Litigation

Cal. Litig. 2016, Volume 29, Number 2

Sweet Little Lies

By Jacob Glucksman

It’s every criminal defense attorney’s worst nightmare — you’ve just wrapped your case with a nice bow and ribbon, spent long hours and late nights preparing closing arguments, dissected every bit and piece of evidence that has been presented throughout a bitter and treacherous trial — when your client leans over and whispers, "I want to testify." Suddenly your heart begins to race, the room spins, and adrenaline rushes through your veins. Anger and confusion all at once. For lawyers who operate by virtue of strategic planning, reason, and order, this is not how things are supposed to go.

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This happened to me a couple years ago when my client indicated that he wished to testify just as we were wrapping up our case. I had neatly painted an abstract picture of the night in question and left a lot of reasonable doubt for the jury to consider. How could it have been him when the prosecution’s own video surveillance and cell phone records clearly show that it was someone else? We had ’em right were we wanted ’em. My client, however, wanted to take it one step further and present alibi evidence that he was somewhere else at the time. As we talked it over, back in the holding cell area, I felt my eyebrows raise and face crinkle as he began to tell me his version of where he was that fateful night. I had represented this young man for well over a year and he chose to tell me this now? I listened with great skepticism and questioned him as if I were the prosecutor. It became readily apparent that he wasn’t just telling me a story, he was flat out lying to me. I faced a real conundrum. How could I balance my client’s interests and confidences with my ethical obligations as an attorney?

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