Truth, Justice, and the American Way: The Case Against the Client Perjury Rules

In 1637, England's dreaded Court of Star Chamber pronounced the sentence: John Bastwick, a Puritan activist,' was to be pilloried twice with one ear cut off each time, imprisoned in perpetuity without "books, pen, ink, or paper," stripped of his university degrees, and fined 5,000. Shortly before, he had been escorted up a twisting staircase in Westminster Palace and into a dark, cavernous room with stars painted on the ceiling to be tried on charges of criminal libel for having penned a political tract critical of the government. According to Star Chamber procedure, since Bastwick's counsel refused to vouch for the truthfulness of his client's version of the facts, Bastwick was precluded from placing his version of the truth before the tribunal and, instead, was deemed to have confessed. A century and a half later, the drafters of our Bill of Rights-haunted by the inquisitorial excesses of the Star Chamber and of Continental criminal proceedings-sought to ensure a balanced, adversarial encounter between criminal defendants and the state by providing defendants with the procedural protections of the Fifth and Sixth Amendments.

Since the early 1900s, however, the legal profession has promulgated various codes of attorney conduct that, in addition to attempting to clarify the professional obligations of lawyers and seeking to minimize public pressure for the external regulation of the profession, have threatened these protections. Drafted by attorneys who are frequently insensitive to the dynamics of the adversarial process or hostile to procedural protections accorded criminal defendants, the rules of legal ethics contain provisions that fundamentally conflict with and undermine the adversarial pursuit of justice in our criminal proceedings.