University of Pennsylvania Law Review
In appellate litigation, being heard ordinarily means that each advocate will have the opportunity to present arguments to the court, in writing and orally. One of the most valuable aspects of the oral presentation is that judges typically ask questions of counsel. These questions give the advocate insight into what aspects of the case concern one or more members of the court, and they provide the opportunity to respond directly to those concerns. Since the court in any case might be closely divided, the crucial swing vote could well hinge upon the answer to a single question.
Nix v. Whiteside is such a case. The purpose of this Article is to examine three major but unanswered issues in Whiteside. During the Whiteside argument, the Justices raised two of these issues: (1) what standard of knowing must a lawyer meet before acting on the conclusion that the client's testimony will be perjurious; and (2) what should a lawyer do in a case of actual or anticipated client perjury. Despite the Justices' obvious interest in these issues, no satisfactory answers were provided during oral argument or in the Justices' opinions.
In addition, Whiteside is of interest because a third issue that could have been determinative was not even argued to the Court: whether the fifth amendment privilege against self-incrimination is implicated when a lawyer divulges or threatens to divulge incriminating lawyer-client confidences to the court. Accordingly, the following analysis of the argument before the Court will also consider how the fifth amendment might have been used to advantage by Whiteside's lawyer and how it still might be used in any subsequent litigation involving the problem of client perjury.
Monroe H. Freedman,
Client Confidences and Client Perjury: Some Unanswered Questions, 136 U. Pa. L. Rev. 1939
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/391