Criminal

Client Relationships Perjury and subpoenas Part 1

Part of the world is going through all the music is out there about love lost, love found, love problems, love gone bad, another love song and these are two of my favorite people Kelly Willis and Bruce Robinson. Their whole new album is called “Cheater’s Game”.
And so you see how troubling all of this is and you look at how then these relationships that explode out of control and end up in our criminal justice system and what kind of problems that they cause for us. Well the first thing you have is you have people who will never admit they have done anything wrong.

You also have people who will sit in your office and lie to you. The victim has a big black eye and she is saying “I’ve failed down the stairs, I am sorry you are paying me and I don’t believe that” and then you have all these people that have confidence of everybody that they’ve ever known who turned out to be somebody totally different. So what are we talking about is a big issue in family violence cases. Yes! It is lying, it is such a bad problem there is even a paper on it called “Perjury in Domestic Violence Cases” where they close some statistics. Where they said that “90%, up to 90% of victim’s recount before the case goes to trial” and in this article it talks about perjury is at war with the criminal justice system.

Well my client thinks the criminal justice is this clown, they really cannot believe that they have been arrested and actually probably the cop out of be a clown suit. The wife is saying it didn’t happened pleased don’t take him I lied on 911, I really don’t want you to prosecute and my clients going to jail anyway. They come in to your office and they say this is going to be the easiest case to get dismissed because my wife or girlfriend or my husband or boyfriend is not going to testify, they are not going to say anything and we end in these very difficult circumstances in these family violence cases. So what’s the first thing we have to worry about? We as lawyer under the ethical rules cannot knowingly offer evidence that we know to be false so that’s very important that there are two couple mental states we have to knowingly put it up there on the witness stand and we have to know it to be false.

We have to try to talk the witness out of the perjury. And please forgive me that I use husband and wife there, I represented lots of woman charged with it, lots of partners, lots of now brothers and sisters, household members but the still the vast majority tends to be husband and wife. So you are talking to the wife about not committing perjury just because she hates the police. They have just gotten into her life, this is all a bit misunderstanding and she wants to do whatever she can to fix this right.

So what you explain and what works well for me is to explain the confidential communication does exist but it does not exist for a future crime. So if you are in my office telling me that you are planning on committing perjury, that’s not covered but a confidence along with my client that I want to be sure under if you are tampering with the witness and you are trying to get this witness to change her story or his story then that is a future crime and that’s not covered by the rules. So what is tampering witness? It’s if he coerces a witness here she coerces a witness to testify falsely.

What’s aggravated perjury? It is in THE penal code with intent to deceive with knowledge of the statements meaning, a person makes a false statement that is material. He did not hit me, well that’s a little different than what you told police and here is the 911 case where you said “he did hit you”, so you need to be very careful because what other cases do both defendant and the victim show up in your office together. Holding hands and loving each other and they are trying to talk to you about how they hate the government and they want the government out of their lives. They think it’s ok to lie. We however cannot be involved in perjury; we do not want to be charge with tampering with the witness. The lawyer also has a duty not to obstruct justice.

This is a separate rule of violation under the rules of professional conduct 804-A that an attorney can be charge with the obstructing justice. We can be charged with perjury if we put this information on but here is the out. Here is the place where it says but you have to be a lawyer and that is that none of this is triggered, the perjury, the tampering of the obstructing justice if the lawyer only believes the evidence to be false, but does not know it to be. This is the big difference; this is where we have to use our judgement.

They come in to our office and in this case, in this particular hypothetical there was only arguing and maybe an apartment with very thin walls so the 911 tape is a neighbor so there is no statements by the victim when police get there she is crying and upset and he is angry and so they take him to jail, they come to your office there is no statements. Everybody suspects something was going on but nobody knows it. If she wants to gets on the stand and says nothing happened you have an obligation to put the witness on the stand that your client wants to put on because you do not know it to be false.

Francisco Hernandez

Author Francisco Hernandez

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