nothing under questioning. At trial, Joe's defense is that at the time of the robbery, he was in Sheffield drinking beer with his brother. On the basis of common sense, a jury could think: "Surely if Joe were really innocent, he would have told the police of his alibi at the time he was questioned, and saved himself a lot of trouble. Since he didn't do that, maybe a more likely explanation is that he wasn't actually in Sheffield, but that sometime between arrest and trial, he came up with the idea of faking an alibi in Sheffield, and convinced people to testify falsely to that effect. Yes, that does seem more plausible. So we are not going to give much credence to Joe's supposed alibi." So it really would be the case that not mentioning the alibi during questioning would harm Joe's defense at trial. The warning, then, is intended to keep Joe from doing this inadvertently. If Joe's alibi is genuine, but out of a misguided desire to exercise his right to remain silent, he doesn't mention it during questioning, he may accidentally increase his chances of being wrongly convicted. Everybody has an interest in avoiding this.
(US Answer) Under the Model Rules of Professional Conduct, "A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary... to prevent reasonably certain death or substantial bodily harm..." Most states have incorporated the MRPC into their own state legal ethics codes. Therefore, as to whether a lawyer may tell the police, it comes down to whether death is reasonably certain, and whether the lawyer reasonably believes disclosure is necessary to prevent the death. In the case of a person buried alive, death is reasonably certain, and whether the disclosure is reasonable will be based on what the lawyer knows and doesn't know - was it a month ago? ten minutes ago? etc. If the lawyer believes it is too late, he is obligated to stay quiet. If he believes there is a chance of saving the life, and that belief is later judged reasonable if he is investigated, there will be no penalty for him if he discloses. There is no duty for a lawyer to report a crime committed by a non-lawyer/non-judge, so non-disclosure should have no negative ramifications legally. Disclosure found to be unreasonable could be punished by private censure, public censure, suspension of license, or even disbarment, depending on the view of the bar association's ethics investigators.
The most innocent of your scenarios is "against the rules", so less innocent acts fair worse. The idea behind researching legal theory and precedent (presumably not presidents) is that surely it is good for a juror to know what the law is. But that thinking is wrong. The judge will instruct you as to what the law is, and will also instruct you that "the law" is limited to what he says it is. I will draw on the instructions for an antitrust case, Best Buy v. Toshiba, HannStar. The core instruction is: It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. The preliminary instructions (the pattern instructions for California civil trials) say the same basic thing: At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you, even if you do not agree with the law. The judge instructs the jury that: When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. Your research might find alternative statements of the law out there, which seem entirely plausible. That doesn't matter: you have to set aside whatever ideas (about the law) that you've gotten from anybody besides the judge. In fact, if the judge makes a (serious) mistake and rules against a party in a manner that is contrary to established law, and you know this (it doesn't matter how), you are supposed to apply the law (including rulings during trial as to admissibility) as given to you by the judge. As for a case of a juror knowing that the judge was mistaken (specifically, knowing based on his pre-existing knowledge of statutes and case law – not based on forbidden research during a trial), we can get the "should" from the absolute instruction to follow the judges instructions. Additionally, if you read transcripts of voir dire (not a trivial task), you can observe judges probing attorneys who happen to be in the prospective pool, asking questions to determine whether that person can just do as they are told. But it would be difficult to establish a "hard rule". There never will be an instruction that says "You must follow my orders even if you know for a fact that my orders are wrong" – jury instructions never admit the possibility of judicial error.
The parties are generally entitled to present their case as they see fit, as long as they stay within the rules of evidence. If they want a straight yes or no, the court will often require the witness to provide one, which keeps lawyers happy, makes the answers clear for the jury, and limits the parties' grounds for appeal. If a yes or no answer is not as accurate as a more qualified answer, the other lawyer would typically have an opportunity to invite the witness to provide a fuller answer on redirect. If a yes or no answer is inappropriate because of assumption embedded in the question -- as in your &quot;beating his wife and kids&quot; example -- the question should quickly elicit an objection from the defense attorney, who would note that the question lacks foundation or assumes facts not in evidence. Assuming there isn't any evidence of domestic violence, the court should sustain the objection, in which case the witness would not need to answer at all.
The Plan For A Clearly Guilty Client Without Bargaining Power This question underestimates how much of a criminal defense lawyer's work involves sentencing rather than a determination of guilt or innocence. Suppose as the OP does that the prosecution can easily prove beyond a reasonable doubt that your client is guilty, you client has no plausible defenses, and the prosecutor won't budge on a plea. As a criminal defense lawyer, you may well advise your client that there is no percentage in fighting guilt on the charges, and have your client plea guilty. This prevents the prosecutor from spelling out for many hours in excruciating detail exactly why your client is guilty and the harm the resulted from the crime, which could harden the judge in the sentencing phase. It also frees up a client's often scarce resources for legal work that is likely to be more fruitful and for things like paying fees associated with alternative sentencing programs and paying restitution. It is an empirical fact that judges sentence criminal defendants who plea guilty, even in the absence of a plea bargain, less harshly on average, than criminal defendants who insist on going to trial. (When there is a plea bargain &quot;sentences following convictions at trial are five times larger than sentences received by those who plead guilty&quot;.) Often the sentencing premium for going to trial is stunningly large to the point where it has been argued that it amounts to an unconstitutional burden imposed upon the right to a jury trial. Then, you focus entirely on the sentencing phase of the case. There's More Discretion In Sentencing Than Guilt Verdicts Short of first degree murder and a handful of other crimes, there is almost always some discretion on the part of the judge regarding the sentence to be imposed, no matter how clearly guilt is established. Often a judge has the power to sentence someone guilty of a minor felony to probation or a &quot;boot camp&quot; or &quot;community corrections&quot; or even a fine without incarceration, rather than a prison term. Often a judge has a wide range of possible lengths of incarceration (especially in misdemeanor cases and for very serious felonies). Often the corrections department has considerable discretion over which facility to commit a client to and some are better than others. So paying attention to the facility assignment process also matters. Where a defendant is facing both state and federal criminal charges, it sometimes makes sense when conviction on all charges is likely, to plea guilty immediately to the federal charges so that the defendant is already in federal prison before pleading guilty to or going to trial on the state charges, so that if the defendant is sentenced to serve time for the state and federal charges concurrently because they arose from the same incident, the time is spent in the more pleasant federal prison rather than the less pleasant state prison. (This is the case because violent crimes are overwhelmingly prosecuted under state law, while a large share of federal crimes are white collar or are for immigration and non-violent drug offenses. So, your fellow inmates tend to be less vicious in federal prison.) Not infrequently, state prosecutors will even drop state charges to conserve their scarce resources, if they know that the defendant is already facing a significant term of incarceration following a conviction on federal charges. A criminal defense lawyer thus almost has something to argue at sentencing because there is almost never only one possible result of a sentencing hearing even if all of the facts are not in any dispute whatsoever. The judge's interpretation of what those facts should imply in terms of a sentence is always up for debate and argument. What Do Lawyers Do In The Sentencing Phase? As a criminal defense attorney in a case like this, your job is: to present your client in the best light possible, to locate witnesses who will testify that he has support in the community and that he is basically a good guy despite this particular lapse, to marshal testimony that extended incarceration will be a hardship to someone dependent on him, to have him sincerely apologize to the victim and try to do something immediately to make it up to the victim and to show regret and contrition, to support him in not violating terms of pre-sentencing release if any, and perhaps even to see if charges that might otherwise bring him into a recidivist sentencing regime can be sealed or vacated for any reason. You present mitigating evidence regarding IQ or mental health conditions or prior military service or poverty or provocation that explain your client's conduct even if it doesn't excuse it. You try to get the prosecutor to agree that a harsh sentence isn't necessary here, or even to support an alternative sentencing option. Prosecutors are frequently more sensitive to their win-loss record of securing convictions than to precisely how the people they convict are punished. You scrutinize the pre-sentencing report for any inaccuracies and prepare to prove that they are inaccurate. You litigate which category your client belongs in under the sentencing guidelines that apply, if any, which are often the subject of much less case law and hence for more room for interpretation. For example, in a recent case handled by another lawyer in my office (I don't do criminal work myself, but have colleagues who do), the client's sentence was reduced by more than 95% from what the prosecution requested because they had meant to charge 300 counts of a municipal ordinance violation for which each day counted as a violation, but actually charged our client with only 2 counts of the municipal ordinance violation and the judge held the prosecution at sentencing to only a sentence based upon the offense actually charged in the relevant documents. You prepare to explain to the appropriate people how maintaining community ties through visitation will reduce his odds of recidivism if he is located at a more favored correctional facility rather than a less favorable one. You prepare to explain to the appropriate people that your client's survival would be a risk based upon the gangs present at a less favored correctional facility, or that he would be more likely to join a gang and thus commit more crimes upon release at a less favored correctional facility. You get your client to be cooperative in paying any restitution he can afford to pay even before the court orders him to do so. You find decent clothes for him to wear to his sentencing so he doesn't look like a thug and teach him what not to say at sentencing that would piss of the judge. Do his hair in a way that makes him look as vulnerable and inoffensive as possible. Cover his tattoos and remove his piercings as much as possible. If your client is black, find a white or Asian-American relative or mentor or girlfriend or supporter to stand at his side and support him in court. This shouldn't matter but it almost always does. If your client doesn't speak English well, find a relative or mentor or girlfriend or supporter to testify in fluent English in support of leniency and make sure that there is an interpreter lined up for his sentencing hearing. You remind the judge of other more serious cases involving the same offense to which your client's can be compared, or of the sentences imposed on more culpable co-defendants to suggest that your client's sentence should be less severe. You downplay the harm caused and emphasize your client's future prospects. You help the judge relate to your client anyway that you can. You may need to research the judge's background and history of sentencing decisions to find out what this particular judge does or does not find persuasive in sentencing hearings. Sentencing Is As Important As The Charge Of Conviction A criminal defense attorney who presents a solid sentencing case may leave the client who receives a near minimal sentence on that charge with a lighter sentence than one who plea bargains to a lesser charge but then botches the sentencing phase resulting in the client getting near maximal sentence on the lesser charge. Consider, for example, the attorney who represented Brock Turner, a Stanford student convicted of raping an unconscious woman in public in the face of overwhelming evidence against him who none the less, was sentenced to just six months of incarceration (reduced further for good behavior in jail). Another attorney could have plea bargained down to simple assault and still left his client with a more harsh sentence. Turner's attorney was so effective in securing a lenient sentence that the sentencing judge was recalled for the first time in 87 years in California for his leniency. Conclusion So, the notion that a good criminal defense attorney's job is over when the client has no chance of establishing his innocence is just fundamentally wrong. Roughly 90% of criminal defendants will plead guilty and half of the rest will be convicted. The vast majority of these criminal defendants are guilty of something, even if not the exact offense of conviction. The criminal defense attorneys' job isn't mostly about getting acquittals for clients who are the vast majority of the time guilty of something, it is about securing a non-excessive sentence for the conduct committed. Even in the majority of cases that don't conclude with a plea bargain, most of the job is about the sentencing phase, where there is almost always more judicial discretion, and not about the guilt-innocence phase of the case.
Documents are not protected under the 5th Amendment, so a person can be compelled to produce documents that may incriminate them. The person cannot be forced to testify against themselves, however – they can invoke their right to not testify against themselves. The attorney-client privilege canon has some exceptions, for example (4) to secure legal advice about the lawyer's compliance with these Rules or (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services (bearing in mind that POTUS is required by law to turn all documents over to the national Archives, so turning the records over is &quot;compliance with the law&quot; and a think that an attorney would do for their client, though this event is quite belated). No subpoena was issued and no testimony was given, so the Fifth Amendment is irrelevant.
When it can be “reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.” Which is the standard the New York appeals court endorsed in 2014 for “defamation by implication”. So, on the face of the statements, they have to imply fraud and they have to show that the speaker intended to imply fraud. Whether they did that is up to the jury.