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Is it ever proper for a lawyer to present perjured testimony?

One's instinctive response is in the negative. On analysis, however, it becomes apparent that the question is exceedingly perplexing. In at least one situation, that of the criminal defense lawyer, my own answer is in the affirmative.

At the outset, we should dispose of some common question-begging responses. The attorney, we are told, is an officer of the court participating in a search for truth. Those propositions, however, merely serve to state the problem in different words: As an officer of the court, participating in a search for truth, what is the attorney obligated to do when faced with perjured testimony? That question cannot be answered properly without an appreciation of the fact that the attorney functions in an adversary system of justice which imposes three conflicting obligations upon the advocate. The difficulties presented by these obligations are particularly acute in the criminal defense area because of the presumption of innocence, the burden on the state to prove its case beyond reasonable doubt, and the right to put the prosecution to its proof.



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