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Due Process – Defendant’s Right to Testify, as Affected by Intent to Commit Perjury – Counsel’s Role

State v. Derryle S. McDowell, 2003 WI App 168, affirmed2004 WI 70, ¶¶42-47
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John T. Savee, John A. Pray, Frank Remington Center & WACDL

Issue/Holding: The defendant’s right to testify does not include a right to testify falsely, Nix v. Whiteside, 475 U.S. 157 (1986):

¶37. From Nix, we derive five principles that lay the foundation for our analysis:• Whether simply “assumed,” or as a corollary to the Fifth Amendment privilege against compelled testimony, or as a corollary to the Sixth Amendment right to assistance of counsel, a defendant in a criminal trial has a right to testify. See id. at 164. See also Rock v. Arkansas, 483 U.S. 44, 51-53 (1987) (defendant’s right to testify “is one of the rights that `are essential to due process of law in a fair adversary process'” under the Fifth, Sixth, and Fourteenth Amendments).

• “Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely.” Nix, 475 U.S. at 173.

• “It is universally agreed that at a minimum the attorney’s first duty when confronted with a proposal for perjurious testimony is to attempt to dissuade the client from the unlawful course of conduct.” Id. at 169.

• “Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law.” Id. at 166.

• “For defense counsel to take steps to persuade a criminal defendant to testify truthfully, or to withdraw, deprives the defendant of neither his right to counsel nor the right to testify truthfully.” Id. at 173-74.

Interestingly, the court doesn’t mention the recent holding in State v. Weed, 2003 WI 85, ¶39, that a defendant has a “fundamental” constitutional to testify. But this omission should not impact the result; it is clear [“elementary,” as Nix puts it], that no matter how fundamental the right it is trumped by an intent to commit perjury. As to synthesizing these competing policies: that appears to be counsel’s cross to bear.

UPDATE: Though this holding resolves Wisconsin’s approach, for additional aupport for the idea that counsel’s “mere belief, albeit a strong one supported by other evidence, was not a sufficient basis to refuse [defendant’s] need for assistance in presenting his own testimony,” see U.S. v. Midgett, 01-4674 (4th Cir. 9/4/03):

The question of what a lawyer should do when confronted by potentially perjurious testimony has long caused consternation in the legal profession, producing heated debate and little consensus. On the one hand are the series of constitutional rights to which a defendant is entitled and for which the defendant’s lawyer is called to provide zealous advocacy; on the other hand are the lawyer’s obligations to the court to seek the furtherance of justice. Similarly, the court itself is obliged to ensure that the constitutional rights of the defendant are protected, while also seeing that proceedings are conducted fairly and truthfully. Midgett argues that these obligations were not adequately met when his lawyer, disbelieving Midgett’s proffered testimony, sought to withdraw from representing him and approached the court to discuss the lack of corroborative evidence in support of Midgett’s case. Likewise, Midgett argues that the court should not have confronted him with a choice between exercising his right to take the stand and his right to be represented by counsel. Under these circumstances, we agree.

And for further federal support for the idea that the right to testify being personal and fundamental, its waiver must be knowing and intelligent, see Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003) (“the right is personal to the accused, and not capable of being waived by counsel on the defendant’s behalf … personal waiver of this fundamental right, which protects the fairness of the criminal proceeding, must have been knowing and intelligent to be valid”); caution: Ward does not hold that the on-record procedure mandated by Weed is required under the U.S. Constitution.

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