Contrary to Steve, I think that our online discussion has established some important points of broad interest.
First, Steve has not been able to justify, on policy grounds, the fact that there is a dearth of cases under MR 3.3 in which fee-paid lawyers have blown the whistle on client perjury, and a substantial number of cases in which court-appointed lawyers have chosen to reveal client perjury. (And we’re talking policy here, not what today’s Supreme Court would decide.)
Second, Steve cites People v. Johnson as a case that has rejected my position on client perjury (and note that Steve appears to know very well what that position is). As I said earlier, however, no case, including Johnson, has rejected my position after analyzing any of the relevant constitutional cases, in particular, Massiah v. U.S., U.S. v. Henry, Estelle v. Smith, Fellers v. U.S., and N.J. v. Portash. (Incidentally, there were three dissenting judges in Johnson, including Richard Mosk.)
Third, the Johnson case, along with Steve, perpetuates the false idea that MR 3.3 simply continues the traditional treatment of the perjury trilemma. As stated in ABA Formal Opin. 87-353, however, MR 3.3 represents a “major policy change.” And, as shown in 21 GJLE 139-148, that major policy change is a departure from the traditional view, which I support.
Fourth, the Johnson case, along with Steve, perpetuates the false idea that my position is generally rejected by commentators. In fact, among other supporters are both Marvin Frankel and Geoffrey Hazard – who once were critics – who have both come to agree with me. See 21 GJLE 146-147. Frankel wrote, “The more I see of life and the practice of law, the more justifiable I find the stance that we really ought not to be called upon to ‘know’ when someone’s story is false.” And Hazard has concluded that “requiring a criminal defense lawyer to ‘blow the whistle’ on client perjury is futile or non-productive.” And, as Ellen Yaroshefsky stated, my position is supported by the overwhelming body of criminal defense lawyers.