1994-95-05.

• Case Date: February 16, 1995
• Court: New Hampshire

New Hampshire Ethics Opinion 1995. 1994-95-05. NEW HAMPSHIRE BAR ASSOCIATIONEthics Committee Formal Opinion # 1994-95/5Candor to Tribunal: Use of Questionable Evidence for the Purpose of ImpeachmentFebruary 16, 1995RULE REFERENCES:*Rule 3.3 *Rule 3.3(a) *Rule 3.3(c) *Scope *TerminologySUBJECTS:*Candor Toward Tribunal *Criminal Representation *Knowledge Knowing *Trial Conduct *WitnessesANNOTATIONS:

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:

I. 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?"

II. Is it ethically permissible for an attorney to offer knowingly false evidence for the sole purpose of impeachment?

FACTS:The inquiring attorney represents a criminal defendant in a second-degree assault case.(fn1) The prosecution claims that in March 1992, the defendant assaulted his wife and broke her wrist. Through the process of discovery, the attorney learned that in September 1992, the wife provided her counselor with a statement which indicates that she was assaulted by defendant on four separate occasions. The statement does not mention the alleged incident in March 1992. In July 1993, the wife signed an affidavit in which she contradicts her 1992 statement and confesses that she made the 1992 statement under pressure by her counselor. The attorney would like to use the affidavit at trial, not as evidence of defendant's innocence, but to impeach the testimony of the wife. The attorney, however, has received information that causes him to question the validity of certain statements the wife made in the 1993 affidavit...