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Nix v. Whiteside

Citation. Nix v. Whiteside, 475 U.S. 157, 106 S. Ct. 988, 89 L. Ed. 2d 123, 54 U.S.L.W. 4194 (U.S. Feb. 26, 1986)
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Brief Fact Summary.

Whiteside (Defendant) argued that his counsel’s refusal to allow him to commit perjury denied him his right to counsel.

Synopsis of Rule of Law.

A criminal defendant is not denied the right to counsel if his counsel will not let him commit perjury


An altercation involving Whiteside (Defendant) resulted in the stabbing death of another.  Before testifying, Defendant told his attorney that he planned to state that he had seen a gun in the decedent’s hand, even though previously he had stated the opposite.  The attorney informed Defendant he would be committing perjury to do so, which he could not allow.  The attorney told Defendant that if he testified falsely, the attorney would inform the court of Defendant’s perjury. Defendant did not testify falsely, and he was convicted of murder.  He appealed, arguing that counsel’s threats to expose his perjury constituted a denial of counsel under the Sixth Amendment.  This conviction was affirmed.  Whiteside (Defendant) petitioned for habeas corpus in the district court.  This was denied.  The court of appeals reversed, agreeing with Whiteside’s (Defendant) contention.  The Supreme Court granted review.


Is a criminal defendant denied the right to counsel if his counsel will not let him commit perjury?



(Burger, C.J.)  No.  A criminal defendant is not denied the right to counsel if his counsel will not let him commit perjury.  The Sixth Amendment’s right to counsel clause is not reduced unless counsel is so ineffective as not to have been functioning as counsel.  It is the duty of the counsel to take all lawful measure to exonerate his client.  However, counsel does not have the right to violate the law or to assist others in doing so.  In addition, DR 7-102 of the ABA Code of Professional Responsibility prohibits an attorney from knowingly using perjured testimony or false evidence.  Because counsel may not assist in perjury, it can hardly be considered ineffectiveness when he refuses to do so.  In this case, the only basis for Defendant’s argument regarding ineffectiveness was the refusal to allow him to perjure himself, and therefore no Sixth Amendment violation occurred.  Reversed


(Brennan, J.)  The Court does not have a right to inject its views of ethical conduct into matters of state jurisdiction.  The underlying case was state, not federal, so the Court’s inquiries into legal ethics were not appropriate

(Blackmun, J.)  Whiteside’s (Defendant) argument is that he would have been acquitted if he had been allowed to testify falsely.  The answer to this is that the prevention of perjury can never be the basis for a conclusion that the trial was unfair, and therefore a defendant can never claim prejudice because of such prevention


It has never been affirmatively held that an accused has an absolute right to testify on his own behalf.  In fact, at one time, an accused was positively prohibited from such testimony.  While not expressly approving such a right, the Court here simply noted in passing that such a right is universally recognized.

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