Ethics Committee Formal Opinion 1994-95/5
Candor to Tribunal: Use of Questionable Evidence for the Purpose of Impeachment
February 16, 1995
ANNOTATION:
An attorney is prohibited from offering evidence in a trial that is known by the attorney to be false, whether or not the evidence was produced by the client or a third party (Rule 3.3(a)(3); Rule 3.3, ABA Model Code Comments, “False Evidence”).
The determination as to whether the attorney “knows” evidence to be false must be made by the attorney who has a full understanding of the surrounding facts and circumstances and may better evaluate his or her certainty of the falsity of the evidence. (Rule 3.3(a)(3); Rule 3.3, ABA Model Code Comments, “False Evidence;” ABA Model Code Comments, “Terminology”).
It is ethically permissible for an attorney to offer knowingly false evidence for the sole purpose of impeachment, provided that the evidence itself is authentic. (Rule 3.3(a)(3)).
QUESTIONS:
- Is an affidavit of an alleged victim of a crime which contradicts a statement made by a criminal defendant to his attorney evidence the attorney “knows to be false?”
- Is it ethically permissible for an attorney to offer knowingly false evidence for the sole purpose of impeachment?