Discretion to Refuse Doubtful Evidence

Discretion to Refuse Doubtful Evidence

Rule 3.3(a)(3) hands the lawyer a power, not a duty: "A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false."¹ The two sentences before it both turn on knowledge. The first bars the lawyer from offering evidence she knows is false. The second requires reasonable remedial measures when the lawyer comes to know that material evidence already offered was false. The third sentence reaches a lawyer who has solid grounds for suspicion but lacks the certainty that knowledge requires, and for that lawyer the rule commands nothing.

The three sentences together form a ladder with three rungs:

• Knowledge of falsity: the lawyer may not offer the evidence, and must take remedial measures if it has already come in.
• Reasonable belief of falsity, without knowledge: the lawyer may refuse to offer the evidence but need not.
• Mere doubt about reliability: the rule gives the lawyer no occasion to withhold the evidence.

Because the middle rung is a permission, a lawyer who offers evidence she reasonably believes is false has not broken the rule. The prohibition reaches only what the lawyer knows to be false, and she does not know. By submitting the evidence and letting the factfinder judge its validity, she stays within her duty of candor.²

The discretion protects the lawyer in two ways. A lawyer may feel ethical qualms about presenting what looks fabricated. She may also see that gravely dubious evidence is likely to undermine the case or her own credibility. If she withholds the evidence for either reason, no one can charge her with a lack of diligence or zeal on the client's behalf.³ The permission also explains why the rule stops short of a command. A mandatory duty triggered by belief would make the lawyer the judge of her client's evidence.

The opposite error treats doubt as if it were belief. Perfectly legitimate evidence is often of uncertain reliability, and resolving reliability is the factfinder's task, not the advocate's. A lawyer who withholds potentially important evidence merely because it is doubtful has taken on the role of judge against her own client's interests.⁴ The permission in the rule covers evidence the lawyer reasonably believes is false, and doubt alone does not reach that standard.⁵

The difference between the two scenes lies in the lawyer's basis for concluding anything. In the first, concrete contradictions point toward invention and support a reasonable belief. In the second, an impression and a few unflattering facts leave only doubt, so the evidence goes in.

The discretion disappears in one setting. When the evidence is a criminal defendant's own testimony, the middle rung vanishes, and a defense lawyer who reasonably believes but does not know that the testimony will be false has no power to refuse it.⁶ Comment 9 to Rule 3.3 gives the reason: given the special protections historically provided to criminal defendants, the lawyer must honor the client's decision to testify unless she knows the testimony will be false.⁷ Two lawyers with the same suspicion therefore hold different powers. The civil lawyer may decline to call the witness she believes is lying, and the criminal defense lawyer may not decline to call her client. Only knowledge brings the ban on false evidence back into play for the defendant's testimony. A later section takes up how the rule treats a defendant who insists on testifying falsely.