Thursday, October 07, 2004

Rule Amendment to 3.3(a): Say What?

This may or may not be news, but the orders amending the various rules that go into effect on January 1, 2005 can be found here. One of the more interesting amendments is also apparently the subject of the most contention among the justices. And well it might be.

While very few of us were looking, old Professional Conduct Rule 3.3(a)(4) has become 3.3(a)(3) and has taken on a striking new look:

(a) A lawyer shall not knowingly . . .

. . .

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. 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.

The underlined portions are the additions. The amendment itself can be found at page 88 of the PDF file containing the order (here). (Here is the link to the Googlized HTML version of the PDF file, which for me takes even longer to load than the PDF file.)

It was a 3-2 decision to amend the rule as above, with Chief Justice Shepard and Justice Dickson dissenting. Chief Justice Shepard wrote a dissent in which Justice Dickson joined. It appears beginning on page 147 of the PDF file containing the order (again, here). It has not shown up on online databases or Access Indiana anywhere that I can find other than buried at the end of the order. Although I am probably not going to comment further on the rule or the dissent any time soon, they are both interesting enough that, having reproduced the rule amendment in its entirety, I will also reproduce the dissent in its entirety below.

SHEPARD, Chief Justice, dissenting.

Today’s revisions to the Rules of Professional Conduct are the product of prodigious and thoughtful effort by leaders of the American Bar Association, by the Indiana State Bar Association, and by this Court, to name a few of those who have labored at the task. In the main, these new standards for lawyer conduct will well serve the courts, the profession, and the public, and I take a sense of pride in their adoption. I think the profession and this Court have taken but a single wrong turn.

Since the American Bar Association first issued canons of ethics in 1908, and for at least that long in Indiana, a lawyer representing the defendant in a criminal case has had the same obligation that all of us lawyers have to promote the truth before the judge or jury. Lawyers have long thought that it both demeaned the profession and damaged the role of courts to present false evidence.

That now changes. Today’s amendments to Rule 3.3 add a striking command to existing practice by saying: “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.” Put another way, lawyers who try cases are generally called upon to decide what evidence to present and how to present it, except that lawyers will now be obliged to put on the stand a client the lawyer believes will commit perjury. I think this is a bad idea for the profession and for the cause of justice.

The Court has not changed this rule because it is compelled to do so. The Supreme Court of the United States has told us in unmistakable terms what the Constitution means on this very point: “Whatever the scope of a constitutional right to testify, it is elementary that such right does not extend to testifying falsely.” Nix v. Whiteside, 475 U.S.157, 173 (1986). Thus, a majority of my colleagues have chosen this path because they believe the system of justice will be improved by it. I do not.

The bench and bar are currently much focused on building public trust and confidence in the courts and the legal profession. A decision to compel lawyers to put before juries testimony they believe is perjured can only detract from those efforts.

This change will also cause an important shift in the relationship between the criminal defendant and the defendant’s lawyer. Under the present rule, the lawyer who works to dissuade a client from testifying falsely possesses some considerable clout in the discussion because it is presently the lawyer, in the end, who decides whether to call the client to stand. Under the new rule, the client will know that this is not the lawyer’s call at all. If the client insists, the lawyer will be bound by the rule to assent and assist.

Moreover, the very dilemma that now proves so difficult for defense lawyers will be made even more difficult. Under the present rule, the lawyer who must contend with whether she “knows” testimony is false (and therefore must not present it) or whether she merely “believes” it is false (and therefore may present it or not) is free to make the decision to go forward based on her assessment of quite a number of considerations. These might include her own assessment of whether the client’s testimony may help his cause or actually seal his fate, for instance. The new rule requires the lawyer to make this decision based on a single consideration--does the lawyer “know” the client’s testimony will be false. It seems to me that the very dilemma that has led the defense bar to ask for this change will be rendered even more difficult by the change itself.

Furthermore, I think that this amendment places defense lawyers on a different footing than prosecutors in a way that will be unhelpful to their work. For a period of some twenty years, prosecutors were in the habit of reading to jurors from an opinion authored by Justice Byron White, speaking for three members of the Court, as follows:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. … If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. … In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

United States v. Wade, 388 U.S. 218, 256-58 (1967) (White, J., concurring in part and dissenting in part) (footnotes omitted). Public defenders and other members of the criminal defense bar properly disliked the use of this quotation and asked us to disapprove its use, which we ultimately did. Miller v. State, 623 N.E.2d 403 (Ind. 1993).

The Court’s decision not only to condone the use of perjury but to require defense lawyers to use it at the client’s option takes us back a step by creating a differential between prosecutors and defenders as officers of the court dedicated to pursuing the truth.

Dickson, J., joins.

I had no idea that the Indiana defense bar had been asking for such a change. At the moment, I can't think of a reason it would have; and the implications of this change are almost as mind-boggling as Blakely. I hardly know where to start thinking about it.

[A very few minutes later]
Yes, I do know where to start thinking about it: What would Justice DeBruler have thought? My guess is "Not much." Justice DeBruler, are you out there?

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