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  • InsideTrack
  • April 20, 2011

    Ethical dilemmas: Lawyer knows of planned false testimony

    April 20, 2011 – Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears monthly in InsideTrack. The answers, offered by State Bar’s ethics counsel Timothy Pierce, provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.

    Question

    I represented Smith, who is charged with DUI third offense. After his arrest, and despite blood alcohol evidence to the contrary, Smith told the police that he had only two beers over the course of the evening. Smith has told me that he had more drinks that night, but that he was going to trial, sticking to his story and taking the stand because his friend, Jones, who was in the car when Smith was pulled over, would corroborate his story. Jones admitted to me that he wasn’t with Smith that night, but he “had to do what he had to do.” I will try to withdraw, but what if the judge doesn’t let me off the case?

    Answer

    With respect to the client, in the McDowell case, the Wisconsin Supreme Court held that when a lawyer knows that a criminal defendant client insists on testifying falsely, the lawyer must inform the court and prosecutor that the client will testify in narrative form, then allow the client to do so. The lawyer must be careful not to argue the false evidence in closing argument. With respect to the alibi witness, SCR 20:3.3(a)(3) prohibits a lawyer from presenting evidence that the lawyer knows to be false.

    References: SCR 20:3.3; State v. McDowell, 2004 WI 70, 272 Wis.2d 488, 681 N.W.2d 500.

    Previous questions

    For more information, visit the Ethics webpage on WisBar.


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