We’ve all seen, in person or on T.V., the witness with his hand on the bible or right hand raised, swearing to tell “the truth, the whole truth and nothing but the truth, so help you God.” By taking an oath, or affirmation, the witness is implicitly inviting punishment from God if the statement is untrue. But even if the witness doesn’t believe in God, the legal consequence of taking an oath is to subject the witness to penalties for perjury if the statement is false. Such severe consequences should force people to tell the truth. Does that mean that witnesses, under oath, always tell the truth? Unfortunately, the answer is NO.
Witnesses tend to testify in a manner that will put them in a good light. Or to justify their actions. Or to profess their innocence. Or to place fault with another person. Other witnesses flat out lie, or convince themselves that the lie is true, and may come to believe that the lie is the truth. Still, other witnesses seem unable to differentiate the truth from a lie, and seem to have no conscientious reservations about lying under oath. How is this possible?
Pontius Pilate asked “What is truth?” Today, we hear of “alternative facts,” which seems to imply that truth is in the mind of the beholder. We certainly don’t see enough examples of honest, truthful, righteous, moral and ethical individuals among public figures – not politicians, not even Presidents.
The Chicago Tribune claims that former President Trump lied over 2000 times (although he was not under oath). President Obama lied about certain benefits of the Affordable Care Act (Obamacare). President George W. Bush lied about the existence of weapons of mass destruction to justify the invasion of Iraq. President Clinton lied about sexual relations with an intern. President George H.W. Bush lied about not raising taxes. President Reagan lied about not trading arms for hostages. President Carter may have been too honest when he talked about looking at women with lust. President Nixon lied to cover up the Watergate break-in. President Johnson lied to hide the research (Pentagon Papers) indicating that we were losing the Vietnam war. And on it goes.
In addition to witnesses, lawyers are required to be truthful, too. Trump attorney Rudy Giuliani recently had his law license suspended by the New York Supreme Court for making “demonstrably false and misleading statements” in his effort to overturn the presidential election. Other Trump lawyers are facing investigations by the Georgia, Arizona, Michigan and Texas state bars for filing frivolous lawsuits and spreading baseless fraud conspiracy theories.
So how does an ethical lawyer handle a client or witness who lies under oath? Rules of Professional Conduct prohibit an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Other rules prohibit a lawyer from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. If the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct, he or she must decline or withdraw from representation.
If the judge won’t let the lawyer withdraw as attorney, he or she still cannot offer evidence to deceive the court. This could be construed as suborning perjury. The proper way for a lawyer to handle a witness, who the lawyer knows intends to lie on the stand, is to try to convince him to be truthful. If the witness proceeds to lie, the lawyer’s duty, as an officer of the court, is to avoid eliciting more lies by asking more questions. Instead, he or she may allow the witness to testify in a narrative form (telling his story), which of course, sends a silent signal to the judge that the witness may be lying. This ethical dilemma can be avoided in a criminal case, where the defendant may elect not to testify under oath, and because an accused defendant is protected by the Fifth Amendment right to remain silent – his silence cannot be used against him.
If you or someone you know has been charged with a crime, having an experienced criminal defense attorney such as Greg Martucci can make all the difference in the outcome of your case. Greg will thoroughly investigate the charges, explain your constitutional rights and protect your rights, discuss your options and vigorously defend you through trial. If requested, he will also engage in plea negotiations with the prosecutor to reach a fair disposition of your case. In some cases, he can later expunge or seal all records of an arrest.
Call Martucci Law today at 630-980-8333 to schedule your free initial office consultation. Learn how we can help you face criminal charges with confidence.