Perjury by the Criminal Defendant: The Responses of Lawyers in Australia and the United States

His credibility rent on cross-examination, a criminal defendant admits to his defence lawyer having lied in answering questions on direct examination. A second defendant, though innocent, insists in conference that while testifying he will lie in denying being near the scene of a robbery, from concern that that admission would circumstantially buttress the victim’s erroneous identification of him. A third defendant’s instructions are so risible that the lawyer, were she a juror, would urge the others to convict without discussion.

Fear of conviction and sanction will impel many defendants, guilty or innocent, to believe they must testify, and lie in doing so. As with the third defendant, most will hide that intent from their lawyers, from the added fear of reducing the advocate’s interest and effectiveness in defending.

With defendants like these three, how do lawyers in Australia and the United States respond? Answering that question, at least with the first two defendants, illustrates how difficult the choice is, for American lawyers generally reject the Australian response, but are themselves divided over what to do. In turn, these various responses reveal differences in the model of advocacy adopted by lawyers in both countries.