POSC 130g 1st Edition Lecture 3Current LectureReview of Belge Case: Did what was correct, legal ethics. When one becomes an attorney, their job is to represent their client to the best of their ability- most people have a strong sense of morality. There will be times where there will be a conflict between own sense of morality and what the professional role requires. Comparisons: Scott Peterson: California Business and Profession Code: “It is the duty of an attorney to maintain inviolate the confidence, at every peril to himself to preserve the secrets of his client.” Bernardo case (Canada): Lawyer, Kenneth Murray, withheld evidence. Prosecuted for obstruction of justice. Question: How to deal with incriminating evidence. Wife and husband killed two women; had tapes of it in his fan, told his lawyer. Lawyer held ontothe taps for sixteen months and then contacted the BAR Association about it and he was prosecuted and charger for obstruction of justice. He was acquitted after five years, had he beenconvicted, he would have faced a ten year legal system.How does a lawyer deal with incriminating evidence?Inquisitorial system: Only answer what is askedCan’t maintain the legal process if the clients are afraid to tell the lawyers the truth; can’t be protected if the truth is not said. PerjuryNix vs. WhitesideUS Supreme Court (1986)Facts: Goes to an apartment of Love to get marijuana and there was an argument. Whiteside kills Love in an altercation. Love apparently told his girlfriend to get his “piece” and Love approached him, but Whiteside stabbed him and killed him. During preparation for trial, Whiteside asserts: “If I don’t say I saw a gun, I’m dead.” He didn’t actually see the gun but he owned the gun. After the stabbing, the victim’s family took out the possessions of the things and the police did a half hazard search. Robertson was the defense attorney, but he didn’t have to say he had a gun because it was self-defense. Whiteside said he saw something metallic, but Robertson said merely thinking he had a gun and killed him was self-defense. Robertson couldn’t allow him to say something false, as that would be perjury. Robertson would tell the jury if Whiteside did this. Whiteside at the trialtakes the stand and he knew Love had a gun and acted in self defense, as he thought he was reaching for the gun. Whiteside was cross-examined and admitted he didn’t actually have a job. Police did a half hazard search and the family removed everything after the crime. Robertson was trying to show the fear Love had asserted, but Whiteside had a forty year old sentence withsecond degree murder. The case was appealed, and went through Iowa, through the state legal system in the Iowa Supreme Court affirmed the statement of the attorney that he couldn’t use perjury. Then, he goes into the district court and petitions for Habius Corpus. He is arguing that his sixth amendment right had been violated, the right to counsel. It goes to the United States Supreme Court. Issue: Whether the Sixth Amendment right of a criminal defendant to assistance of counsel is violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial. Appeal: After jury verdict of 2nd degree murder and 40-year sentence, Whiteside appealed. Supreme Court of Iowa affirmed. The right to counsel does not include right to present perjuredtestimony. Federal court-petition for the writ of habeas corpus (“You have the body”). Key question: whether the lawyer’s admonition to Whiteside that he would inform the Court of Whiteside’s perjury constitute a threat to violate the attorney’s duty to preserve client confidences. Even though the defendant was going to commit perjury, that doesn’t mean he doesn’t get his sixth amendment of the right to counsel. The US Supreme Court reversed the 8th circuitU.S. Supreme Court: 1. The Court relied on Strickland v. Washington which requires showing serious attorney error and prejudice (harmless error rule). 2. The Court concluded that there is a specific exception from the attorney-client privilege for the disclosure of perjuryThe court said this is required by legal ethics3. Conclusion: A defendant’s right to effective counsel was not violated when his attorney used threats to dissuade him fro committing perjury. The American Bar Association submitted an amicus curie brief, when it is a friend of the court, an outside course. It is an outside source that is not involved in the case, but with permission of the court, that has an interest in the outcome. Perjury testimony shouldn’t be allowed. Who should get to decide what the defense is? The client or the lawyer? In the common law, a person is innocent until proven guilty. Inquisitorial system: Purpose is to find out whether the person is guilty or not.What if the lawyer has a suspicion but isn’t positive? The lawyer is required to keep it in confidence, reveal it to the court, etcFreedman TrilemmaThe difficult questions are what a lawyer must, should, or may do after his client has given testimony he or she does not believe. Professor Monroe Friedman Trilemma: 1. The lawyer is required to know everything.2. The lawyer is required to keep it in confidence.3. The lawyer is required to reveal it to the court. US vs. Dunnigan (1993)Defendant has no “right to lie”1. Issue: whether a defendant can deny charges and if subsequently convicted be given a longer sentence. 2. Facts: Sharon Dunnigan denied being part of a cocaine ring but was convicted later.3. The US Supreme Court upheld sentencing guidelines that allow “enhancements” for the obstruction of justice. Justice Kennedy concluded it was reasonable to permit a stiffer penalty “for the willful presentation of false testimony.” Questions: 1. Who should decide what defense to offer- the lawyer or the client?2. Does the attorney’s duty to the court to violate the client’s right to effective assistance ofcounsel? Why/why not?3. How much proof would the lawyer need to know with certainty that his client is lying or planning to lie?4. Is there a violation of the 6th Amendment if the client’s attorney doesn’t dissuade the client from committing perjury and the jury/judge recognizes the falsity?Is the truth the only goal of the legal system? Would anyone want to live in a society that the only goal is solving crime? There must be a balance protecting rights and holding criminals responsible.