holding that “there is no right whatever — constitutional or otherwise — for a defendant to use false evidence,” and since there is “no permissible choice to testify falsely,” a criminal defendant is deprived of “neither his right to counsel nor the right to testify truthfully” by “defense counsel tak[ing] steps to persuade [him] to testify truthfully,” or risk counsel’s withdrawal
How later courts described this case
- holding that “there is no right whatever — constitutional or otherwise — for a defendant to use false evidence,” and since there is “no permissible choice to testify falsely,” a criminal defendant is deprived of “neither his right to counsel nor the right to testify truthfully” by “defense counsel tak[ing] steps to persuade [him] to testify truthfully,” or risk counsel’s withdrawal
- holding first that a plea deal is accepted by the defendant but rejected counsel's refusal to present perjured testimony by the judge, the issue raised here simply does not breached no professional duty and second that it arise. Much the same reasoning guides cases that cannot establish prejudice under Strickland
- holding “as a matter of law” that federal habeas petitioner could not show prejudice by his counsel’s refusal to allow him to perjure himself at trial “[e]ven ... assum[ing] that the jury might have believed his perjury”
- finding that an attorney does not breach a duty to his client in informing the court of his client’s intention to commit perjury and stating in dicta that the Model Rules of Professional Conduct require disclosure
Written by the judges who cited it.
Distinguished
Distinguished by State v. Hampton, 818 So. 2d 720 (2002)
Therefore, Nix is inapplicable.
The opinion
Justice Stevens,
concurring in the judgment.
Justice Holmes taught us that a word is but the skin of a living thought. A “fact” may also have a life of its own. From the perspective of an appellate judge, after a case has been tried and the evidence has been sifted by another judge, a particular fact may be as clear and certain as a piece of crystal or a small diamond. A trial lawyer, however, must often deal with mixtures of sand and clay. Even a pebble that seems clear enough at first glance may take on a different hue in a handful of gravel.
As we view this case, it appears perfectly clear that respondent intended to commit perjury, that his lawyer knew it, and that the lawyer had a duty — both to the court and to his client, for perjured testimony can ruin an otherwise meritorious case — to take extreme measures to prevent the perjury from occurring. The lawyer was successful and, from our unanimous and remote perspective, it is now pellu-cidly clear that the client suffered no “legally cognizable prejudice.”
Nevertheless, beneath the surface of this case there are areas of uncertainty that cannot be resolved today. A lawyer’s certainty that a change in his client’s recollection is a *191 harbinger of intended perjury — as well as judicial review of such apparent certainty — should be tempered by the realization that, after reflection, the most honest witness may recall (or sincerely believe he recalls) details that he previously overlooked. Similarly, the post-trial review of a lawyer’s pretrial threat to expose perjury that had not yet been committed — and, indeed, may have been prevented by the threat — is by no means the same as review of the way in which such a threat may actually have been carried out. Thus, one can be convinced — as I am — that this lawyer’s actions were a proper way to provide his client with effective representation without confronting the much more difficult questions of what a lawyer must, should, or may do after his client has given testimony that the lawyer does not believe. The answer to such questions may well be colored by the particular circumstances attending the actual event and its aftermath.
Because Justice Blackmun has preserved such questions for another day, and because I do not understand him to imply any adverse criticism of this lawyer’s representation of his client, I join his opinion concurring in the judgment.