U.S. Supreme Court Nix v. Whiteside, 475
U.S. 157 (1986) Nix v. Whiteside No. 84-1321 Argued November 5,
1985 Decided February 26,
1986 475
U.S. 157 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus In preparing for his Iowa state court trial on a murder charge,
respondent consistently told his attorney that, although he had not
actually seen a gun in the victim's hand when he stabbed the
victim, he was convinced that the victim had a gun. Respondent's
companions who were present during the stabbing told counsel that
they had not seen a gun, and no gun was found. Counsel advised
respondent that the existence of a gun was not necessary to
establish a claim of self-defense, and that only a reasonable
belief that the victim had a gun nearby was necessary, even though
no gun was actually present. However, during preparation for direct
examination shortly before trial, respondent for the first time
told counsel that he had seen "something metallic" in the victim's
hand. When asked about this, respondent said: "If I don't say I saw
a gun, I'm dead." On respondent's insisting that he would testify
that he saw "something metallic," counsel told him that, if he
testified falsely, it would be counsel's duty to advise the court
that he felt respondent was committing perjury, and that counsel
probably would be allowed to impeach that testimony and would seek
to withdraw from representation if respondent insisted on
committing perjury. Respondent ultimately testified as originally
contemplated, admitting on cross-examination that he had not
actually seen a gun in the victim's hand. After the jury found
respondent guilty, respondent moved for a new trial, claiming that
he had been deprived of a fair trial by counsel's admonitions not
to state that he saw a gun or "something metallic." The court
denied the motion after a hearing, and the Iowa Supreme Court
affirmed the conviction, holding that counsel's actions were not
only permissible, but were required under Iowa law. Respondent then
sought federal habeas corpus relief, alleging that he had been
denied effective assistance of counsel by his attorney's refusal to
allow him to testify as he proposed. The District Court denied
relief, but the Court of Appeals reversed, concluding that an
intent to commit perjury, communicated to counsel, does not alter a
defendant's right to effective assistance of counsel, and that
counsel's threatened violation of his client's confidences violated
the "effective representation" standards set forth in Strickland v. Washington, 466 U.
S. 668 . Page 475 U. S. 158 Held: The Sixth Amendment right of a criminal defendant
to assistance of counsel is not violated when an attorney refuses
to cooperate with the defendant in presenting perjured testimony at
his trial. Pp. 475 U. S.
164 -176.

															(a) Strickland v. Washington, supra, held that, to
obtain relief by way of federal habeas corpus on a claim of a
deprivation of effective assistance of counsel under the Sixth
Amendment, the movant must establish both serious attorney error
and prejudice. The Sixth Amendment inquiry is into whether the
attorney's conduct was "reasonably effective." A court must be
careful not to narrow the wide range of attorney conduct acceptable
under the Sixth Amendment so restrictively as to constitutionalize
particular standards of professional conduct, and thereby intrude
into a state's proper authority to define and apply the standards
of professional conduct applicable to those it admits to practice
in its courts. Pp. 475 U. S.
164 -166.

															(b) Counsel's conduct here fell within the wide range of
professional responses to threatened client perjury acceptable
under the Sixth Amendment. Counsel's duty of loyalty to, and
advocacy of, the defendant's cause is limited to legitimate, lawful
conduct compatible with the very nature of a trial as a search for
truth. Although counsel must take all reasonable lawful means to
attain his client's objectives, counsel is precluded from taking
steps or in any way assisting the client in presenting false
evidence or otherwise violating the law. Moreover, accepted norms
require that a lawyer disclose his client's perjury and frauds upon
the court. Iowa's Code also expressly permits withdrawal from
representation as an appropriate response of an attorney when the
client threatens to commit perjury. Pp. 475 U. S.
166 -171.

															(c) The Court of Appeals' holding is not supported by the
record, since counsel's action, at most, deprived respondent of his
contemplated perjury. Whatever the scope of a constitutional right
to testify, it is elementary that such a right does not extend to
testifying falsely, and the right to counsel includes no right to
have a lawyer who will cooperate with planned perjury. There was no
breach of professional duty in counsel's admonition to respondent
that he would disclose respondent's perjury to the court. Pp. 475 U. S.
171 -175.

															(d) As a matter of law, counsel's conduct here cannot establish
the prejudice required for relief under the Strickland inquiry. The "conflict of interests" involved was one imposed on
the attorney by the client's proposal to commit the crime of
fabricating testimony. This is not the kind of conflict of interest
that would render the representation constitutionally infirm. Pp. 475 U. S.
175 -176.

															744 F.2d 1323, reversed. Page 475 U. S. 159 BURGER, C.J., delivered the opinion of the Court, in which
WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J.,
filed an opinion concurring in the judgment, post, p. 475 U. S. 176 .
BLACKMUN, J., filed an opinion concurring in the judgment, in which
BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 475 U. S. 177 .
STEVENS, J., filed an opinion concurring in the judgment, post, p. 475 U. S.
190 .

															CHIEF JUSTICE BURGER delivered the opinion of the Court.

															We granted certiorari to decide whether the Sixth Amendment
right of a criminal defendant to assistance of counsel is violated
when an attorney refuses to cooperate with the defendant in
presenting perjured testimony at his trial. [ Footnote 1 ] Page 475 U. S. 160 I A Whiteside was convicted of second-degree murder by a jury
verdict which was affirmed by the Iowa courts. The killing took
place on February 8, 1977, in Cedar Rapids, Iowa. Whiteside and two
others went to one Calvin Love's apartment late that night, seeking
marihuana. Love was in bed when Whiteside and his companions
arrived; an argument between Whiteside and Love over the marihuana
ensued. At one point, Love directed his girlfriend to get his
"piece," and at another point got up, then returned to his bed.
According to Whiteside's testimony, Love then started to reach
under his pillow and moved toward Whiteside. Whiteside stabbed Love
in the chest, inflicting a fatal wound.

															Whiteside was charged with murder, and when counsel was
appointed, he objected to the lawyer initially appointed, claiming
that he felt uncomfortable with a lawyer who had formerly been a
prosecutor. Gary L. Robinson was then appointed, and immediately
began an investigation. Whiteside gave him a statement that he had
stabbed Love as the latter "was pulling a pistol from underneath
the pillow on the bed." Upon questioning by Robinson, however,
Whiteside indicated that he had not actually seen a gun, but that
he was convinced that Love had a gun. No pistol was found on the
premises; shortly after the police search following the stabbing,
which had revealed no weapon, the victim's family had removed all
of the victim's possessions from the apartment. Robinson
interviewed Whiteside's companions who were present during the
stabbing, and none had seen a gun during the incident. Robinson
advised Whiteside that the existence of a gun was not necessary to
establish the claim of self-defense, and that only a reasonable
belief that the victim had a gun nearby was necessary, even though
no gun was actually present.

															Until shortly before trial, Whiteside consistently stated to
Robinson that he had not actually seen a gun, but that he was Page 475 U. S. 161 convinced that Love had a gun in his hand. About a week before
trial, during preparation for direct examination, Whiteside for the
first time told Robinson and his associate Donna Paulsen that he
had seen something "metallic" in Love's hand. When asked about
this, Whiteside responded:

															"[I]n Howard Cook's case, there was a gun. If I don't say I saw
a gun, I'm dead."

															Robinson told Whiteside that such testimony would be perjury,
and repeated that it was not necessary to prove that a gun was
available, but only that Whiteside reasonably believed that he was
in danger. On Whiteside's insisting that he would testify that he
saw "something metallic," Robinson told him, according to
Robinson's testimony:

															"[W]e could not allow him to [testify falsely], because that
would be perjury, and, as officers of the court, we would be
suborning perjury if we allowed him to do it; . . . I advised him
that, if he did do that, it would be my duty to advise the Court of
what he was doing, and that I felt he was committing perjury; also,
that I probably would be allowed to attempt to impeach that
particular testimony."

															App. to Pet. for Cert. A-85. Robinson also indicated he would
seek to withdraw from the representation if Whiteside insisted on
committing perjury. [ Footnote
2 ]

															Whiteside testified in his own defense at trial, and stated that
he "knew" that Love had a gun, and that he believed Love was
reaching for a gun, and he had acted swiftly in self-defense. On
cross-examination, he admitted that he had not Page 475 U. S. 162 actually seen a gun in Love's hand. Robinson presented evidence
that Love had been seen with a sawed-off shotgun on other
occasions, that the police search of the apartment may have been
careless, and that the victim's family had removed everything from
the apartment shortly after the crime. Robinson presented this
evidence to show a basis for Whiteside's asserted fear that Love
had a gun.

															The jury returned a verdict of second-degree murder, and
Whiteside moved for a new trial, claiming that he had been deprived
of a fair trial by Robinson's admonitions not to state that he saw
a gun or "something metallic." The trial court held a hearing,
heard testimony by Whiteside and Robinson, and denied the motion.
The trial court made specific findings that the facts were as
related by Robinson.

															The Supreme Court of Iowa affirmed respondent's conviction. State v. Whiteside, 272 N.W.2d 468 (1978). That court held that the right to have counsel present all
appropriate defenses does not extend to using perjury, and that an
attorney's duty to a client does not extend to assisting a client
in committing perjury. Relying on DR 7-102(A)(4) of the Iowa Code
of Professional Responsibility for Lawyers, which expressly
prohibits an attorney from using perjured testimony, and Iowa Code
§ 721.2 (now Iowa Code § 720.3 (1985)), which criminalizes
subornation of perjury, the Iowa court concluded that not only were
Robinson's actions permissible, but were required. The court
commended "both Mr. Robinson and Ms. Paulsen for the high ethical
manner in which this matter was handled." B Whiteside then petitioned for a writ of habeas corpus in the
United States District Court for the Southern District of Iowa. In
that petition, Whiteside alleged that he had been denied effective
assistance of counsel and of his right to present a defense by
Robinson's refusal to allow him to testify as he had proposed. The
District Court denied the writ. Accepting the state trial court's
factual finding that Page 475 U. S. 163 Whiteside's intended testimony would have been perjurious, it
concluded that there could be no grounds for habeas relief, since
there is no constitutional right to present a perjured defense.

															The United States Court of Appeals for the Eighth Circuit
reversed and directed that the writ of habeas corpus be granted. Whiteside v. Scurr, 744 F.2d 1323 (1984). The Court of
Appeals accepted the findings of the trial judge, affirmed by the
Iowa Supreme Court, that trial counsel believed with good cause
that Whiteside would testify falsely, and acknowledged that, under Harris v. New York, 401 U. S. 222 (1971), a criminal defendant's privilege to testify in his own
behalf does not include a right to commit perjury. Nevertheless,
the court reasoned that an intent to commit perjury, communicated
to counsel, does not alter a defendant's right to effective
assistance of counsel, and that Robinson's admonition to Whiteside
that he would inform the court of Whiteside's perjury constituted a
threat to violate the attorney's duty to preserve client
confidences. [ Footnote 3 ]
According to the Court of Appeals, this threatened violation of
client confidences breached the standards of effective
representation set down in Strickland v. Washington, 466 U. S. 668 (1984). The court also concluded that Strickland's prejudice requirement was satisfied by an implication of prejudice
from the conflict between Robinson's duty of loyalty to his client
and his ethical duties. A petition for rehearing en banc was
denied, with Judges Gibson, Ross, Fagg, and Bowman dissenting. Whiteside v. Scurr, 750 F.2d 713 (1984). We granted
certiorari, 471 U.S. 1014 (1985), and we reverse. Page 475 U. S. 164 II A The right of an accused to testify in his defense is of
relatively recent origin. Until the latter part of the preceding
century, criminal defendants in this country, as at common law,
were considered to be disqualified from giving sworn testimony at
their own trial by reason of their interest as a party to the case. See, e.g., Ferguson v. Georgia, 365 U.
S. 570 (1961); R. Morris, Studies in the History of
American Law 59-60 (2d ed.1959). Iowa was among the states that
adhered to this rule of disqualification. State v. Laffer, 38 Iowa 422 (1874).

															By the end of the 19th century, however, the disqualification
was finally abolished by statute in most states and in the federal
courts. Act of Mar. 16, 1878, ch. 37, 20 Stat. 30-31; see Thayer, A Chapter of Legal History in Massachusetts, 9 Harv.L.Rev.
1, 12 (1895). Although this Court has never explicitly held that a
criminal defendant has a due process right to testify in his own
behalf, cases in several Circuits have so held, and the right has
long been assumed. See, e.g., United States v. Curtis, 742
F.2d. 1070, 1076 (CA7 1984); United States v. Bifield, 702
F.2d 342, 349 (CA2), cert. denied, 461 U.S. 931 (1983). We
have also suggested that such a right exists as a corollary to the
Fifth Amendment privilege against compelled testimony, see
Harris v. New York, supra, at 401 U. S. 225 . See also Ferguson, 365 U.S. at 365 U. S.
598 -601 (concurring opinion of Frankfurter, J.); id. at 365 U. S.
601 -603 (concurring opinion of Clark, J.). B In Strickland v. Washington, we held that, to obtain
relief by way of federal habeas corpus on a claim of a deprivation
of effective assistance of counsel under the Sixth Amendment, the
movant must establish both serious attorney error and prejudice. To
show such error, it must be established that the assistance
rendered by counsel was constitutionally deficient Page 475 U. S. 165 in that "counsel made errors so serious that counsel was not
functioning as counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 466 U. S. 687 .
To show prejudice, it must be established that the claimed lapses
in counsel's performance rendered the trial unfair so as to
"undermine confidence in the outcome" of the trial. Id. at 466 U. S.
694 . In Strickland, we acknowledged that the Sixth Amendment
does not require any particular response by counsel to a problem
that may arise. Rather, the Sixth Amendment inquiry is into whether
the attorney's conduct was "reasonably effective." To counteract
the natural tendency to fault an unsuccessful defense, a court
reviewing a claim of ineffective assistance must "indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at 466 U. S. 689 .
In giving shape to the perimeters of this range of reasonable
professional assistance, Strickland mandates that

															"[p]revailing norms of practice, as reflected in American Bar
Association Standards and the like, . . . are guides to determining
what is reasonable, but they are only guides." Id. at 466 U. S.
688 .

															Under the Strickland standard, breach of an ethical
standard does not necessarily make out a denial of the Sixth
Amendment guarantee of assistance of counsel. When examining
attorney conduct, a court must be careful not to narrow the wide
range of conduct acceptable under the Sixth Amendment so
restrictively as to constitutionalize particular standards of
professional conduct, and thereby intrude into the state's proper
authority to define and apply the standards of professional conduct
applicable to those it admits to practice in its courts. In some
future case challenging attorney conduct in the course of a state
court trial, we may need to define with greater precision the
weight to be given to recognized canons of ethics, the standards
established by the state in statutes or professional codes, and the
Sixth Amendment, Page 475 U. S. 166 in defining the proper scope and limits on that conduct. Here,
we need not face that question, since virtually all of the sources
speak with one voice. C We turn next to the question presented: the definition of the
range of "reasonable professional" responses to a criminal
defendant client who informs counsel that he will perjure himself
on the stand. We must determine whether, in this setting,
Robinson's conduct fell within the wide range of professional
responses to threatened client perjury acceptable under the Sixth
Amendment.

															In Strickland, we recognized counsel's duty of loyalty
and his "overarching duty to advocate the defendant's cause." Ibid. Plainly, that duty is limited to legitimate, lawful
conduct compatible with the very nature of a trial as a search for
truth. Although counsel must take all reasonable lawful means to
attain the objectives of the client, counsel is precluded from
taking steps or in any way assisting the client in presenting false
evidence or otherwise violating the law. This principle has
consistently been recognized in most unequivocal terms by
expositors of the norms of professional conduct since the first
Canons of Professional Ethics were adopted by the American Bar
Association in 1908. The 1908 Canon 32 provided:

															"No client, corporate or individual, however powerful, nor any
cause, civil or political, however important, is entitled to
receive, nor should any lawyer render, any service or advice
involving disloyalty to the law whose ministers we are, or
disrespect of the judicial office, which we are bound to uphold, or
corruption of any person or persons exercising a public office or
private trust, or deception or betrayal of the public. . . . He
must . . . observe and advise his client to observe the statute
law. . . . " Page 475 U. S. 167 Of course, this Canon did no more than articulate centuries of
accepted standards of conduct. Similarly, Canon 37, adopted in
1928, explicitly acknowledges, as an exception to the attorney's
duty of confidentiality, a client's announced intention to commit a
crime:

															"The announced intention of a client to commit a crime is not
included within the confidences which [the attorney] is bound to
respect."

															These principles have been carried through to contemporary
codifications [ Footnote 4 ] of
an attorney's professional responsibility. Disciplinary Rule 7-102
of the Model Code of Professional Responsibility (1980), entitled
"Representing a Client Within the Bounds of the Law," provides:

															"(A) In his representation of a client, a lawyer shall not:"

															" * * * *" (4) Knowingly use perjured testimony or false evidence.

															" * * * *" (7) Counsel or assist his client in conduct that the lawyer
knows to be illegal or fraudulent. Page 475 U. S. 168 This provision has been adopted by Iowa, and is binding on all
lawyers who appear in its courts. See Iowa Code of
Professional Responsibility for Lawyers (1985). The more recent
Model Rules of Professional Conduct (1983) similarly admonish
attorneys to obey all laws in the course of representing a
client:

															" RULE 1.2 Scope of Representation"

															" * * * *" "(d) A lawyer shall not counsel a client to engage, or assist a
client, in conduct that the lawyer knows is criminal or fraudulent.
. . ."

															Both the Model Code of Professional Responsibility and the Model
Rules of Professional Conduct also adopt the specific exception
from the attorney-client privilege for disclosure of perjury that
his client intends to commit or has committed. DR 4-101(C)(3)
(intention of client to commit a crime); Rule 3.3 (lawyer has duty
to disclose falsity of evidence even if disclosure compromises
client confidences). Indeed, both the Model Code and the Model
Rules do not merely authorize disclosure by counsel of
client perjury; they require such disclosure. See Rule 3.3(a)(4); DR 7-102(B)(1); Committee on Professional
Ethics and Conduct of Iowa State Bar Assn. v.
Crary, 245 N.W.2d 298 (Iowa 1976).

															These standards confirm that the legal profession has accepted
that an attorney's ethical duty to advance the interests of his
client is limited by an equally solemn duty to comply with the law
and standards of professional conduct; it specifically ensures that
the client may not use false evidence. [ Footnote 5 ] This special duty of an attorney to prevent
and disclose Page 475 U. S. 169 frauds upon the court derives from the recognition that perjury
is as much a crime as tampering with witnesses or jurors by way of
promises and threats, and undermines the administration of justice. See 1 W. Burdick, Law of Crime §§ 293, 300, 318-336
(1946).

															The offense of perjury was a crime recognized at common law, id. at p. 476, and has been made a felony in most states
by statute, including Iowa. Iowa Code § 720.2 (1985). See
generally 4 C. Torcia, Wharton's Criminal Law § 631 (14th
ed.1981). An attorney who aids false testimony by questioning a
witness when perjurious responses can be anticipated risks
prosecution for subornation of perjury under Iowa Code § 720.3
(1985).

															It is universally agreed that, at a minimum, the attorney's
first duty when confronted with a proposal for perjurious testimony
is to attempt to dissuade the client from the unlawful course of
conduct. Model Rules of Professional Conduct, Rule 3.3, Comment;
Wolfram, Client Perjury, 50 S. Cal.L.Rev. 809, 846 (1977). A
statement directly in point is found in the commentary to the Model
Rules of Professional Conduct under the heading "False
Evidence":

															"When false evidence is offered by the client, however, a
conflict may arise between the lawyer's duty to keep the client's
revelations confidential and the duty of candor to the court. Upon
ascertaining that material evidence is false, the lawyer should
seek to persuade the client that the evidence should not be
offered or, if it has been offered, that its false character
should immediately be disclosed."

															Model Rules of Professional Conduct, Rule 3.3, Comment (1983)
(emphasis added). Page 475 U. S. 170 The commentary thus also suggests that an attorney's revelation
of his client's perjury to the court is a professionally
responsible and acceptable response to the conduct of a client who
has actually given perjured testimony. Similarly, the Model Rules
and the commentary, as well as the Code of Professional
Responsibility adopted in Iowa, expressly permit withdrawal from
representation as an appropriate response of an attorney when the
client threatens to commit perjury. Model Rules of Professional
Conduct, Rule 1.16(a)(1), Rule 1.6, Comment (1983); Code of
Professional Responsibility, DR 2-110(B), (C) (1980). Withdrawal of
counsel when this situation arises at trial gives rise to many
difficult questions including possible mistrial and claims of
double jeopardy. [ Footnote
6 ]

															The essence of the brief amicus of the American Bar
Association reviewing practices long accepted by ethical
lawyers Page 475 U. S. 171 is that under no circumstance may a lawyer either advocate or
passively tolerate a client's giving false testimony. This, of
course, is consistent with the governance of trial conduct in what
we have long called "a search for truth." The suggestion sometimes
made that "a lawyer must believe his client, not judge him," in no
sense means a lawyer can honorably be a party to or in any way give
aid to presenting known perjury. D Considering Robinson's representation of respondent in light of
these accepted norms of professional conduct, we discern no failure
to adhere to reasonable professional standards that would in any
sense make out a deprivation of the Sixth Amendment right to
counsel. Whether Robinson's conduct is seen as a successful attempt
to dissuade his client from committing the crime of perjury, or
whether seen as a "threat" to withdraw from representation and
disclose the illegal scheme, Robinson's representation of Whiteside
falls well within accepted standards of professional conduct and
the range of reasonable professional conduct acceptable under Strickland. The Court of Appeals assumed for the purpose of the decision
that Whiteside would have given false testimony had counsel not
intervened; its opinion denying a rehearing en banc states:

															"[W]e presume that appellant would have testified falsely."

															" * * * *" ". . . Counsel's actions prevented [Whiteside] from testifying
falsely. We hold that counsel's action deprived appellant of due
process and effective assistance of counsel."

															" * * * *" "Counsel's actions also impermissibly compromised appellant's
right to testify in his own defense by conditioning continued
representation by counsel and confidentiality Page 475 U. S. 172 upon appellant's restricted testimony."

															750 F.2d at 714-715. While purporting to follow Iowa's highest
court "on all questions of state law," 744 F.2d at 1330, the Court
of Appeals reached its conclusions on the basis of federal
constitutional due process and right to counsel.

															The Court of Appeals' holding that Robinson's "action deprived
[Whiteside] of due process and effective assistance of counsel" is
not supported by the record, since Robinson's action, at most,
deprived Whiteside of his contemplated perjury. Nothing counsel did
in any way undermined Whiteside's claim that he believed the victim
was reaching for a gun. Similarly, the record gives no support for
holding that Robinson's action

															"also impermissibly compromised [Whiteside's] right to testify
in his own defense by conditioning continued representation . . .
and confidentiality upon [Whiteside's] restricted testimony."

															The record in fact shows the contrary: (a) that Whiteside did
testify, and (b) he was "restricted" or restrained only from
testifying falsely and was aided by Robinson in developing the
basis for the fear that Love was reaching for a gun. Robinson
divulged no client communications until he was compelled to do so
in response to Whiteside's post-trial challenge to the quality of
his performance. We see this as a case in which the attorney
successfully dissuaded the client from committing the crime of
perjury.

															Paradoxically, even while accepting the conclusion of the Iowa
trial court that Whiteside's proposed testimony would have been a
criminal act, the Court of Appeals held that Robinson's efforts to
persuade Whiteside not to commit that crime were improper, first,
as forcing an impermissible choice between the right to counsel and
the right to testify; and, second, as compromising client
confidences because of Robinson's threat to disclose the
contemplated perjury. [ Footnote
7 ] Page 475 U. S. 173 Whatever the scope of a constitutional right to testify, it is
elementary that such a right does not extend to testifying falsely. In Harris v. New York, we assumed the
right of an accused to testify "in his own defense, or to refuse to
do so" and went on to hold:

															"[T]hat privilege cannot be construed to include the right to
commit perjury. See United States v. Knox, 396 U. S. 77 (1969); cf. Dennis v. United States, 384 U. S.
855 (1966). Having voluntarily taken the stand,
petitioner was under an obligation to speak truthfully. . . ."

															401 U.S. at 401 U. S. 225 .
In Harris, we held the defendant could be impeached by
prior contrary statements which had been ruled inadmissible under Miranda v. Arizona, 384 U. S. 436 (1966). Harris and other cases make it crystal clear that
there is no right whatever -- constitutional or otherwise -- for a
defendant to use false evidence. See also United States v.
Havens, 446 U. S. 620 , 446 U. S.
626 -627 (1980).

															The paucity of authority on the subject of any such "right" may
be explained by the fact that such a notion has never been
responsibly advanced; the right to counsel includes no right to
have a lawyer who will cooperate with planned perjury. A lawyer who
would so cooperate would be at risk of prosecution for suborning
perjury, and disciplinary proceedings, including suspension or
disbarment.

															Robinson's admonitions to his client can in no sense be said to
have forced respondent into an impermissible choice
between his right to counsel and his right to testify as he
proposed, for there was no permissible choice to testify
falsely. For defense counsel to take steps to persuade a criminal
defendant to testify truthfully, or to withdraw, deprives the
defendant of neither his right to counsel nor the right to Page 475 U. S. 174 testify truthfully. In United States v. Havens, supra, we made clear that "when defendants testify, they must testify
truthfully or suffer the consequences." Id. at 446 U. S. 626 .
When an accused proposes to resort to perjury or to produce false
evidence, one consequence is the risk of withdrawal of counsel.

															On this record, the accused enjoyed continued representation
within the bounds of reasonable professional conduct, and did in
fact exercise his right to testify; at most, he was denied the
right to have the assistance of counsel in the presentation of
false testimony. Similarly, we can discern no breach of
professional duty in Robinson's admonition to respondent that he
would disclose respondent's perjury to the court. The crime of
perjury in this setting is indistinguishable in substance from the
crime of threatening or tampering with a witness or a juror. A
defendant who informed his counsel that he was arranging to bribe
or threaten witnesses or members of the jury would have no "right"
to insist on counsel's assistance or silence. Counsel would not be
limited to advising against that conduct. An attorney's duty of
confidentiality, which totally covers the client's admission of
guilt, does not extend to a client's announced plans to engage in
future criminal conduct. See Clark v. United States, 289 U. S. 1 , 289 U. S. 15 (1933). In short, the responsibility of an ethical lawyer, as an
officer of the court and a key component of a system of justice,
dedicated to a search for truth, is essentially the same whether
the client announces an intention to bribe or threaten witnesses or
jurors or to commit or procure perjury. No system of justice worthy
of the name can tolerate a lesser standard.

															The rule adopted by the Court of Appeals, which seemingly would
require an attorney to remain silent while his client committed
perjury, is wholly incompatible with the established standards of
ethical conduct and the laws of Iowa, and contrary to professional
standards promulgated by that State. The position advocated by
petitioner, on the contrary, Page 475 U. S. 175 is wholly consistent with the Iowa standards of professional
conduct and law, with the overwhelming majority of courts,
[ Footnote 8 ] and with codes of
professional ethics. Since there has been no breach of any
recognized professional duty, it follows that there can be no
deprivation of the right to assistance of counsel under the Strickland standard. E We hold that, as a matter of law, counsel's conduct complained
of here cannot establish the prejudice required for relief under
the second strand of the Strickland inquiry. Although a
defendant need not establish that the attorney's deficient
performance more likely than not altered the outcome in order to
establish prejudice under Strickland, a defendant must
show that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different." 466 U.S. at 466 U. S. 694 .
According to Strickland, "[a] reasonable probability is a
probability sufficient to undermine confidence in the outcome." Ibid. The Strickland Court noted that the
"benchmark" of an ineffective assistance claim is the fairness of
the adversary proceeding, and that, in judging prejudice and the
likelihood of a different outcome, "[a] defendant has no
entitlement to the luck of a lawless decisionmaker." Id. at 466 U. S.
695 .

															Whether he was persuaded or compelled to desist from perjury,
Whiteside has no valid claim that confidence in the result of his
trial has been diminished by his desisting from the contemplated
perjury. Even if we were to assume that Page 475 U. S. 176 the jury might have believed his perjury, it does not follow
that Whiteside was prejudiced.

															In his attempt to evade the prejudice requirement of Strickland, Whiteside relies on cases involving
conflicting loyalties of counsel. In Cuyler v. Sullivan, 446 U. S. 335 (1980), we held that a defendant could obtain relief without
pointing to a specific prejudicial default on the part of his
counsel, provided it is established that the attorney was "actively
represent[ing] conflicting interests." Id. at 446 U. S. 350 .

															Here, there was indeed a "conflict," but of a quite different
kind; it was one imposed on the attorney by the client's proposal
to commit the crime of fabricating testimony without which, as he
put it, "I'm dead." This is not remotely the kind of conflict of
interests dealt with in Cuyler v. Sullivan. Even in that
case, we did not suggest that all multiple representations
necessarily resulted in an active conflict rendering the
representation constitutionally infirm. If a "conflict" between a
client's proposal and counsel's ethical obligation gives rise to a
presumption that counsel's assistance was prejudicially
ineffective, every guilty criminal's conviction would be suspect if
the defendant had sought to obtain an acquittal by illegal means.
Can anyone doubt what practices and problems would be spawned by
such a rule, and what volumes of litigation it would generate?

															Whiteside's attorney treated Whiteside's proposed perjury in
accord with professional standards, and since Whiteside's truthful
testimony could not have prejudiced the result of his trial, the
Court of Appeals was in error to direct the issuance of a writ of
habeas corpus, and must be reversed. Reversed. [ Footnote 1 ]

															Although courts universally condemn an attorney's assisting in
presenting perjury, Courts of Appeals have taken varying approaches
on how to deal with a client's insistence on presenting perjured
testimony. The Seventh Circuit, for example, has held that an
attorney's refusal to call the defendant as a witness did not
render the conviction constitutionally infirm where the refusal to
call the defendant was based on the attorney's belief that the
defendant would commit perjury. United States v. Curtis, 742 F.2d 1070 (1984). The Third Circuit found a violation of the
Sixth Amendment where the attorney could not state any basis for
her belief that defendant's proposed alibi testimony was perjured. United States ex rel. Wilcox v. Johnson, 555 F.2d 115
(1977). See also Lowery v. Cardwell, 575 F.2d 727 (CA9
1978) (withdrawal request in the middle of a bench trial,
immediately following defendant's testimony).

															[ Footnote 2 ]

															Whiteside's version of the events at this pretrial meeting is
considerably more cryptic:

															"Q. And as you went over the questions, did the two of you come
into conflict with regard to whether or not there was a
weapon?"

															"A. I couldn't -- I couldn't say a conflict. But I got the
impression at one time that maybe, if I didn't go along with --
with what was happening, that it was no gun being involved, maybe
that he will pull out of my trial."

															App. to Pet. for Cert. A-70.

															[ Footnote 3 ]

															The Court of Appeals agreed with the District Court's finding
that respondent properly exhausted his claims in state court.
Although respondent had pressed his claim before the Supreme Court
of Iowa as a denial of his due process right to a fair trial, and
not as a denial of his Sixth Amendment right to counsel, the Court
of Appeals accepted the District Court's conclusion that the Sixth
Amendment claim was exhausted, since further proceedings would be
futile.

															[ Footnote 4 ]

															There currently exist two different codifications of uniform
standards of professional conduct. The Model Code of Professional
Responsibility was originally adopted by the American Bar
Association in 1969, and was subsequently adopted (in many cases
with modification) by nearly every state. The more recent Model
Rules of Professional Conduct were adopted by the American Bar
Association in 1983. Since their promulgation by the American Bar
Association, the Model Rules have been adopted by 11 States:
Arizona, Arkansas, Delaware, Minnesota, Missouri, Montana, Nevada,
New Hampshire, New Jersey, North Carolina, and Washington. See 1 ABA/BNA Lawyers' Manual on Professional Conduct 334
(1984-1986) (New Jersey); id. at 446 (Arizona); id. at 855 (Montana, Minnesota); id. at 924
(Missouri); id. at 961 (Delaware, Washington); id. at 1026 (North Carolina); id. at 1127
(Arkansas); 2 id. at 14 (1986) (New Hampshire, Nevada).
Iowa is one of the States that adopted a form of the Model Code of
Professional Responsibility, but has yet to adopt the Model Rules. See Iowa Code of Professional Responsibility for Lawyers
(1985).

															[ Footnote 5 ]

															The brief of amicus American Bar Association, which
supports petitioner, makes this point, referring to the history of
codes of professional conduct which it has promulgated. The
preamble to the most current version of the ethical standards
recognizes the difficult choices that may confront an attorney who
is sensitive to his concurrent duties to his client and to the
legal system:

															"Within the framework of these Rules, many difficult issues of
professional discretion can arise. Such issues must be resolved
through the exercise of sensitive professional and moral judgment
guided by the basic principles underlying the Rules."

															Preamble, Model Rules of Professional Conduct, p. 10 (1983).

															[ Footnote 6 ]

															In the evolution of the contemporary standards promulgated by
the American Bar Association, an early draft reflects a compromise
suggesting that, when the disclosure of intended perjury is made
during the course of trial, when withdrawal of counsel would raise
difficult questions of a mistrial holding, counsel had the option
to let the defendant take the stand but decline to affirmatively
assist the presentation of perjury by traditional direct
examination. Instead, counsel would stand mute while the defendant
undertook to present the false version in narrative form in his own
words, unaided by any direct examination. This conduct was thought
to be a signal at least to the presiding judge that the attorney
considered the testimony to be false and was seeking to
disassociate himself from that course. Additionally, counsel would
not be permitted to discuss the known false testimony in closing
arguments. See ABA Standards for Criminal Justice,
Proposed Standard 4-7.7 (2d ed.1980). Most courts treating the
subject rejected this approach and insisted on a more rigorous
standard, see, e.g., United States v. Curtis, 742 F.2d
1070 (CA7 1984); McKissick v. United States, 379 F.2d 754
(CA5 1967); Dodd v. Florida Bar, 118 So. 2d
17 , 19 (Fla.1960). The Eighth Circuit in this case and the
Ninth Circuit have expressed approval of the "free narrative"
standards. Whiteside v. Scurr, 744 F.2d 1323, 1331 (CA8
1984); Lowery v. Cardwell, 575 F.2d 727 (CA9 1978).

															The Rule finally promulgated in the current Model Rules of
Professional Conduct rejects any participation or passive role
whatever by counsel in allowing perjury to be presented without
challenge.

															[ Footnote 7 ]

															The Court of Appeals also determined that Robinson's efforts to
persuade Whiteside to testify truthfully constituted an
impermissible threat to testify against his own client. We find no
support for a threat to testify against Whiteside while he was
acting as counsel. The record reflects testimony by Robinson that
he had admonished Whiteside that, if he withdrew he "probably would
be allowed to attempt to impeach that particular testimony," if
Whiteside testified falsely. The trial court accepted this version
of the conversation as true.

															[ Footnote 8 ] See United States v. Curtis, 742 F.2d 1070 (CA7 1984); Committee on Professional Ethics v. Crary, 245 N.W.2d 298 (Iowa 1976); State v. Robinson, 290 N.C. 56, 224 S.E.2d
174 (1976); Thornton v. United States, 357
A.2d 429 (D.C.1976); State v. Henderson, 205 Kan. 231, 468 P.2d 136 (1970); McKissick v. United States, 379 F.2d 754 (CA5
1967); In re King, 7 Utah 2d 258, 322 P.2d 1095 (1958); In re Carroll, 244
S.W.2d 474 (Ky.1951); Hinds v. State
Bar, 19 Cal. 2d 87 ,
119 P.2d 134 (1941). Contra, Whiteside v. Scurr, 744 F.2d
1323 (CA8 1984) (case below); Lowery v. Cardwell, 575 F.2d
727 (CA9 1978).

															JUSTICE BRENNAN, concurring in the judgment.

															This Court has no constitutional authority to establish rules of
ethical conduct for lawyers practicing in the state courts. Nor
does the Court enjoy any statutory grant of jurisdiction over legal
ethics. Page 475 U. S. 177 Accordingly, it is not surprising that the Court emphasizes that
it

															"must be careful not to narrow the wide range of conduct
acceptable under the Sixth Amendment so restrictively as to
constitutionalize particular standards of professional conduct and
thereby intrude into the state's proper authority to define and
apply the standards of professional conduct applicable to those it
admits to practice in its courts." Ante at 475 U. S. 165 .
I read this as saying in another way that the Court cannot tell the States or the lawyers in the States how to behave in their
courts unless and until federal rights are violated.

															Unfortunately, the Court seems unable to resist the temptation
of sharing with the legal community its vision of ethical conduct.
But let there be no mistake: the Court's essay regarding what
constitutes the correct response to a criminal client's suggestion
that he will perjure himself is pure discourse without force of
law. As JUSTICE BLACKMUN observes, that issue is a thorny
one, post at 475 U. S.
177 -178, but it is not an issue presented by this case.
Lawyers, judges, bar associations, students, and others should
understand that the problem has not now been "decided."

															I join JUSTICE BLACKMUN's concurrence because I agree that
respondent has failed to prove the kind of prejudice necessary to
make out a claim under Strickland v. Washington, 466 U. S. 668 (1984).

															JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE STEVENS join, concurring in the judgment.

															How a defense attorney ought to act when faced with a client who
intends to commit perjury at trial has long been a controversial
issue. [ Footnote 2/1 ] But I do not
believe that a federal Page 475 U. S. 178 habeas corpus case challenging a state criminal conviction is an
appropriate vehicle for attempting to resolve this thorny problem.
When a defendant argues that he was denied effective assistance of
counsel because his lawyer dissuaded him from committing perjury,
the only question properly presented to this Court is whether the
lawyer's actions deprived the defendant of the fair trial which the
Sixth Amendment is meant to guarantee. Since I believe that the
respondent in this case suffered no injury justifying federal
habeas relief, I concur in the Court's judgment. I On February 7, 1977, Emmanual Charles Whiteside stabbed Calvin
Love to death. At trial, Whiteside claimed self-defense. On direct
examination, he testified that Love's bedroom, where the stabbing
had occurred, was "[v]ery much dark," App. 48, and that he had
stabbed Love during an argument because he believed that Love was
about to attack him with a weapon:

															"Q. Did you think that Calvin had a gun?"

															"A. Most definitely I thought that."

															"Q. Why did you think that?"

															"A. Because of Calvin's reputation, his brother's reputation,
because of the prior conversation that Calvin and I had, I didn't
have no other choice but to think he had a gun. And when he told
his girl friend to give him his piece, I couldn't retreat." Id. at 50. Whiteside's testimony was consistent with
that of other witnesses who testified that the room was dark, and
that Love Page 475 U. S. 179 had asked his girlfriend to get his "piece" (which they all
believed referred to a weapon). See, e.g., id. at 17-18,
20, 36-37, and 42-45. No gun, however, was ever found.

															Whiteside, who had been charged with first-degree murder, was
convicted of second-degree murder, and sentenced to 40 years'
imprisonment. He moved for a new trial, contending that his
court-appointed attorneys, Gary Robinson and Donna Paulsen, had
improperly coerced his testimony. Whiteside now claimed that he had
been a gun, but had been prevented from testifying to this
fact.

															At an evidentiary hearing on this motion, Whiteside testified
that he had told Robinson at their first meeting that he had seen a
weapon in Love's hand. Some weeks later, Robinson informed
Whiteside that the weapon could not be found and, according to
Whiteside, told him to say only that he thought he had seen a gun,
rather than that he in fact had seen one. Whiteside

															"got the impression at one time that maybe if I didn't go along
with -- with what was happening, that it was no gun being involved,
maybe that he will pull out of my trial."

															App. to Pet. for Cert. A70.

															Robinson's testimony contradicted Whiteside's. According to
Robinson, Whiteside did not initially claim to have seen a gun, but
rather claimed only that he was convinced Love had had one. Roughly
a week before the trial, however, in the course of reviewing
Whiteside's testimony, Whiteside "made reference to seeing
something metallic'. . . . I don't think he ever did say a
gun." Id. at A85: "And at the end, Donna asked him about that, because that was
the first time it had ever been mentioned either to her or to
myself. His response to that was, 'in Howard Cook's case, there was
a gun. If I don't say I saw a gun, I'm dead.' I explained to him at
that time that it was not necessary that the gun be physically
present for self-defense, one; two, that to say that would be
perjury on his part, because he had never at any time indicated
that there was a gun . . . ; three, that we could not allow Page 475 U. S. 180 him to do that . . . ; four, I advised him that, if he did do
that, it would be my duty to advise the Court of what he was doing
. . . ; also, that I probably would be allowed to attempt to
impeach that particular testimony. I told him that there was no
need for him to lie about what had happened, that he had a good and
valid defense on the facts as he had related them to us, and we
felt we could present a good self-defense case on the facts he had
stated to us." Ibid. Robinson acknowledged that Whiteside's claim of self-defense
would have been stronger had the gun been found, but explained
that, at trial, "we tried to create a gun," through testimony from
people who had seen Love carrying a gun on other occasions, through
a stipulation that Love had been convicted of possession of a
weapon, and through suggestions made during cross-examination of
the State's witnesses that the initial police search had been too
cursory to discover the weapon, and that Love's girlfriend had
removed it from the apartment prior to a second, more thorough,
search. Id. at A87-A88.

															The trial court rejected Whiteside's motion for a new trial,
"find[ing] the facts to be as testified to by Ms. Paulsen and Mr.
Robinson." App. 57. The Iowa Supreme Court affirmed. State v.
Whiteside, 272 N.W.2d 468 (1978).

															Whiteside then sought federal habeas relief in the United States
District Court for the Southern District of Iowa. The parties
agreed to rest on the record made in the state court proceedings.
Chief Judge Stuart held that the trial judge's factual finding that
Whiteside would have committed perjury had he testified at trial
actually to having seen a gun was fairly supported by the record,
and thus entitled to a presumption of correctness. See 28
U.S.C. § 2254(d). Since Whiteside had no constitutional right to
perjure himself, he had been denied neither a fair trial nor
effective assistance of counsel. App. to Pet. for Cert. A41. Page 475 U. S. 181 The Court of Appeals for the Eighth Circuit reversed. Whiteside v. Scurr, 744 F.2d 1323 (1984). The court
recognized that the issue before it was not whether Robinson had
behaved ethically, [ Footnote 2/2 ]
but rather whether Whiteside had been deprived of effective
assistance of counsel. Id. at 1330. In the Court of
Appeals' view, Robinson had breached the obligations of
confidentiality and zealous advocacy imposed on defense counsel by
the Sixth Amendment. In addition, the Court of Appeals concluded
that Robinson's actions impermissibly compromised Whiteside's
constitutional right to testify in his own behalf by conditioning
continued representation and confidentiality on Whiteside's
limiting his testimony.

															The court recognized that, under Strickland v.
Washington, 466 U. S. 668 (1984), a defendant must normally demonstrate both that his
attorney's behavior was professionally unreasonable and that he was
prejudiced by his attorney's unprofessional behavior. But it noted
that Strickland v. Washington had recognized a "limited"
presumption of prejudice when counsel is burdened by an actual
conflict of interest that adversely affects his performance, see id. at 466 U. S. 692 ,
quoting Cuyler v. Sullivan, 446 U.
S. 335 , 446 U. S. 348 , 446 U. S. 350 (1980). Here, Whiteside had shown that Robinson's obligations under
the Iowa Code of Professional Responsibility conflicted with his
client's wishes, and his threat to testify against Whiteside had
adversely affected Whiteside by "undermin[ing] the fundamental Page 475 U. S. 182 trust between lawyer and client" necessary for effective
representation. 744 F.2d at 1330.

															Petitioner's motion for rehearing en banc was denied by a vote
of 5 to 4. Whiteside v. Scurr, 750 F.2d 713 (CA8 1984). In
dissent, Judge John R. Gibson, joined by Judges Ross, Fagg, and
Bowman, argued that Whiteside had failed to show cognizable
prejudice. Cuyler v. Sullivan was inapposite, both because
finding a conflict of interest required making the untenable
assumption that Whiteside possessed the right to testify falsely
and because Robinson's threat had had no adverse effect on the
trial, since Whiteside testified fully in his defense. Moreover,
the result of the proceeding should not have been different had
Whiteside been permitted to testify as he wished.

															A separate dissent by Judge Fagg, joined by Judges Ross, John R.
Gibson, and Bowman, addressed the performance prong of Strickland. Robinson's admonition to Whiteside to testify
truthfully simply could not be viewed as creating a conflict of
interest; Robinson presented a full and zealous defense at trial;
and, although Robinson's warning to Whiteside may have been
"strident," 750 F.2d at 718, he had communicated with his client in
a manner the client understood. II A The District Court found that the trial judge's statement that
"I find the facts to be as testified to by Ms. Paulsen and Mr.
Robinson" was a factual finding that Whiteside "would have perjured
himself if he had testified at trial that he actually saw a gun in
his victim's hand." App. to Pet. for Cert. A42. This factual
finding by the state court is entitled to a presumption of
correctness under 28 U.S.C. § 2254(d), which Whiteside has not
overcome.

															Respondent has never attempted to rebut the presumption by
claiming that the factfinding procedure employed by Iowa in
considering new trial motions in any sense deprived him of Page 475 U. S. 183 a full and fair hearing or failed to provide a sufficient basis
for denying his motion. [ Footnote
2/3 ] Although respondent's argument to this Court in large part
assumes that the precluded testimony would have been false, see Brief for Respondent 10-11, he contends, first, that
the record does not fairly support the conclusion that he intended
to perjure himself because he claimed in his first written
statement that Love had been pulling a pistol from under a pillow
at the time of the stabbing, see App. 55, and, second,
that whether Robinson had sufficient knowledge to conclude he was
going to commit perjury was a mixed question of law and fact to
which the presumption of correctness does not apply.

															Neither contention overcomes the presumption of correctness due
the state court's finding. First, the trial judge's implicit
decision not to credit the written statement is fairly supported by
Robinson's testimony that the written statement had not been
prepared by Whiteside alone, and that, from the time of their
initial meeting until the week before trial, Whiteside never again
claimed to have seen a gun. See App. to Pet. for Cert.
A78-A79. Second, the finding properly accorded a presumption of
correctness by the courts below was that Whiteside's "proposed
testimony would [have Page 475 U. S. 184 been] deliberately untruthful." State v. Whiteside, 272
N.W.2d at 471. The lower courts did not purport to presume the
correctness of the Iowa Supreme Court's holding concerning the
mixed question respondent identifies -- whether Robinson's response
to Whiteside's proposed testimony deprived Whiteside of effective
representation. B The Court approaches this case as if the
performance-and-prejudice standard requires us in every case to
determine "the perimeters of [the] range of reasonable professional
assistance," ante at 475 U. S. 165 ,
but Strickland v. Washington explicitly contemplates a
different course:

															"Although we have discussed the performance component of an
ineffectiveness claim prior to the prejudice component, there is no
reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order, or even to address both
components of the inquiry if the defendant makes an insufficient
showing on one. In particular, a court need not determine whether
counsel's performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.
. . . If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed."

															466 U.S. at 466 U. S. 697 . See also Hill v. Lockhart, 474 U. S.
52 , 474 U. S. 60 (1985). In this case, respondent has failed to show any legally
cognizable prejudice. Nor, as is discussed below, is this a case in
which prejudice should be presumed.

															The touchstone of a claim of prejudice is an allegation that
counsel's behavior did something "to deprive the defendant of a
fair trial, a trial whose result is reliable." Strickland v.
Washington, 466 U.S. at 466 U. S. 687 .
The only effect Robinson's threat had on Whiteside's trial is that
Whiteside did not Page 475 U. S. 185 testify, falsely, that he saw a gun in Love's hand. [ Footnote 2/4 ] Thus, this Court must ask
whether its confidence in the outcome of Whiteside's trial is in
any way undermined by the knowledge that he refrained from
presenting false testimony. See id. at 466 U. S.
694 .

															This Court long ago noted:

															"All perjured relevant testimony is at war with justice, since
it may produce a judgment not resting on truth. Therefore it cannot
be denied that it tends to defeat the sole ultimate objective of a
trial." In re Michael, 326 U. S. 224 , 326 U. S. 227 (1945). When the Court has been faced with a claim by a defendant
concerning prosecutorial use of such evidence, it has

															"consistently held that a conviction obtained by the knowing use
of perjured testimony is fundamentally unfair, and must be set
aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury"

															(footnote omitted). United States v. Agurs, 427 U. S. 97 , 427 U. S. 103 (1976). See also e.g., Napue v. Illinois, 360 U.
S. 264 , 360 U. S. 269 (1959); Pyle v. Kansas, 317 U. S. 213 , 317 U. S. 216 (1942); Mooney v. Holohan, 294 U.
S. 103 , 294 U. S. 112 (1935). Similarly, the Court has viewed a defendant's use of such
testimony as so antithetical to our system of justice that it has
permitted the prosecution to introduce otherwise inadmissible
evidence to combat it. See, e.g., United States v. Havens, 446 U. S. 620 , 446 U. S.
626 -627 (1980); Oregon v. Hass, 420 U.
S. 714 , 420 U. S.
720 -723 (1975); Harris v. New York, 401 U. S. 222 , 401 U. S.
225 -226 (1971); Walder v. United States, 347 U. S. 62 , 347 U. S. 65 (1954). The proposition that presenting false evidence could
contribute to (or that withholding such evidence could detract
from) the reliability of a criminal trial is simply untenable. Page 475 U. S. 186 It is no doubt true that juries sometimes have acquitted
defendants who should have been convicted, and sometimes have based
their decisions to acquit on the testimony of defendants who lied
on the witness stand. It is also true that the Double Jeopardy
Clause bars the reprosecution of such acquitted defendants,
although on occasion they can be prosecuted for perjury. See,
e.g., United States v. Williams, 341 U. S.
58 , 341 U. S. 63 -65
(1951). But the privilege every criminal defendant has to testify
in his own defense "cannot be construed to include the right to
commit perjury." Harris v. New York, 401 U.S. at 401 U. S. 225 .
[ Footnote 2/5 ] To the extent that
Whiteside's claim rests on the assertion that he would have been
acquitted had he been able to testify falsely, Whiteside claims a
right the law simply does not recognize. "A defendant has no
entitlement to the luck of a lawless decisionmaker, even if a
lawless decision cannot be reviewed." Strickland v.
Washington, 466 U.S. at 466 U. S. 695 .
Since Whiteside was deprived of neither a fair trial nor any of the
specific constitutional Page 475 U. S. 187 rights designed to guarantee a fair trial, he has suffered no
prejudice.

															The Court of Appeals erred in concluding that prejudice should
have been presumed. Strickland v. Washington found such a
presumption appropriate in a case where an attorney labored under
" an actual conflict of interest [that] adversely affected his .
. . performance,'" id. at 466 U. S. 692 ,
quoting Cuyler v. Sullivan, 446 U.S. at 446 U. S. 348 .
In this case, however, no actual conflict existed. I have already
discussed why Whiteside had no right to Robinson's help in
presenting perjured testimony. Moreover, Whiteside has identified
no right to insist that Robinson keep confidential a plan to commit
perjury. See Committee on Professional Ethics and Conduct of
Iowa State Bar Assn. v. Crary, 245 N.W.2d
298 , 306 (Iowa 1976). The prior cases where this Court has
reversed convictions involved conflicts that infringed a
defendant's legitimate interest in vigorous protection of his
constitutional rights. See, e.g., Wood v. Georgia, 450 U. S. 261 , 450 U. S.
268 -271 (1981) (defense attorney paid by defendants'
employer might have pursued employer's interest in litigating a
test case rather than obtaining leniency for his clients by
cooperating with prosecution); Glasser v. United States, 315 U. S. 60 , 315 U. S. 72 -75
(1942) (defense attorney who simultaneously represented two
defendants failed to object to certain potentially inadmissible
evidence or to cross-examine a prosecution witness in an apparent
attempt to minimize one codefendant's guilt). Here, Whiteside had
no legitimate interest that conflicted with Robinson's obligations
not to suborn perjury and to adhere to the Iowa Code of
Professional Responsibility. In addition, the lawyer's interest in not presenting perjured
testimony was entirely consistent with Whiteside's best interest.
If Whiteside had lied on the stand, he would have risked a future
perjury prosecution. Moreover, his testimony would have been
contradicted by the testimony of other eyewitnesses and by the fact
that no gun was ever found. In light of that impeachment, the jury
might have Page 475 U. S. 188 concluded that Whiteside lied as well about his lack of
premeditation, and thus might have convicted him of first-degree
murder. And if the judge believed that Whiteside had lied, he could
have taken Whiteside's perjury into account in setting the
sentence. United States v. Grayson, 438 U. S.
41 , 438 U. S. 52 -54
(1978). [ Footnote 2/6 ] In the face
of these dangers, an attorney could reasonably conclude that
dissuading his client from committing perjury was in the client's
best interest, and comported with standards of professional
responsibility. [ Footnote 2/7 ] In
short, Whiteside failed to show the kind of conflict that poses a
danger to the values of zealous and loyal representation embodied
in the Sixth Amendment. A presumption of prejudice is therefore
unwarranted. C In light of respondent's failure to show any cognizable
prejudice, I see no need to "grade counsel's performance." Strickland v. Washington, 466 U.S. at 466 U. S. 697 .
The only federal issue in this case is whether Robinson's behavior
deprived Whiteside of the effective assistance of counsel; it is
not whether Robinson's behavior conformed to any particular code of
legal ethics.

															Whether an attorney's response to what he sees as a client's
plan to commit perjury violates a defendant's Sixth Amendment
rights may depend on many factors: how certain the attorney is that
the proposed testimony is false, the stage Page 475 U. S. 189 of the proceedings at which the attorney discovers the plan, or
the ways in which the attorney may be able to dissuade his client,
to name just three. The complex interaction of factors, which is
likely to vary from case to case, makes inappropriate a blanket
rule that defense attorneys must reveal, or threaten to reveal, a
client's anticipated perjury to the court. Except in the rarest of
cases, attorneys who adopt "the role of the judge or jury to
determine the facts," United States ex rel. Wilcox v.
Johnson, 565 F.2d 115, 122 (CA3 1977), pose a danger of
depriving their clients of the zealous and loyal advocacy required
by the Sixth Amendment. [ Footnote
2/8 ]

															I therefore am troubled by the Court's implicit adoption of a
set of standards of professional responsibility for attorneys in
state criminal proceedings. See ante at 475 U. S.
168 -171. The States, of course, do have a compelling
interest in the integrity of their criminal trials that can justify
regulating the length to which an attorney may go in seeking his
client's acquittal. But the American Bar Association's implicit
suggestion in its brief amicus curiae that the Court find
that the Association's Model Rules of Professional Conduct should
govern an attorney's responsibilities is addressed to the wrong
audience. It is for the States to decide how attorneys should
conduct themselves in state criminal proceedings, and Page 475 U. S. 190 this Court's responsibility extends only to ensuring that the
restrictions a State enacts do not infringe a defendant's federal
constitutional rights. Thus, I would follow the suggestion made in
the joint brief amici curiae filed by 37 States at the
certiorari stage that we allow the States to maintain their
"differing approaches" to a complex ethical question. Brief for
State of Indiana et al. as Amici Curiae 5. The
signal merit of asking first whether a defendant has shown any
adverse prejudicial effect before inquiring into his attorney's
performance is that it avoids unnecessary federal interference in a
State's regulation of its bar. Because I conclude that the
respondent in this case failed to show such an effect, I join the
Court's judgment that he is not entitled to federal habeas
relief.

															[ Footnote 2/1 ] See, e.g., Callan & David, Professional
Responsibility and the Duty of Confidentiality: Disclosure of
Client Misconduct in an Adversary System, 29 Rutgers L.Rev. 332
(1976); Rieger, Client Perjury: A Proposed Resolution of the
Constitutional and Ethical Issues, 70 Minn.L.Rev. 121 (1985); compare, e.g., Freedman, Professional Responsibility of
the Criminal Defense Lawyer: The Three Hardest Questions, 64
Mich.L.Rev. 1469 (1966), and ABA Standards for Criminal Justice,
Proposed Standard 4-7.7 (2d ed.1980) (approved by the Standing
Committee on Association Standards for Criminal Justice, but not
yet submitted to the House of Delegates), with Noonan, The
Purposes of Advocacy and the Limits of Confidentiality, 64
Mich.L.Rev. 1486 (1966), and ABA Model Rules of Professional
Conduct, Rule 3.3 and comment, at 66-67 (1983).

															[ Footnote 2/2 ]

															The court stated:

															"That question is governed solely by the Iowa Code of
Professional Responsibility, as it was in effect at the time of the
trial in this case, and as it has been authoritatively interpreted
by the Supreme Court of Iowa. The Supreme Court of Iowa is the last
word on all questions of state law, and the Code of Professional
Responsibility is a species of state law."

															744 F.2d at 1330. Thus, the court declined to address the
question whether Robinson's actions were either compelled or
condoned by Iowa law.

															[ Footnote 2/3 ]

															Whiteside's motion for a new trial rested on his recantation of
his testimony at trial. As a matter of Iowa law, when a trial judge
is faced with a motion for a new trial based on a witness'
recantation of his trial testimony, the judge must decide whether
the recantation is believable:

															"The trial court is not required to believe the recantation, but
must make its decision on the basis of the whole trial and the
matters presented on the hearing on the motion. Premised thereon,
if it believes the [post-conviction] statements . . . are false,
and is not reasonably well satisfied that the testimony given by
the witness on the trial was false, it should deny the motion, and
it is not at liberty to shift upon the shoulders of another jury
the responsibility to seek out the truth of that matter." State v. Compiano, 261 Iowa 509, 517, 154 N.W.2d 845 ,
849 (1967). See also, e.g., State v.
Taylor, 287 N.W.2d 576 ,
578 (Iowa 1980); State v. McGhee, 280 N.W.2d 436 ,
442 (Iowa 1979), cert. denied, 444 U.S. 1039 (1980); cf. United States v. Johnson, 327 U.
S. 106 , 327 U. S.
110 -111 (1946).

															[ Footnote 2/4 ]

															This is not to say that a lawyer's threat to reveal his client's
confidences may never have other effects on a defendant's trial. Cf. United States ex rel. Wilcox v. Johnson, 666 F.2d 116
(CA3 1977) (finding a violation of Sixth Amendment when an
attorney's threat to reveal client's purported perjury caused
defendant not to take the stand at all).

															[ Footnote 2/5 ]

															Whiteside was not deprived of the right to testify in his own
defense, since no suggestion has been made that Whiteside's
testimony was restricted in any way beyond the fact that he did not
claim, falsely, to have seen a gun in Love's hand.

															I must confess that I am somewhat puzzled by the Court's
implicit suggestion that whether a defendant has a constitutional
right to testify in his own defense remains an open question. Ante at 475 U. S. 164 .
It is true that, in Ferguson v. Georgia, 365 U.
S. 570 (1961), the Court expressly declined to address
the question of a defendant's constitutional right to testify, but
that was because the case did not properly raise the issue. Id. at 365 U. S. 572 ,
n. 1. Since then, the Court repeatedly has referred to the
existence of such a right. See, e.g., Jones v. Barnes, 463 U. S. 745 , 463 U. S. 751 (1983) (the defendant has the "ultimate authority to make certain
fundamental decisions regarding the case, [such as] . . . whether
to . . . testify in his or her own behalf"); Brooks v.
Tennessee, 406 U. S. 605 , 406 U. S. 612 (1972) ("Whether the defendant is to testify is an important
tactical decision as well as a matter of constitutional right"); Harris v. New York. I cannot imagine that, if we were
presented with a state statute that prohibited a defendant from
testifying at his own trial, we would not rule that it violates
both the Sixth and Fourteenth Amendments, as well as, perhaps, the
Fifth.

															[ Footnote 2/6 ]

															In fact, the State apparently asked the trial court to impose a
sentence of 75 years, see Tr. 4 (Aug. 26, 1977), but the
judge sentenced Whiteside to 40 years' imprisonment instead.

															[ Footnote 2/7 ]

															This is not to say that an attorney's ethical obligations will
never conflict with a defendant's right to effective assistance.
For example, an attorney who has previously represented one of the
State's witnesses has a continuing obligation to that former client
not to reveal confidential information received during the course
of the prior representation. That continuing duty could conflict
with his obligation to his present client, the defendant, to
cross-examine the State's witnesses zealously. See Lowenthal, Successive Representation by Criminal Lawyers, 93 Yale
L.J. 1 (1983).

															[ Footnote 2/8 ]

															A comparison of this case with Wilcox is illustrative.
Here, Robinson testified in detail to the factors that led him to
conclude that respondent's assertion he had seen a gun was false. See, e.g., Tr. 38-39, 43, 59 (July 29, 1977). The Iowa
Supreme Court found "good cause" and "strong support" for
Robinson's conclusion. State v. Whiteside, 272 N.W.2d 468 ,
471 (1978). Moreover, Robinson gave credence to those parts of
Whiteside's account which, although he found them implausible and
unsubstantiated, were not clearly false. See Tr. 52-53
(July 29, 1977). By contrast, in Wilcox, where defense
counsel actually informed the judge that she believed her client
intended to lie and where her threat to withdraw in the middle of
the trial led the defendant not to take the stand at all, the Court
of Appeals found "no evidence on the record of this case indicating
that Mr. Wilcox intended to perjure himself," and characterized
counsel's beliefs as "private conjectures about the guilt or
innocence of [her] client." 555 F.2d at 122.

															JUSTICE STEVENS, concurring in the judgment.

															Justice Holmes taught us that a word is but the skin of a living
thought. A "fact" may also have a life of its own. From the
perspective of an appellate judge, after a case has been tried and
the evidence has been sifted by another judge, a particular fact
may be as clear and certain as a piece of crystal or a small
diamond. A trial lawyer, however, must often deal with mixtures of
sand and clay. Even a pebble that seems clear enough at first
glance may take on a different hue in a handful of gravel.

															As we view this case, it appears perfectly clear that respondent
intended to commit perjury, that his lawyer knew it, and that the
lawyer had a duty -- both to the court and to his client, for
perjured testimony can ruin an otherwise meritorious case -- to
take extreme measures to prevent the perjury from occurring. The
lawyer was successful and, from our unanimous and remote
perspective, it is now pellucidly clear that the client suffered no
"legally cognizable prejudice."

															Nevertheless, beneath the surface of this case, there are areas
of uncertainty that cannot be resolved today. A lawyer's certainty
that a change in his client's recollection is a Page 475 U. S. 191 harbinger of intended perjury -- as well as judicial review of
such apparent certainty -- should be tempered by the realization
that, after reflection, the most honest witness may recall (or
sincerely believe he recalls) details that he previously
overlooked. Similarly, the post-trial review of a lawyer's pretrial
threat to expose perjury that had not yet been committed -- and,
indeed, may have been prevented by the threat -- is by no means the
same as review of the way in which such a threat may actually have
been carried out. Thus, one can be convinced -- as I am -- that
this lawyer's actions were a proper way to provide his client with
effective representation without confronting the much more
difficult questions of what a lawyer must, should, or may do after
his client has given testimony that the lawyer does not believe.
The answer to such questions may well be colored by the particular
circumstances attending the actual event and its aftermath.

															Because JUSTICE BLACKMUN has preserved such questions for
another day, and because I do not understand him to imply any
adverse criticism of this lawyer's representation of his client, I
join his opinion concurring in the judgment.

Summary:
In Nix v. Whiteside, the United States Supreme Court held that a criminal defendant's Sixth Amendment right to assistance of counsel is not violated when their attorney refuses to cooperate with them in presenting perjured testimony at trial. The Court found that an attorney's refusal to present perjured testimony is not a violation of the defendant's rights and does not constitute ineffective assistance of counsel.

In this case, the defendant, Whiteside, intended to testify that he saw "something metallic" in the victim's hand during the stabbing, even though he had previously stated that he had not seen a gun. Whiteside's attorney advised him against committing perjury and threatened to impeach his testimony and withdraw from the case if he insisted on doing so. Whiteside ultimately testified truthfully, but argued on appeal that his attorney's actions deprived him of a fair trial.

The Court's decision affirmed that an attorney's primary duty is to the court and upholding the law, and that presenting false testimony would violate this duty. The Court also emphasized the potential harm of perjured testimony to a defendant's case and the importance of an attorney's duty to prevent it.

Justice Stevens concurred in the judgment, acknowledging the potential complexities and uncertainties in similar cases, particularly regarding an attorney's actions after a client has given potentially perjured testimony.