Introduction – The Issue: Lying to Your Criminal Defense Lawyer
One would think that the answer to the question: “should I lie about my case to my lawyer?” – would be obvious.
I try hard to be as direct with my clients as possible about the facts of their case. It usually goes something like this:
“Please tell me everything about the facts of your case and please include ALL of the facts and leave nothing out.”
Some spin is expected. That’s natural. But invariably it has been my experience there are those who either intentionally lie about the “toughest” facts, try hard to avoid them, or may withhold the “bad facts” altogether.
As discussed in this article, the clients that follow this pattern of avoidance usually withhold evidence they believe could hurt their case. It is the kind of information that the client may wish to share with anyone – even their lawyer.
The truth is this – a lawyer, any lawyer handling any important legal matter must have all of the facts and evidence in the case to do their job. To plan an effective defense in any criminal case, a criminal defense lawyer should not and cannot, at any time be “blindsided” by an important fact or piece of evidence that has been withheld by the client.
The attorney-client working relationship is initially formed and can only survive if it is based on trust. When the client lies to his or her lawyer it makes that relationship, which is already inherently difficult, much more difficult. The lawyer may be forced to “trust but verify” each important fact disclosed by the client and to question that disclosure of the important facts has been complete.
This adds unnecessary components of distrust, suspicion, and skepticism and can take precious time away from other important aspects of defending the case sometimes have disastrous effects. The level of distrust can also sometimes grow to the point that the professional relationship can totally disintegrate.
Defining the Issue – What Exactly IS a Lie?
Lying, by definition, involves at least two parties: the deceiver and the deceived.
The deceiver, in this instance, has retained a criminal defense lawyer to represent them usually in a matter is of great importance in their life.
The deceived, the lawyer, may at some level, either knowingly or unknowingly ”participate” in perpetuating the lie.
The deceived, the lawyer, may unwittingly participate in the progress of a lie…
by not pushing harder for the truth (apathy);
through ignorance (lack of experience or training);
through bias (the desire to accept the lie because the lawyer may need to believe it for some reason related to the defense); or
because of overconfidence (a kind of arrogance of never thinking to look behind a lie).
Lawyers are no different than anyone else. We are human. We can sometimes be gullible, having a natural tendency to want to believe our clients, especially those who are so obviously placing their trust in us.
We expect people in trouble will always tell us the truth. It seems inconceivable that the client would lie about something so important to their lives. And we are often wrong.
The great emotion that many clients bring to their version of the truth may, at least at first, “cognitively overwhelm” the inexperienced criminal defense lawyer. However, the experienced criminal defense lawyer, must and will, forcefully, “cut through” that emotion to get to the critical facts of the case.
It may also be surprising that, even with 21st-century technology, there is still no method, technique, or piece of technology that can practically and reliably determine whether someone is telling a lie.
It is unseemly and not realistic to “polygraph” a client when there is a suspicion that the client is lying. Research in this area has proven that most people, including lawyers, may be unable to detect lies with any greater accuracy than the truth and for some clients, lying is so integral to their ability to manipulate their world, and they may not even realize they are lying.
Why Do Client’s Lie to Their Lawyers… (It’s Complicated)
People lie for basically one of two basic reasons:
The First Reason: The deceiver selfishly believes he or she, has more to gain from lying than from telling the truth.
The Second Reason: The deceiver believes that the lie may benefit others in some way.
A lie can take the form of:
A complete deception;
An exaggeration; or
An omission of important facts.
The type of lie is important. An exaggeration may temporarily damage a case but is usually quickly uncovered. Whereas a complete deception or omission of an important fact can sometimes mean the difference between freedom or a conviction followed by jail or even a prison sentence. The stakes could not be higher.
Why Do People Lie to Their Lawyer in a Criminal Case?
My life experience has taught me that, in the context of a criminal case, people lie for far more complex reasons than the basic reasons listed above. Lying to a lawyer under the stress of criminal charges is more complicated.
Two Fears -The Fear of Punishment and the Fear of Being Judged
Punishment – The fear of punishment runs as deep as one’s childhood. This is the primary reason people lie or omit a difficult fact when they are charged with a crime in my opinion.
Fear of the Judgement of Others – A second deeply held fear that is relevant in this context is the fear of being judged. This is even more complex. As humans, we have a difficult time admitting when we have done something wrong especially if it has had a serious impact on another such as the victim of the crime. We fear others will judge us harshly for our actions and that we could lose their love, their friendship, or their respect.
Other Reasons – Denial, Shame, and Embarrassment
Denial – Denial is also very real. Defendants believe at some level that if they don’t think about an existential threat to their lives, it will go away. If they refuse to acknowledge the threat, by hiding from that threat, it does not exist. This sometimes means not admitting that the threat exists to anyone …even to themselves.
Shame and Embarrassment – The most common reason client’s lie is the last, and perhaps most obvious reason, – the shame and embarrassment that results from the charge itself,… innocent or guilty, the shame alone from being criminally charged has a destructive impact on our lives.
Lawyers are Advocates, not Judges
The reality of the criminal defense lawyer-client relationship is this – your lawyer is the last person who would ever judge you. Their very existence is dedicated to the exact opposite. They strive to make things better.
Criminal defense lawyers, not only are duty-bound to advocate on behalf of their clients as are all lawyers but by virtue of their chosen field of law – criminal defense – (which they have intentionally selected among all of the other available fields of law), they well understand the need to never “judge” their client’s actions, rather they use every skill, every talent they possess to achieve the best possible result in the case.
The criminal defense lawyers that I know are compassionate, sensitive, and empathetic and… they have tough skins. Nothing shocks them – they have seen it all.
After almost 39 years, (as of 2021), first as a former career prosecutor in Arapahoe and Douglas Counties, (for more than a decade), and later, as a criminal defense lawyer (for more than 2 decades), I have been on one side or the other of every possible criminal case scenario hundreds of times.
The Myth: If I Lie to my Lawyer, The Lawyer Will Fight Harder for Me
This is a section of this article that deserves special attention.
Clients, especially those who lack trust in their lawyer and/or in the criminal justice system as a whole, may lie because they mistakenly believe that if they admit they are guilty, their lawyer won’t fight as hard for them or may even abandon or sabotage their case.
Some clients are convinced that by telling their lawyers the truth, their lawyer may not like or respect them, or may judge them for their actions and therefore not vigorously defend them in court or otherwise aggressively advocate for their cause.
Nothing could be further from the truth.
The truth is the complete opposite proposition, it is lying about the case to a lawyer that may have that exact impact the client fears most, …alienation and a loss of the lawyer’s respect and trust in the client.
Lying about, or omitting important facts, makes the lawyer’s job to defend a case much harder by forcing the lawyer to focus on tasks that distract from the overriding goal of successfully defending that case.
A comprehensive evaluation of a criminal case requires an understanding of all of the “moving parts” that make up that case. The foundation of any defense strategy is dependent on an accurate understanding of the facts and evidence in a case.
There is a finite amount of time to formulate the defense in any criminal case. Whatever the resources of the client, the more time spent on constructing that defense, in a universe of finite resources and crushing court deadlines, the better result for the client.
As noted, lawyers are not judges, they do not waste any time focusing on whether their client is innocent or guilty. The focus is attacking the weaknesses in the state’s case. A criminal defense lawyer’s duty – his or her life – is dedicated to protecting the interests of their client – the person accused by the government of a crime….nothing more and nothing less.
With very few exceptions every privately retained criminal defense attorney and court-appointed public defender I have known is deeply committed to ensuring the best possible outcome to their clients in the cases they work. Every day in courtrooms across the country, criminal defense lawyers fight for their clients, protect their constitutional rights, attack the state’s case at every opportunity and strike hard blows in an attempt to obtain the best result in every case they defend.
It Makes No Sense to Lie to the Person Who May Hold Your Fate in Their Hands
Criminal defense lawyers are committed to reaching the best result possible for their clients. While a “win” in the criminal justice system is dependent on the facts and evidence of the given case, to effectively develop a plan or strategy the lawyer must know all of the facts,… the good, the bad, and the ugly.
The client that lies or withholds key information or refuses to provide the details necessary to develop a defense – a strategy and theory of the case – only hurts themselves. It is not just the loss of precious time, as noted above, lies and/or omissions of key facts may take the case in entirely the wrong direction.
Whatever the truth is, knowing that truth provides the lawyer with an opportunity o focus on what really matters – answering this question:
Can the state prove the case against my client, and if they can prove the charge, what possible defenses are available to the defense at trial?
A Disaster in Waiting: When the District Attorney Knows More About the Case Than the Criminal Defense Lawyer
Rule 16 of the Colorado Rules of Criminal Procedure requires the prosecutor to turn over their entire case to the defense. The reverse, however, is not true. A defendant is not obligated (with few exceptions) to reveal their case until that case actually unfolds at trial.
That key advantage can be lost when the defendant withholds key information from their lawyer.
For example, Colorado law permits the defendant to assert the defense of alibi. If a client lies to their lawyer and provides the lawyer a fake alibi, the time, cost, and effort to “follow” the phony alibi, let alone the loss of credibility with the judge when the phony alibi is later exposed, can do immeasurable damage to the case. If the prosecutor disproves the alibi at trial before the lawyer realizes it was a fake, the damage, in my opinion, cannot be undone.
Not knowing the full truth puts a defense lawyer at a terrible disadvantage.
As a former career prosecutor, I watched as the defense case “evaporates” when a key lie by the defendant is exposed and the defense lawyer for the first time realizes what their clients never told them.
A major advantage to a person charged in our criminal justice system is the right to withhold the facts and evidence of the case until trial. This advantage is lost when a defense lawyer is compelled to “cross-examine” and investigate their own client.
There should never be a need to spend inordinate amounts of time pushing a client for the truth. It can never be understated, secrets, lies, and omissions can literally cripple the defense lawyer’s ability to successfully defend a case.
Complete Trust, Absolute Confidentiality and the Role of Attorney-Client Privilege
The right to absolute confidentiality is at the foundation of the attorney-client relationship. A lawyer’s role in the United States is unique. A lawyer may be the only person in one’s entire life who may never reveal one’s most forbidden secrets.
From the moment a lawyer answers the phone or meets with a potential client that lawyer is duty-bound to maintain absolute confidentiality regarding ALL communications between the parties. This is true whether the client decides to retain the lawyer or not.
Put a little differently, the attorney-client “privilege” applies to verbal and written communications in person, over the phone, by mail or email, or over the internet. It is the most comprehensive privilege under the law for a very good reason.
The need for absolute honesty and trust between lawyer and client is not just important, it is the cornerstone of their professional relationship. When a person’s very freedom is threatened by the state, mutual trust forms the foundation of any attempt to successfully defend that case.
Lawyers do not always take the time to make this concept clear to their clients. If a criminal defense lawyer expects the complete and honest disclosure of all of the relevant facts of a case, there must be unquestionable trust.
Lawyers should never assume that the clients understand the breadth and depth of law regarding attorney-client confidentiality. It must be completely understood by the client that by providing full disclosure of the facts to their lawyer, they need not fear that those disclosures will later be used against them in any way.
While the lawyer-client professional privilege protects against ANY disclosure of communications between client and lawyer, there are rare exceptions that also must be made clear. The primary exception is when a client discloses the intention to commit a new crime.
The Key Exception to Absolute Attorney-Client Confidentiality – When the Client Plans to Commit a Crime
The primary exception to a lawyer’s duty of confidentiality is when a client informs their lawyer they are planning to commit a crime. Under this exception, a lawyer may reveal a client’s confidences as reasonably necessary to prevent that crime from being committed.
What follows, reprinted in its entirety, is the Colorado rule regarding attorney-client privilege:
Rule 1.6 – Confidentiality of Information – Colorado Rules of Professional Conduct
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to reveal the client’s intention to commit a crime and the information necessary to prevent the crime;
(3) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(4) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(5) to secure legal advice about the lawyer’s compliance with these Rules, other law or a court order;
(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based 67yhhjupon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information is not protected by the attorney-client privilege and its revelation is not reasonably likely to otherwise materially prejudice the client; or
(8) to comply with other law or a court order.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
For more information on attorney-client privilege, there is an excellent online article about attorney-client privilege at www.Wikihow.com
The Issue for a Criminal Defense Lawyer is NOT the Guilt or Innocence of the Client – It is Whether the Government Can Prove the Charges the Government has Filed
Knowing that their client is guilty of the crime or crimes charged is not relevant to the job of a criminal defense lawyer. Guilty or innocent their sworn duty is to investigate and to challenge the strength of the state’s case at every turn.
Criminal defense lawyers know that aggressively challenging the “essential elements of every charge” – every piece of evidence, every prosecution witness, and every significant factual allegation…. is the job.
The guilt or innocence of the accused is irrelevant to the criminal defense lawyer’s duty to zealously defend the accused. The critical decisions to be made to go to trial or to settle a case can turn on other factors. Some examples are the following:
- Was there a violation of the defendant’s constitutional rights?
- While the state may not have enough evidence of the crime charged – is there proof beyond a reasonable doubt of the lesser crime?
- Is the prosecutor refusing to negotiate a reasonable plea agreement and, if this is true, what is the risk to the defendant in trying the case?
- Are there key evidentiary weaknesses in the state’s case such as lost evidence or missing witnesses?
- Is there a risk that, in the event of a guilty verdict, the judge may, after hearing all of the evidence, sentence the defendant more leniently than not having a more complete understanding of the case?
- Was the case so poorly investigated that all of the evidence obtained may be seriously called into question?
- Are there significant affirmative defenses available such as self-defense in an assault case?
A criminal defense lawyer is charged with protecting the civil rights and liberties of their client. There is no greater responsibility in the criminal justice system. That overarching duty is not impacted by the guilt or innocence of the defendant. The duty remains the same.
The Lawyer’s Dilemma – Client Lies Can Impact a Lawyer’s License to Practice Law and/or Reputation in the Community
There is another, separate, but important duty owed by a criminal defense lawyer to the criminal justice system, and clients must also be aware of and fully understand this duty.
Every lawyer, including criminal defense lawyers, has a duty of candor to the court. A lawyer can never, ever, present fraudulent, false, or perjured evidence no matter what the source of that evidence.
The lawyer’s “duty of candor” to the Court prohibits a lawyer from:
- Knowingly making false statements of material fact or law to a court;
- Failing to disclose a material fact to a court when the disclosure is necessary to avoid assisting an illegal, criminal, or fraudulent act by the client;
- Offering evidence the lawyer knows is false; or
- Failing to disclose legal authority harmful to the client’s position which is known to the lawyer but not disclosed by opposing counsel.
The duty of candor also obligates attorneys to take reasonable remedial measures to correct material evidence he or she later learns is false.
If a criminal defense lawyer intentionally presents or uses perjured testimony in court, that lawyer will almost certainly face severe disciplinary action which can include losing their license to practice law.
It is not only the lawyer’s license that may be at stake, attorneys who are known to be untrustworthy can sustain permanent damage to their reputations. The lawyers that practice in my field of law jealously guard their reputations for many reasons, not the least among those reasons, is the respect of the lawyers with whom we work and the judges in whose courts they appear each day.
As “officers of the court,” lawyers have a duty to investigate evidence the lawyer represents to others as true. Lawyers may not comfortably rest on representations from a client that the lawyer reasonably suspects may be false.
Again, clients must fully understand that if their lawyer becomes aware of a falsehood at the time of a presentation of that falsehood in any context, in or out of court, must, upon later learning of a lie, must correct the record.
Finally, if a lie or omission emerges at some point in a criminal case, depending on the significance of that lie or omission, it can call the actions of the criminal defense lawyer into serious question, and may result in the requirement that the attorney withdraws from the case.
Your Lawyer May be Forced to Withdraw From Your Case
When a client has lied to their lawyer, depending on the context, there may be grounds for the attorney to withdraw from the continued representation of that client. For example, if a criminal defense lawyer knows the client is planning to lie under oath, the lawyer is ethically compelled to take steps to “recuse” (remove) him or herself from the case.
Under these circumstances, the attorney-client privilege still requires, unconditionally, that the lawyer maintain absolute confidentiality of all communications (with the exceptions listed above.)
A lawyer cannot “suborn” perjured testimony. Suborning perjury, calling a witness to the stand the lawyer knows will lie, is a clear validation of the Colorado Rules of Professional Conduct and may require the lawyer to withdraw from the case.
Another Reason to Tell the Truth – the Colorado Crime of Perjury 18-8-502
If a client lies under oath and that lie is later exposed, it is very possible that the client could face grave consequences such as the felony charge of perjury.
When a person presents lies under oath, even if those lies are in written form, the crime of perjury may have been committed.
Section 18-8-502, Colorado’s crime of perjury, states that:
(1) A person commits perjury in the first degree if in any official proceeding he knowingly makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law.
(2) Knowledge of the materiality of the statement is not an element of this crime, and the defendant’s mistaken belief that his statement was not material is not a defense, although it may be considered by the court in imposing sentence.
(3) Perjury in the first degree is a class 4 felony.
The penalty for first-degree perjury in Colorado as a class 4 felony is from two to six years in prison and/or a fine ranging from $2,000.00 to $500,000.
Finally, if for some reason, a significant lie is exposed at trial but the defendant is not charged with perjury, it is important to understand that the exposure of that lie in a criminal case invariably damages the defendant’s credibility with the jury, the judge, and his or her lawyer.
Summary and Conclusion – Why Should I Tell My Criminal Defense Lawyer the Truth?
The lawyer-client relationship may be unlike any professional relationship one will experience in life. A lawyer has a “fiduciary duty” to the client. A fiduciary is bound to their client by the highest duty that exists under our laws.
A fiduciary must zealously and aggressively protect the client’s interests above all other competing interests.
The derivation of the term “fiduciary” is from the Latin word “fidere,” which means “to trust.” A fiduciary obligation exists when one person is trusted to provide advice and take action for the benefit of another.
A fiduciary must act, at all times, with scrupulous good faith; must be honest and candid about his dealings; and must always be loyal and make ALL decisions with an eye towards benefiting the person to whom the duty is owed.
Intentionally withholding or omitting key facts obstructs a lawyer’s performance of their fiduciary duty to their client, the duty to, if possible, craft a solid, well-devised criminal defense strategy. Without the facts, all of the facts, good and bad, a lawyer’s strategy and advice may become flawed and ultimately may lead to an unsuccessful result. False assumptions based on false or omitted facts can have disastrous results.
A good prosecutor will always be prepared for trial. To successfully defend a case, the defense lawyer must never walk into the court without knowing every minute detail of the case. When undisclosed facts or false facts relied upon by the criminal defense lawyer in designing their defense emerge during the trial, it is the defendant who is at risk.
Most criminal cases come down to the credibility of key witnesses and evidence supporting or contradicting that testimony. Telling the truth to one’s lawyer is key to making the critically necessary decisions that are demanded at every critical stage of that case.
“A person charged with a crime requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
United States Supreme Court – Powell v. Alabama, 287 U.S. 45, 69 (1932)
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Never stop fighting – never stop believing in yourself and your right to due process of law.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at email@example.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge of Colorado Criminal Law and his 38 plus years of experience in the courtrooms of Colorado may give him the edge you need to properly defend your case.
H. Michael knows how to talk clearly and very directly to his clients, his adversaries, and the Court. He uses his life experience, common sense, and straight talk to help his clients fully understand and make the critical decisions that apply to every Colorado criminal case.
If you are ready to talk, H. Michael stands ready to help.