Much is made of prosecutorial misconduct. For the most part, there can be little legitimate objection to that. Prosecutors are public servants wielding considerable power, and should expect and receive scrutiny. Unlike others involved in litigation, prosecutors cannot view the case as a "game" with "moves." It should be a search for truth, period.
But where is the scrutiny of the ethics of criminal defense? Where does the truth fit in? I was recently debating this topic on Doug Berman's Sentencing Law and Policy. I posed this hypothetical:
Mr. Jones robbed the bank of a bag full of dough, using a pistol, which he fired past a teller's head to make sure everyone was paying attention. He employs defense counsel to represent him. In preparation for trial, he tells counsel that, in fact, he did it (he needed the money to pay off his coke dealer, who otherwise had threatened to shoot him).
One of the government's important witnesses is Mrs. Smith, a slightly slow 70 year-old lady with glasses. Mrs. Smith testifies that she saw Jones running from the bank with a sack full of loot in one hand and a pistol in the other. Defense counsel knows this is true (his client told him), but starts a rapid-fire cross examination of Mrs. Smith about whether she was sure she was wearing her glasses, whether she's sure it was a pistol and not a cell phone, whether she was really close enough to be certain of her identification (she was across the street), whether she gets home care in light of her occasional forgetfulness, etc., etc. By the time all this finishes 45 minutes later, the poor old woman looks and sounds confused, hardly someone the jury could put a lot of trust in. This is exactly what counsel wanted.
Only one thing: Her memory was correct and her testimony truthful, and he knows it.
I'm pretty sure that under existing canons of ethics, counsel's behavior, though knowingly and intentionally misleading, was proper. My question, upon which I hope commenters will shed some light, is: Should it be? To what extent should standards of honesty with the tribunal supersede the client's interest?