Nix v. Whiteside
Citation: 475 U.S. 157 (U.S. Supreme Court, 1986)
Facts
Emmanuel Whiteside was charged with murder. He told his attorney, Gary Robinson, that he intended to testify that he saw “something metallic” in the victim’s hand — even though he had previously told Robinson he had not actually seen anything metallic but felt he needed to say so to establish self-defense. Robinson warned Whiteside that he would withdraw from representation, inform the court, and possibly report to the bar if Whiteside testified falsely. Whiteside testified truthfully and was convicted. He later argued Robinson’s threatened disclosure denied him effective assistance of counsel.
Issue
Does an attorney’s threat to disclose a client’s intended perjury and refusal to assist in presenting false testimony constitute a violation of the client’s Sixth Amendment right to effective assistance of counsel?
Holding
The Supreme Court unanimously held that Whiteside’s Sixth Amendment right to effective assistance was not violated. An attorney has no duty — indeed, has an obligation not — to assist a client in presenting false testimony. The right to effective assistance does not include the right to have an attorney facilitate perjury.
Rule
The Sixth Amendment right to effective assistance of counsel does not encompass the right to have counsel assist in presenting perjured testimony. An attorney who refuses to suborn perjury, threatens to withdraw, or threatens to disclose the client’s intent to lie to the court does not provide constitutionally deficient performance. The duties of loyalty and confidentiality yield to the attorney’s ethical duty of candor to the tribunal and the prohibition on assisting fraud.
Significance
Nix v. Whiteside is the Supreme Court’s leading pronouncement on the tension between an attorney’s duty of loyalty to the client and the duty of candor to the tribunal. It establishes that attorneys are not only permitted but ethically required to refuse to assist perjury, and that doing so cannot form the basis of an ineffective assistance claim. The case is paired with Model Rule 3.3 (Candor Toward the Tribunal) in professional responsibility courses and raises challenging questions about what an attorney must or may do when a client announces an intent to testify falsely.