Truth, Justice, and the American Way: The Case against the Client Perjury Rules

Document Type

Article

Publication Title

Vanderbilt Law Review

Abstract

In 1637, England's dreaded Court of Star Chamber pronounced the sentence: John Bastwick, a Puritan activist,' was to be pilloried twice with one ear cut off each time, imprisoned in perpetuity without "books, pen, ink, or paper," stripped of his university degrees, and fined £5,000. Shortly before, he had been escorted up a twisting staircase in Westminster Palace and into a dark, cavernous room with stars painted on the ceiling to be tried on charges of criminal libel for having penned a political tract critical of the government. According to Star Chamber procedure, since Bastwick's counsel refused to vouch for the truthfulness of his client's version of the facts, Bastwick was precluded from placing his version of the truth before the tribunal and, instead, was deemed to have confessed. A century and a half later, the drafters of our Bill of Rights-haunted by the inquisitorial excesses of the Star Chamber and of Continental criminal proceedings-sought to ensure a balanced, adversarial encounter between criminal defendants and the state by providing defendants with the procedural protections of the Fifth and Sixth Amendments. Since the early 1900s, however, the legal profession has promulgated various codes of attorney conduct that, in addition to attempting to clarify the professional obligations of lawyers and seeking to minimize public pressure for the external regulation of the profession, have threatened these protections. Drafted by attorneys who are frequently insensitive to the dynamics of the adversarial process or hostile to procedural protections accorded criminal defendants, the rules of legal ethics contain provisions that fundamentally conflict with and undermine the adversarial pursuit of justice in our criminal proceedings. One of the most compelling and egregious examples is the set of rules governing the duty of criminal defense counsel who believes that the accused will testify or has testified untruthfully and who, at, the risk of criminal and professional sanctions, must not fail to withdraw from representation, denounce the client to the court, or both. These rules-the client perjury rules--closely resemble the odious Star Chamber requirement that defense attorneys vouch for the credibility of defendants who wish to present their account of the facts. The present rules of ethics thus create a hidden inquisition at the center of our adversarial criminal trials: a self-contained, summary inquiry, concealed from the view of the jury and the public, in which defense counsel must assume the role of inquisitor in assessing the veracity of the accused and the role of prosecutor in contending to the court that the client's account of the facts is untruthful. In addition to undermining the basic structure of the adversarial system, the client perjury rules violate many of the individual rights accorded defendants under the Fourth, Fifth, and Sixth Amendments. Moreover, the rules are applied in a discriminatory manner based on race, class, and culture and impede the very search for truth they are touted to protect. Part I of this Article briefly sketches the ancient and modern history of the rules governing client perjury, their present scope, and the criticism they have generated. Part II presents the case against these rules, revealing the manner in which they violate principles of equal protection, subvert the constitutional guarantees designed to ensure a fair trial, upset the delicate balance of responsibilities within the constitutionally mandated structure of our criminal proceedings, and impair the discovery of truth in those proceedings. Part III critiques the potential responses of defense counsel to the seemingly perjurious criminal defendant, ultimately prescribing a solution that promotes both truth and justice.

First Page

339

Last Page

426

Publication Date

3-1994

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