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The Ethics of Criminal Defense

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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?

10 Comments

It seems that the defense's zealous representation of their client is bounded only by one's ability to sleep at night.

With most defendants represented by court-appointed counsel, the taxpayers fund this perversion.

Okay, so I'll take the bait, since I assume you know this already: the more-or-less standard answer to your question is that there is something to be valued in a criminal justice process in which the prosecution is put to their proof. And the exception "except where we know the person is guilty" would swallow the rule.

There might be more than one way to put the prosecution to their proof, of course, of which our adversarial system is only one. Or, you might debate whether there is value or not in systematically requiring that the prosecution be forced to give their proof. But if you do accept the value of the process, and if you accept that our adversarial system--(especially) with its hard-charging defense attorneys--answers to the demands of that system, then you have some reason to excuse defense attorneys their so-called ethical shortcomings.

Mr. Young:

"...there is something to be valued in a criminal justice process in which the prosecution is put to their proof."


But the purpose of putting the prosecution to its proof is to insure that the innocent are exonerated and the guilty convicted. How is that purpose advanced by counsel's behavior as described in the hypothetical?


In any event, the prosecution DID put on its proof, that being (in part) an eyewitness who saw what happened and told the truth about it. How did the prosecution shortchange its obligations? By having a 70 year-old witness instead of a 30 year-old one -- one against whom a similar sleazy cross examination would have fallen flat?


"[I]f you do accept the value of the process, and if you accept that our adversarial system--(especially) with its hard-charging defense attorneys--answers to the demands of that system, then you have some reason to excuse defense attorneys their so-called ethical shortcomings."


When I was growing up, my parents were pretty clear that to intentionally mislead someone was the functional, and moral, equivalent of lying. Do you disagree with that? Do you think lawyers should be able to get away what any teenager would be grounded for a month for doing?


I have no problem with defense counsel being "hard charging." I do have a problem with intentional deceit. To say that we should accept flaws in the process in the name of advancing the process seems odd to me.


More generally, your answer seems gossamer and elliptical. I posed a specific question about a specific (though hypothetical) case, and the answer says virtually nothing about the case and instead is all about "process." Indeed, in a two-paragraph response, you use the words "process" and "system" five times. But a process must be tested by specifics and against its ultimate purpose. With all respect, I believe your answer falls short on that score.


Suppose, as a result of defense counsel's deceitful but effetive cross examination, the defendant is acquitted and does it again (robbery is not a crime with a zero recidivism rate). Except this time, he doesn't fire past the teller's head. He fires into it.


Does counsel have any responsibility there? Or does he just go out for a cup of coffee? It's all well and good to talk about the price we pay to maintain the process, as long as the "we" turns out to be somebody else. What should be said to the teller now clinging to her life in the ICU? "Sorry about that, lady, somebody had to pay the price for the system, and you drew the short straw."


Is that the way a criminal "justice" system should work? Wouldn't the plain truth do better?

I was elliptical, but I was not gossamer.(!) I was elliptical because I thought a just-so story was a good place to start in answer to your question. But, since you insist, to flesh things out a bit more:

1) How is your hypothetical defense attorney misleading anyone? He is showing that the 70-year-old witness has not made a reliable identification; and, in fact, given her cognitive abilities and the situation as specified in your hypo, she hasn't. It's not enough here that her identification in fact is correct, because a single correct identification simply doesn't, ipso facto, make someone a reliable witness.

2) So, given that the 70-year-old woman is not a reliable witness (or at least given that there is some extent to which her reliability may appropriately be questioned), why should the prosecution be allowed to pretend otherwise to prove its case? Arguably, it is the prosecution which is attempting to mislead the jury here by presenting a witness as a stronger and more reliable witness than she is in fact.

3) At the end of the day, you either do or do not want a criminal justice system in which conviction requires a threshhold adequacy of evidence in support of conviction. If you do want this system, then there is nothing to object to where a defense attorney shows that some piece of evidence is less good than the prosecution would make it out to be. Where this is all that is going on, it seriously miscasts thing to say that the defense attorney is being dishonest or misleading the jury; he is merely showing the evidence for what it's worth.

Now, maybe you want to argue about the sort of evidence which ought to be admitted, or the way in which the evidence ought to be examined, or whether there should be a rule requiring a defense attorney to reveal the confessions of his client, or whether a defense attorney deserves some blame (as a person) for relishing the acquittal of his guilty client, or even whether we should have the systemic commitments we do. But all of that is besides the point here. Your hypo and post amounts to proposing the rule that defense attorneys commit an ethical lapse when pointing up the inadequacy of the prosecution's evidence where they know that their client is guilty. And maybe there should be a rule on this point after all; but, where there is no such rule, defense attorneys don't deserve the ethical blame you deliver. They simply are not lying or deceiving in any relevant sense.

How do we design a rule (and a means to determine whether such rule has been violated) that limits the ability of defense attorneys to slash a prosecution witness' ability to recall when they know that the witness accurately recalls the events?

A similar permutation arose in the Van Dam case. As many know, a theory of the defense was that one of the swinger friends of the Van Dams killed Danielle. Defense counsel advocated that possibility to the jury. That was an out and out lie because they knew that the scenario was untrue.

Perhaps I should've said - I was "elliptical" in the sense of leaving stuff out, not in the sense of reasoning circularly.

Mr. Young:

"How is your hypothetical defense attorney misleading anyone?"

By suggeting a story he knows is true might not be. Indeed, I think that's the definition of "misleading."

"He is showing that the 70-year-old witness has not made a reliable identification; and, in fact, given her cognitive abilities and the situation as specified in your hypo, she hasn't."

When he knows it's true, its reliability in the abstract is irrelevant. You would be outraged, and properly so, if an innocent defendant were convicted on the basis of evidence that was reliable in the abstract but untrue in the particular case. You would be especially outraged if the prosecutor were anywhere near pulling such a manuever.

"It's not enough here that her identification in fact is correct, because a single correct identification simply doesn't, ipso facto, make someone a reliable witness."

Same mistake, differntly worded. This case is not about the general reliability of older witnesses, or those who wear glasses. It's about whether Mr. Jones ran from the bank with a sack of loot he just stole, using a pistol. He did, she saw it, and counsel knows it. To try and put over a different story is deceit.

"So, given that the 70-year-old woman is not a reliable witness (or at least given that there is some extent to which her reliability may appropriately be questioned), why should the prosecution be allowed to pretend otherwise to prove its case?"

What is the prosecution "pretending?" That the lady saw what she saw? That's a very odd sort of pretense. That she's telling the truth? But she IS telling the truth. And, again, you're using "reliability" as the test when, given counsel's knowledge of her truthfulness IN THIS CASE, it's not a test, it's a stunt.

"Arguably, it is the prosecution which is attempting to mislead the jury here by presenting a witness as a stronger and more reliable witness than she is in fact."

This is where the defense bar heads to Never-Never Land. What did the prosecution hide? That she's 70? That she wears glasses? All that is right there in front of the jury -- an odd way to "hide" something.

Meanwhile, defense counsel is trying to get the jury to doubt a story that -- I agree -- might be quesionable IN ANOTHER CASE on account of the witness's age or percipient ability, but that he knows in this case IS TRUE.

At all events, I am called away just now, but will continue later. I appreciate your willingness to engage on this quite important subject.

I think it's a misdescription (although a tempting one from one point of view) to say that the defense attorney falsely suggests his client's innocence by a rigorous cross of the old lady; I think it's better to say he's suggesting, truthfully, that one particular piece of evidence (the reliability of the old lady's eyewitness testimony) is not worth everything the prosecution might like the jury to think. And, as the piece of evidence it is (rather than- as a proxy for a particular conclusion about the defendant's guilt), this is surely right: the evidence is not worth what the prosecution suggests, if it meant to suggest (as I took your hypo to) that an old lady with vision and memory problems should be generally relied upon to make identifications of the sort she has made here. (And if such an old lady in such a context should not be generally relied upon in such a context, then why is her testimony being offered at all? I think you would be badly wrong to suppose that the old lady's eyewitness testimony counts the same whatever her general status as a reliable witness.) Qua evidence, the old lady's testimony has the character it has independent of the truth of the proposition for which it purports to be evidence. So, the rigorous cross by the defense attorney shows us something about the character of the evidence, and that is it's true point.

However- and this is where the temptation to your way of (mis)describing the situation comes in-- it happens to be the case that showing the character of the evidence for its true worth will tend to create a (false) idea of the defendant's innocence in the mind of the jury. Imagining that the defense attorney has the goal of acquiting his client, we might imagine that our defense attorney welcomes this false idea in the mind of the jury. And, imagining the defense attorney celebrating the fact that the jury had a false idea, we object.

But, as objectionable as this attitude might be, it's not a necessary one for defense attorneys. The defense attorney might simply celebrate that, in putting the prosecution to their proof by helping the jury to see the true worth of the prosecution's evidence, he has vindicated a morally acceptable system of evidence-based conviction.

Now, maybe, as you suggest, the defense attorney shouldn't attempt to show evidence for its true worth where he knows his client his guilty, but such a rule has nothing to do with his honesty (since, given the proper description of the situation, he's not wrongfully misleading anyone). Such a rule does probably have to do with whether you want a system of evidence-based conviction.

I wonder how you would feel if, after the rigorous cross-examination, the defense attorney then himself took the stand and said, "By the way, jury, the defendant admitted to me that he committed this crime." (Call this the Big Reveal.) If your felt indignation at the "dishonesty" of the defense attorney would evaporate where the Grand Cross was followed by the Big Reveal, then the Grand Cross didn't constitute dishonesty on his part after all, despite yourself; it was something else you objected to-- perhaps a system which requires evidence for conviction, or perhaps a system which privileges some evidence absolutely from discovery (confessions to ones attorney). For the sake of this discussion, keep in mind that I'm open to requiring the Big Reveal, after all; my defense of your accused defense attorney amounts to saying that he is not necessarily dishonest for having shown the true worth of some particular piece of evidence, however it is that a jury will take such a showing.

Incidentally, would you view any defense of a criminal known to be guilty by his attorney as unethical, since any attempt at a defense would just be (in your view) an attempt to "suggest" the possible truth of a known-to-be-false story? I'm open in principle to a discussion of such a "no defenses for guilty people" rule, but I don't think you've shown the dishonesty of the defense attorney in your hypo for all that.

Or maybe you just think that we shouldn't particularly care about examining evidence closely where it is known that the defendant is guilty. I suppose that's another possible rule, maybe a good one even. But even that doesn't make a defense attorney necessarily dishonest for insisting on the close examination of evidence; at worst, it means he is mistaken in thinking that there is some good served in this exercise (like the good of vindicating a general evidence-based system).

Several things. The first is in the original post: "it should be a search for the truth, period." This is interesting because so much of what is the "truth" rests on the interpretation of the events. And when it comes down to something of an eyewitness account, I think you're giving too much clout to the witness e.g. there have been countless cases where eyewitness accounts have been used to purposefully mislead. There is absolutely no moral qualm in pointing out the unreliability of eyewitnesses. And I mean this for any age, any abillitied person.

But for this specific case, I don't think the problem in the case as outlined is that the witness is reliable or unreliable, it's that the defense knows his client is guilty and tries to get him acquitted. I agree, this is can be considered a large problem if the defense succeeds.

But there are some problems to the rationale that there is something done immorally by the defense by "misleading" the jury. The first is to assume that misleading someone from the "truth" is immoral. What if the truth is that I'm harboring Jews from the Nazis during WWII? I certainly would want to mislead nearly everyone from that truth.

I know that's a different case, but it's important to note that "misleading" has different uses as it's applied. What makes "misleading"s use in your case something immoral? Maybe because the truth is an occurrence we can "all" agree is detrimental to society? But this can easily be explained away by a general outlook on life: (would non-violent make it easier to swallow?) crimes are products of society as much are laws and the enforcement of laws. Maybe the defense knows that the punishment for this crime will do nothing to dissuade the actual criminal from committing it again (see what happened in Sacramento when convicts were released early: did our punishment system in any way deter them from committing crimes?). These outlooks, if the defense holds them, certainly seem to me to exonerate him from any blame we as a society would like to put on him.

It's also important to realize that if the defense has no obligation to protecting their clients, our entire system becomes liable. What if the criminal isn't "really" guilty of anything, but because he's scared that his lawyer will turn him in, he doesn't give information that would exonerate him? That's as much of a problem as having to protect someone guilty. Which do we want more?

But back to the particular, because the particular is as important as the general. It's always seemed odd to me, too. I can't really think of any justification for it aside from the general. But maybe there's just a confusion of terms, something in our phrasing that is misapplied. Or maybe not. Maybe in certain, very specific cases, the defense should "throw" the case. Someone made the point that court appointed lawyers let loose criminals on the tax payers dime. I think this is a bit extreme. Most appointed lawyers aren't really trying that hard. What should we do if we know we're fighting for the release of someone we know is guilty?

I think we remember that no one has to self incriminate. This helps ward off coercion, which is nice. (How many times have people confessed to something they didn't do under duress?) It also allows for the defense to present a case, which is in no way "misleading" because he doesn't say anything about the witness being "wrong," only that there is room for reasonable doubt. I like that reasonable doubt clause. It makes me feel protected. In the specific case, I really do think nothing "wrong" has happened because at the end of the day, our entire judicial system is just that: a "system." You can't really change just one thing about it without compromising a lot of other factors. It makes it a pain, but unless there's somethign better, what can we do?

But let it be known: I think there must be something better, but we don't have the means to implement it. I can link to it later, but I agree with an article I recently read that asserts we have no moral authority in the first place to punish. (This is based on a Kantian application of the right to punish with a Marxist view of applicability.) Because I think we have no real moral backing when it comes to punishing (in an applicable sense), I don't really see the problem in criminals getting off the hook. I qualify: this is a Marxist framework which I "generally" agree with, and I know a lot of people wouldn't necessarily buy that.

Good thoughts though, and I only hope I contributed as much as I took away.

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