Typically, one doesn’t need a videotape or countervailing testimony from an amalgam of the Pope, Abraham Lincoln and Tom Brokaw to know that a witness has lied. Sometimes a lie is simply unmistakable—”It’s as plain,” a trial lawyer might tell a jury, “as the nose on my face.” Indeed, a false statement may be clear whether it occurs in the real world, or on the witness stand in the courtroom’s pristine atmosphere. Often, one simply doesn’t need an infallible lie detector, even if such a thing existed, to reach a conclusion about witness falsity.
The Rules
The consequences in the criminal courtroom regarding a proponent’s offer of what is—or turns out to be—false testimony are somewhat different, however, depending on which side proffers the testimony. No lawyer can “knowingly” make or fail to correct “a false statement of material fact” and, if the lawyer learns that material evidence is false, he “shall take remedial measures, including, if necessary, disclosure to the tribunal.” But: “A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.” NY Rule of Professional Conduct 3.3(a), ABA Model Rule of Professional Conduct 3.3(a). Yes, a defendant has the absolute right to testify even if his attorney doesn’t believe his account, as long as the attorney doesn’t actually “know” the testimony would be false. Meaning, an attorney must call his insistent client (but not a witness) to the stand notwithstanding his personal beliefs as to that testimony.
