Remedial Measures for False Evidence: A Comprehensive Guide

Remedial Measures for False Evidence

Lawyers have a duty to take remedial measures if they are unable to prevent the use of false evidence or realize that false evidence has already been used.
There are several increasingly drastic remedial measures available.
Lawyers should not jump to use a more drastic option if something less drastic can be done first.
Avoid involving the judge immediately to maintain control over the situation.
The term "remedial measures" includes actions to remedy something that has already happened and measures to prevent something bad from happening in the future.

Model Rule 3.3 includes four different duties.
The first sentence of Model Rule 3.3(a)(3) describes a prospective duty to prevent something from happening in the future.
The second sentence describes measures to deal with the consequences of something that happened already.
There is a duty not to offer any kind of evidence that the lawyer knows to be false, while their remedial duty is limited to material evidence.
Rule 3.3(b) also talks about both a duty to prevent something from happening and a duty to react to something that has already happened.
Rule 3.3(a) applies to circumstances where the lawyer is presenting evidence or when a witness is going to commit perjury or has committed perjury already.
Rule 3.3(b) applies to other types of conduct that can also be considered to be criminal or fraudulent.
Paragraph 12 of the comment to Model Rule 3.3 describes the types of circumstances in which rule 3.3(b) is meant to apply and the type of conduct that it is meant to cover.

The duty to take remedial measures lasts until the end of the proceeding.
Paragraph 13 of the comment defines when a proceeding ends for purposes of the rule.
If the attorney finds out about the use of false evidence before the end of the proceeding, the attorney has a duty to take remedial measures.
If the lawyer finds out about it after the proceeding has ended, then there is a duty not to reveal the information, because at that point the duty of confidentiality applies.
Do not act too quickly or too soon, he or she runs the risk of violating the duty of competence, the duty of confidentiality, or the client's right to effective assistance of counsel.
If the attorney waits too long to act, then there's the risk of violating the duty of candor.
Suspicion alone should not be considered to be enough to justify the attorney taking remedial measures.
A lawyer should not take remedial action until the lawyer has actual knowledge of the need to do so.
The first is based on a good faith determination by the attorney that something is happening, or is about to happen, or has happened that requires the attorney to act.
The other standard is that an attorney should not take action until the attorney has acquired a firm factual basis that there is a need to act according to the duty of candor.
The firm factual basis standard requires something more than a good faith determination, but not as much as actual knowledge.

The different options are mentioned in paragraphs ten and eleven of the comment to Model Rule 3.3 and in People versus Johnson.
Making a list of words all of which start with the letter R.

Talk to the client to try to get the client to change their mind about their plan to commit perjury.

This would be consistent with the duty not to present evidence the lawyer knows to be false, but this alternative is only available if the witness is the client in a civil case or a witness who is not the client, but it is not available when the witness is the defendant in a criminal case.
Because the decision on whether to testify during a criminal trial belongs to the defendant, in such a case the attorney has to allow the client to testify, and hope that the client follows the attorney's advice and does not commit perjury.

Withdrawing is usually not a viable option.
The court is not likely to allow it in the middle of a trial, or even soon before the trial is scheduled to begin.
Withdrawing does little or nothing to resolve the problem regarding the use of false evidence.

The lawyer should ask for a recess, so the lawyer can talk to the client to try to get the client to reconsider.
Get the client to do what needs to be done to fix the problem once the testimony resumes after the recess.

If the perjury has not been committed yet, the lawyer would disclose the client's intent to commit perjury in the future.
If the material evidence has been introduced already, the lawyer would disclose what happened.
Disclose to the judge in a sidebar or in an in camera meeting at which only the judge and opposing counsel would be present.
Once the information is disclosed to the judge, it would be up to the judge to decide what to do next.

The court allows the witness to testify but unprompted by questions by the lawyer who called the witness to testify.
Lawyers are not allowed to make any reference to any part of the narrative testimony when addressing the jury later in the trial.
Proponents argue that it allows the lawyer to avoid participating in a known fraud on the court, while preserving the right of the accused to testify.
Opponents argue that it does nothing to prevent the use of false evidence, that it forces the defense lawyer to abandon the client's defense while the client may be digging himself or herself into a hole, and that the lawyer is unable to help the client during the part of the testimony that is not false.

Tell the lawyers to continue with the case as if nothing was going on.
Associated with a law professor named Monroe Friedman.
It encourages the client to be honest with the lawyer, the lawyer has full knowledge of relevant facts because there is no need for selective ignorance, and there is no need to seek to withdraw from the case, all of which leads to the lawyer being in control of the representation, because the client is not left alone to testify without the lawyer's guidance.
People versus DePalo where the attorney met with the judge without the presence of the prosecutor, and during that meeting he disclosed more confidential information than necessary.
A perfect case for the judge to say Let's do nothing and let the normal course of the adversary system take care of the issue.

The lawyer was cross examining a witness.
A lawyer is not offering evidence when a lawyer conducts cross examination, then the first sentence of 3.3a3 does not apply.
The second sentence about remedial measures doesn't apply because it doesn't fit the description of the facts of the case.
The question becomes whether the lawyer had a duty to disclose mistakes made by the witness for the prosecution.
This is an adversary proceeding, and the lawyer doing the cross examination is trying to create holes in the witness's testimony.
Lawyers are allowed to try to make witnesses make mistakes. In fact, that is pretty much what lawyers are expected to do during a cross examination.
The lawyer knew what the witness was saying was wrong, but the lawyer did not know why that happened.
If the witness gets all confused and can't answer the questions accurately, the lawyer cross examining the witness should take advantage of that.
That is how the adversary system usually works.

The difference between using false evidence and creating false inferences.
This is not an issue of remedial measures, we're going to end this lecture now so that you can go read about this new topic, and we will cover it in a separate lecture.