Every other kind of (responsible) lawyer asks his or her client questions to help confirm or just better-understand the client’s story. For example (using two areas in which I practiced for long periods), the ethical divorce lawyer has a duty to ask a few questions when a client starts throwing around accusations about the other spouse (who, e.g., often suddenly becomes a danger to their children or an incompetent babysitter). And, antitrust lawyers don’t take conspiracy or boycott allegations on their face and just start drafting their pleadings.

Every lawyer in litigation has to “fight the system.” Criminal defense lawyers — unlike everyone else — only have to deal with an evidentiary standard of “beyond a reasonable doubt” in order to win their case. The rest of the profession can lose despite almost convincing the trier of fact that their story is more likely to be true. It seems to me, therefore, that the criminal lawyer should have an even stronger obligation than other lawyers to make sure evidence creating doubt is not false.

So given the alternative, I’d rather have the requirement of actual knowledge as opposed to just a hunch.

If the lawyer does not have an obligation to try to learn whether shaky-looking evidence is or isn’t false, the rules are protecting lawyers, not the justice system.

Thanks for pointing to this posting from your weblog.

(3) Offer evidence that the lawyer knows to be false.

The commentary provides:

If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence.

The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious
falsehood.

Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the
testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify.

So, did this lawyer “know” that the evidence was false? Probably, but the rule does complicate matters a bit.

(Sorry for the really long comment)

I would like to think that I, too, would not have let the client present that alibi and if the picture is indeed the one you linked to, then I would have to agree that the decision should not have been a difficult one.

A veteran (head) public defender who I respect a lot had this to say about this case: “You’re being too hard on Gebert. . .. I would have never let the client present that alibi.”

I still think there’s a difference between “That picture looks like it is from a catalog” and “I know that picture is from a catalog”.

As to the picture, I didn’t realize that the image you posted was exactly how it appeared in this frame. If that is the case, then I think the case for knowing admission of false evidence becomes stronger.

I think it is pretty obvious that the lawyer was not “oblivious” to this, at best, shaky alibi. The question is what he could have done about it.

He almost certainly would not have been permitted to withdraw based on a lack of definite information, regardless of how obvious the sham was. Stuck with a pushy client, an almost certainly fake alibi and no real concrete proof of the former, he probably had no choice but to proceed to trial.

I will say that his comments post-trial seem a bit unnecessary. It would have been more appropriate to decline comment and go about his business.

The defendant’s effort here was pathetic. It’s hard to imagine that the lawyer thought it possibly true, leaving two possibilities.

Was the lawyer complicit in the attempted false alibi, whether knowingly or by conscious avoidance. Or did the lawyer decide that it was the defendant’s life and, if he insisted on the truth of his alibi, despite how bad an alibi defense it was, decide to let the defendant sleep in whatever bed he made?

Sometimes, when the client absolutely insists, and the lawyer lacks affirmative evidence to the contrary, on pursuing a ridiculous strategy, he’s caught between ethical duties. Was this such a time?