The Knowledge Requirement

The Knowledge Requirement

The candor duties in Rule 3.3 turn on one word. Paragraph (a) begins “A lawyer shall not knowingly,” and that adverb governs each prohibition listed beneath it.¹ The duty to correct false evidence already offered starts when the lawyer “comes to know” of its falsity. The duty to act against fraud on the tribunal reaches only a lawyer who “knows” that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding.² The first question in any Rule 3.3 problem is therefore not whether the evidence is false. It is whether the lawyer knows it.

Knowledge here means actual knowledge. Rule 1.0(f) makes the test subjective, asking what the lawyer in fact understands to be true, but adds that knowledge may be inferred from the circumstances.³ Each half of that definition does work. Because the test is subjective, the standard is not what a reasonable lawyer should have known. Because inference is allowed, a lawyer cannot ignore an obvious falsehood.⁴

The rule thus sorts a lawyer's state of mind into three tiers, and each carries its own consequence:

• A lawyer who knows the evidence is false may not offer it, and if it has already been offered must take reasonable remedial measures.⁵
• A lawyer who does not know, but reasonably believes the evidence is false, may refuse to offer it. The permission does not extend to the testimony of a criminal defendant.⁶
• A lawyer who merely suspects falsity has neither the obligation nor the permission.

The mandatory duties and the discretion each get a section below. This section is about where the line between knowing and everything less falls.

Nix v. Whiteside supplies a clear example of knowledge. About a week before trial, while preparing for direct examination, the defendant told his lawyers for the first time that he had seen something “metallic” in Love's hand. Asked about it, he answered: “[I]n Howard Cook's case there was a gun. If I don't say I saw a gun, I'm dead.”⁷ Two things made that more than a changed story. The account shifted on the eve of trial, and the client himself explained the shift by what he needed to say rather than by what he remembered. A concurring opinion treated the lawyer as knowing, finding it “perfectly clear that respondent intended to commit perjury, that his lawyer knew it.” The same opinion cautioned that a lawyer's certainty that a change in recollection signals intended perjury “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.”⁸ The facts and the caution mark the boundary together. A shift in testimony raises a question, and Whiteside's own stated reason answered it.

The contradictory witness differs from Whiteside in the one respect that matters. Whiteside gave his lawyers a different account and then stated why he would swear to it. The witness simply has two versions and no stated reason. The same line separates suspicion from knowledge when all the lawyer has is instinct.

A client's assurance of truthfulness gives the lawyer legitimate footing. The lawyer seldom faces a client who truly insists on testifying in a way the lawyer knows to be false. When the client assures the lawyer that the testimony will be truthful, the lawyer may rely on that assurance and let the client take the stand in good conscience. If the client then betrays the assurance or surprises the lawyer with false testimony, the lawyer may have a duty to take reasonable remedial measures, a subject developed in later sections.⁹

Criminal defense puts pressure on this line. The accused has constitutional rights to take the stand even when the lawyer thinks it a bad idea, to invoke the privilege against self-incrimination, and to represent himself. A defense lawyer too anxious about candor risks interfering with those rights, and courts sometimes bend over backward to find that a lawyer did not know a client's proposed testimony was false, even when any rational person would conclude the client is lying.¹⁰ That tension returns below, when a defendant's own testimony is taken up.