CI-1164

January 23, 1987

SYLLABUS

A criminal defense lawyer may present truthful alibi witness testimony, even though the lawyer knows the client has committed the crime charged.

References: MCPR DR 7-101, 7-102(A)(4); CI-394, CI-634.

TEXT

A client charged with armed robbery has confidentially admitted the crime to his attorney. The client proposes to call some friends as witnesses at the trial who will give truthful testimony that the client was with them at the time of the crime. Relying on the detectives' notes to help him recall the time, the victim testified at the preliminary examination that the robbery occurred at the same hour and time to which the friends will testify. The client explains the time coincidence by admitting to counsel that he stole the victim's watch and rendered him unconscious so that the victim's sense of time was incorrect when relating the circumstances of the robbery to the investigating detectives. Client and lawyer have decided that the client will not testify at the trial.

The lawyer asks whether it would be ethical for the lawyer to subpoena the friends to trial to testify that client was with them at the alleged time of the crime.

MCPR DR 7-101 requires counsel to represent the client zealously. A defense lawyer may present any evidence that is truthful. If the ethical rule were otherwise it would mean that a defendant who confessed guilt to counsel would never be able to have an active defense at trial.

The danger of an opposite approach is that sometimes innocent defendants "confess guilt" to their counsel or put forth a perceived "truthful" set of facts that do not pass independent scrutiny. Many crimes have degrees of guilt, as in homicide, where the "true facts" go to the accused's intent; something a jailed defendant may not be in a reflective mood to assess. Criminal defense counsel are not sent to the jail's interview room to be their client's one person jury and they certainly are not dispatched to court to be their client's hangman. Our society has made the decision to permit a person charged with a crime to make full disclosure to his counsel without fear that, absent the threat of some future conduct (such as a threat to kill a witness), the lawyer will not disclose the information so provided.

The role of criminal defense counsel is to zealously defend the client within the boundaries of all legal and ethical rules. Therefore, if the information confidentially disclosed by the client were to prevent counsel from marshaling an otherwise proper defense, the client would, in effect, be penalized for making the disclosure. Such a policy, over a long run, would tend to cause future defendants to fail to disclose everything to their lawyer; the result would be that they would receive an inadequate defense. Such an approach would be fundamentally inconsistent with the implicit representation made to defendants as a part of procedural due process that they may disclose everything to their lawyer without fear of adverse consequences.

It is the prosecution's responsibility to marshall relevant and accurate testimony of criminal conduct. It is not the obligation of defense counsel to correct inaccurate evidence introduced by the prosecution or to ignore truthful evidence that could exculpate his client. Although the tenor of this opinion may appear to risk an unfortunate result to society in the particular situation posed, such an attitude by defense counsel will serve in the long run to preserve the system of criminal justice envisioned by our constitution.

MCPR DR 7-102(A)(4) prohibits counsel from using perjured testimony or "false evidence," but it is perfectly proper to call to the witness stand those witnesses on behalf of the client who will present truthful testimony. The testimony of the friends will not spread any perjured testimony upon the record. The client indeed was with the witnesses at the hour to which they will testify. The victim's mistake concerning the precise time of the crime results in this windfall defense to the client.

In CI-394 the Committee reviewed a situation where there were tire marks at the scene of the crime. Defendant, after being charged with a crime, altered the tire treads on his car. An expert witness, retained by the defense, was misled when he examined the evidence of the tire tracks. We there opined that the defense lawyer could not ethically present evidence through an expert witness when the expert's opinion was based upon a set of circumstances where the client tampered with the evidence. To do so would perpetrate a fraud upon the court. The situation with the friends as alibi witnesses in the instant case does not involve tampering with evidence. One cannot suborn the truth.

We said in CI-634 that it is axiomatic that the right of a client to effective counsel does not include the right to compel counsel to knowingly assist or participate in the commission of perjury or the creation or presentation of false evidence. Thus, where truthful testimony will be offered, it seems axiomatic that a defendant is entitled to the effective assistance of counsel in presenting evidence, even thought the defendant has made inculpatory statements to his counsel.

Counsel must never be a party to presenting perjury to a court. However, it must be remembered that litigation involves the independent testing by an impartial trier of fact of perceptions of events recalled by human beings. The civil lawyer enjoys the luxury of being able to scrutinize testimony many months before trial by propounding written interrogatories to witnesses and by deposing them on the record before a court reporter. The criminal lawyer does not enjoy this advantage; he goes into the courtroom with, at best, an educated guess at what witnesses for the prosecution may testify and a hope that his own witnesses will not be intimidated into giving testimony different than what he has been led to believe they would. When a witness in a civil case testifies about a daytime event at work he may be expected to have a clear recall of the event. In contrast a witness in a criminal case often testifies about events that occur in the dark of night, diminishing the witnesses' ability to observe. Sometimes a witness will have abused a controlled substance contemporaneous with making his observations, dulling the witnesses' ability to perceive. In practically all criminal cases involving violence the witness is frightened and shocked so that his ability to accurately recall events is affected. Therefore a criminal lawyer must be especially sensitive to the requirement of truthful testimony that Canon 7 places upon him. This burden is more difficult to shoulder than the neat bundle of interrogatories and depositions carried to trial by the civil lawyer.

It should be mentioned that it is appropriate for the lawyer to discuss these concerns with the client. The lawyer must guard against the natural human reaction in a desperate situation (eyewitness testimony to crime with mandatory prison sentence) to become so enamored of an unique defense opportunity that, in contemplating the small tree, he fails to see the forest. It is the convicted client who does the time, not the lawyer. An alibi defense in the instant case may be foolish; the lawyer has a responsibility to counsel his client accordingly. Defendants in serious criminal cases usually are willing to grasp at straws if their lawyer, by word or deed, suggests there is a chance at acquittal using such evidence. It may be in the best interest of the client not to present the alibi defense and, instead, negotiate for a guilty plea to a lesser offense. That evidence could ethically be presented does not mean that it should be. Obviously if the complaining witness gives positive identification of his assailant and if there is other inculpatory evidence, a jury may give very short shrift to the testimony, however true, of defendant's friends.

In the glare of the ethical question, counsel should not be blinded to the difficulty of his client's cause. All the evidence should be weighed and evaluated before deciding to go forward with an alibi defense. This thoughtful consideration of the client and his situation is the mark of a lawyer with high standards of integrity, appropriate discretion, and absolute honesty.