I Can Feel It In My Bones

By: Wayne C. Fricke; Dec 2001

     I recently spoke at an ethics seminar regarding RPC 3.3(e), which addresses an attorney's refusal to offer evidence that he or she "reasonably  believes is false."  It provides:

     (e) a lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

     The decision can potentially place the lawyer in an untenable position of choosing to refuse to place evidence before the tribunal because of his or her beliefs or a subsequent legal malpractice suit for failure to effectively represent his or her client.  See Falkner v. Foshang, _____ Wn.App. _____, 29 P.2d 771 (2001) (Failure to properly investigate and defend is basis for malpractice claim).

     The Ninth Circuit addressed this rule in part in the context of an attorney's decision not to call witnesses and the resulting validity of the guilty verdict.  See Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999).  Wood involved a habeas corpus petition seeking to have a guilty/death penalty  verdict reversed.  His conviction and death penalty was affirmed in State v. Wood, 117 Wn.2d 829, 822 P.2d 177 (1992), but reversed by the Ninth Circuit in Lord v. Wood.

     In Wood, counsel for the defendant chose not to call three witnesses who would have provided exculpatory testimony on behalf of their client.  Specifically, the three individuals would have indicated that the deceased was alive after the defendant had allegedly killed her.  The attorneys did not call the witnesses because, as they testified in the later evidentiary hearing, they were concerned about their credibility.  In response to the court's question, "what was it about [their] anticipated testimony that made you think it would damage the defense credibility?" the attorney responded:

     That they were not positive that the - that, like I said, the identification and/or the timing was not real strong.  And there was such a -- if I recall such a large amount of evidence indicating the last time she had been seen was on the 16th...

184 F.3d at 1093.

     In reversing the conviction, the court indicated that although great deference is given to trial counsel's strategy, a cursory investigation of the three alibi witnesses and the subsequent failure to put them on the stand constituted deficient performance.  Id.  The court concluded that it was ineffective assistance of counsel where the ultimate reason for not doing so was because the attorneys "simply did not believe [the witnesses] and [they] would have harmed their own credibility with the jury."  Id. at 1089.

     Citing to the rules of professional conduct, the court noted that had the attorneys been certain that the statements were false, the ethical rules would have precluded them from putting the witnesses on the stand.  Id. at 1095, fn.9.  The court also noted, however, while counsel is not under the obligation to "offer testimony or other evidence that [they] reasonably believe is false, a lawyer cannot conclude that testimony is really false unless there is a firm, factual basis for doing so."  Such a basis exists when facts known to the lawyer or the client's own statements indicate to the lawyer that the testimony or other evidence is false.  And while they could conclude that their client is guilty, their belief in their client's guilt does not create an ethical bar against the introduction of exculpatory evidence.  Id. 

     So when may an attorney refuse to offer evidence that he or she "reasonably believes is false?" In State v. Berrysmith, 87 Wn.App. 268, 944 P.2d 397 (1997), Division I of the Washington State Court of Appeals addressed the issue directly.  There, counsel for the defendant asked for an in camera hearing with the judge after he developed a "strong belief that Berrrysmith intended to perjure himself on the witness stand."  87 Wn.App. at 271.  The trial court allowed for the withdrawal and after a conviction the defendant appealed.  In analyzing the issue in the context of RPC 1.15, which requires that the lawyer withdraw from the representation of a client if the client persists in the course of action that the lawyer reasonably believes is criminal or fraudulent, and RPC 3.3, the court, consistent with Lord, began with the proposition that "whether the lawyer's belief is reasonable depends on whether it has a firm factual basis."  Id. at 276, citing State v. James, 48 Wn.App. 353, 366-67, 739 P.2d 1161 (1987).