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DEFENSE COUNSEL’S OBLIGATIONS RE: HAVING A PERJURIOUS DEFENDANT TESTIFY IN NARRATIVE FORM.

The Second Department explained the rules associated with defense counsel’s decision to have a perjurious defendant testify in narrative form:

… [W]here defense counsel indicates an intention to present the defendant’s testimony in narrative form, due process does not require that a record be made of either defense counsel’s reasons for believing the defendant will commit perjury or of defense counsel’s advice to the defendant regarding the intention to commit perjury or the consequences of that course of action. “A lawyer with a perjurious client must contend with competing considerations—duties of zealous advocacy, confidentiality and loyalty to the client on the one hand, and a responsibility to the courts and our truth-seeking system of justice on the other” … . Requiring counsel to put on the record his or her reasons for anticipating perjured testimony and the advice proffered to the defendant related to his or her testimony would not strike the appropriate balance between these competing considerations but rather, would present too great a risk that defense counsel would be forced to reveal client confidences … . A defendant who seeks to challenge counsel’s judgment to elicit testimony in narrative form or counsel’s advice in that regard may raise those issues in a motion pursuant to CPL 440.10. People v Wesley, 2015 NY Slip Op 09310, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

CRIMINAL LAW (PERJURIOUS DEFENDANT TESTIFYING IN NARRATIVE FORM)/EVIDENCE (CRIMINAL LAW, PERJURIOUS DEFENDANT TESTIFYING IN NARRATIVE FORM)/NARRATIVE FORM (TESTIMONY OF PERJURIOUS DEFENDANT)

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