Judicial District of Waterbury


      Criminal; Attorneys; Professional Conduct; Whether the Defendant's Constitutional Rights to Due Process and a Fair Trial were Violated by the Procedures Used by the Trial Court upon Defense Counsel's Invocation of Rule 3.3 of the Rules of Professional Conduct, Which Prohibits Attorneys from Knowingly Presenting False Evidence.  At his trial for first degree assault and other crimes, the defendant told his attorney that he wished to testify.  Suspecting that his client might testify falsely, the attorney informed the court that he was required by rule 3.3 of the Rules of Professional Conduct to request that the court allow the defendant to testify in the narrative.  Rule 3.3 provides, in part, that "[a] lawyer shall not knowingly . . . [o]ffer evidence that the lawyer knows to be false. . . ."  Defense counsel, the prosecutor and the judge met in chambers without the defendant present.  At the meeting, the attorney stated that he was unable ethically to call his client as a witness. The trial court subsequently ruled that the defendant could testify in the narrative.  The court then informed the defendant, among other things, that (1) he had a right not to testify; (2) the jury might view his narrative testimony differently than the testimony of the other witnesses who were questioned by the attorneys; (3) he was waiving any claim that defense counsel's failure to question him constituted ineffective assistance of counsel; (4) defense counsel would not be able to object during the state's cross-examination of him; and (5) defense counsel would not be permitted to present any argument concerning the defendant's narrative testimony.  The defendant subsequently confirmed, at a canvass by the court, that he had had enough time to discuss the matter with his lawyer and that his decision to waive his right to remain silent was knowing and voluntary.  The defendant then presented his testimony.  After trial, the jury found the defendant guilty of all charges.  On appeal from his convictions, the defendant argues that he was denied his rights to due process and a fair trial in several ways.  He claims that the trial court improperly excluded him from a critical stage of the proceedings when defense counsel, the prosecutor and the court discussed defense counsel's invocation of rule 3.3 without his being present.  The defendant also claims that the trial court improperly failed to conduct any inquiry on the record to determine that defense counsel had sufficient knowledge that the defendant was going to commit perjury to meet the standard for invoking rule 3.3, which he argues is clear and convincing evidence.  He further argues that the trial court's off the record inquiry should have been conducted without the prosecutor present.  The defendant also contends that the trial court's prohibition of defense counsel from objecting during the state's cross-examination of him and from presenting argument on his testimony that he knew was not false were excessive.