[4.] Criminal Defense and Honesty.
Monroe Freedman is Professor of Law at Hofstra University and one of the best-known and widely respected scholars of law and legal ethics in the world. Our reading for this section is his classic article “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions.”
Freedman begins as follows:
In almost any area of legal counseling and advocacy, the lawyer may be faced with the dilemma of either betraying the confidential communications of his client or participating to some extent in the purposeful deception of the court. This problem is nowhere more acute than in the practice of criminal law, particularly in the representation of the indigent accused. (1469, emphases added)
Freedman is considering a potential conflict faced by a criminal defense attorney, that between breaching lawyer/client confidentiality and participating in the deception of the court. [This is somewhat, although not exactly, similar to the conflict faced by the lawyers in the Lake Pleasant Bodies Case we discussed previously.]
His view is that the potential for such a conflict is especially strong in cases where the accused is indigent (impoverished) and in which the defense attorney is a public defender, one who has been appointed by the court to defend an accused person who cannot afford to pay for his own defense.
Freedman mentions advocacy, so before looking more closely at his article, it would be wise to get clear on just what that means, and especially on how it differs from inquiry.
[4.1.] Inquiry vs. Advocacy.
The business of a court may be inquiry (the pursuit of truth), but the business of each opposing attorney is not inquiry; it is advocacy.
Susan Haack (professor of philosophy and law at the University of Miami) describes the difference this way:
inquiry: “Scientists, like historians, detectives, investigative journalists, legal and literary scholars, etc. are by profession inquirers. Inquiry is an attempt to discover the truth of some question or questions; so the obligation of a scientist, qua [i.e., as] inquirer, is to seek out all the evidence he can, to assess its worth as impartially as possible, to draw conclusions only if and as the evidence warrants doing so, and when the available evidence is inadequate to justify any answer, to try, acknowledging that at present he simply doesn’t know, to get better evidence.”
advocacy: “Attorneys, by contrast, like lobbyists or clergymen, are by profession not inquirers, but advocates. And advocacy is an attempt to make a case for the truth of some proposition or propositions; so the obligation of an attorney, qua advocate, is to seek out evidence favoring the proposition(s) in question, to present it as persuasively as possible, and to play down or explain away unfavorable evidence—or to look for legal grounds for its exclusion.”
The distinction between inquiry and advocacy is at the heart of Freedman’s claim that
[t]he attorney functions in an adversary system based upon the presupposition that the most effective means of determining truth is to present to a judge and jury a clash between proponents of conflicting views. (1470)
[4.2.] Freedman’s Three Questions.
Freedman will be attempting to answer the following questions (quoting from p.1469) [I will read his word “proper” to mean “morally permissible”]:
1. Is it proper to cross-examine for the purpose of discrediting the reliability or credibility of an adverse witness whom you know to be telling the truth?
2. Is it proper to put a witness on the stand when you know he will commit perjury?
3. Is it proper to give your client legal advice when you have reason to believe that the knowledge you give him will tempt him to commit perjury?
As we will see, Freedman’s answer to all three of the “hardest questions” is yes.
All three questions have to do with honesty. They fall under the more general question, is it morally permissible for a criminal defense attorney to promote the welfare of her client over the general value of honesty?
· Ordinary morality (morality as it applies to human beings qua ordinary people and moral agents, rather than qua lawyers, doctors, professors, etc.) places a high value on honesty and the avoidance of deception. It is generally accepted that we have a prima facie moral obligation not to engage in deceptive behavior.
· But as we saw at the end of Milde’s article, it is possible for legal morality and ordinary morality to diverge, i.e., for the moral obligations we have qua moral agents to differ from those lawyers have qua lawyers. [Milde argued that this divergence is possible if legal positivism is true, but not if natural law theory is true.]
The question we should keep in mind when thinking about Freedman’s argument is this: is there a difference between morality in the legal profession and ordinary morality insofar as honesty is concerned?
[4.3.] The “Not Guilty” Plea.
As a preliminary to his arguments that it is proper for an attorney to mislead the court in the three ways mentioned above, Freedman considers the issue of the plea of “not guilty.”
Consider a person who is accused of a crime and who knows that he committed the crime, but who nonetheless pleads “not guilty.” The accused has a legal right to do this. This is thus a lie sanctioned by the law:
The defendant is presumed to be innocent. The burden is on the prosecution to prove beyond a reasonable doubt that the defendant is guilty. The plea of not guilty does not necessarily mean “not guilty in fact,” for the defendant may mean “not legally guilty.” Even the accused who knows that he committed the crime is entitled to put the government to its proof. Indeed, the accused who knows that he is guilty has an absolute constitutional right to remain si1ent. The moralist might quite reasonably understand this to mean that, under these circumstances, the defendant and his lawyer are privileged to “lie” to the court in pleading not guilty. In my judgment, the moralist is right. However, our adversary system and related notions of the proper administration of criminal justice sanction the lie. (1471, emphasis added)
What’s more, the “not guilty” plea obligates the defense attorney to behave in all ways as if the defendant is in fact not guilty. It is not sufficient for the attorney to argue simply that the evidence does not prove beyond a reasonable doubt that her client is guilty. She is obligated to mount the strongest defense possible and thus to argue that the client did not in fact commit the crime:
Criminal defense lawyers do not win their cases by arguing reasonable doubt. Effective trial advocacy requires that the attorney’s every word, action, and attitude be consistent with the conclusion that his client is innocent. As every trial lawyer knows, the jury is certain that the defense attorney knows whether his client is guilty. The jury is therefore alert to, and will be enormously affected by, any indication by the attorney that he believes the defendant to be guilty. Thus, the plea of not guilty commits the advocate to a trial, including a closing argument, in which he must argue that “not guilty” means “not guilty in fact” [rather than simply “not legally guilty]. (1471-72, emphasis added)
Freedman describes ways in which a defense attorney might try to avoid this potential moral problem:
1. Presume that her client may in fact be innocent even if he says he is guilty, or even if he himself believes that he is guilty (e.g., in the fanciful circumstance in which he believes that he fired the fatal shot and does not know “that his gun was loaded with blanks and that the fatal shot was fired from across the street.” 1472). Freedman says that if you as an attorney can be satisfied with this approach, then “there is ... no need to think further about the issue.” The suggestion is, however, that not everyone will be satisfied by this.
2. Maintain selective ignorance by insisting to her client in their first interview that if he is guilty, she does not want to know about it. But, says Freedman, this approach makes it impossible for a lawyer to adequately represent her client:
How is the client to know, for example, precisely which relevant circumstances his lawyer does not want to be told? The lawyer might ask whether his client has a prior record. The client, assuming that this is the kind of knowledge that might present ethical problems for his lawyer, might respond that he has no record. The lawyer would then put the defendant on the stand and, on cross-examination, be appalled to learn that his client has two prior convictions for offenses identical to that for which he is being tried. (1472)
Further, it is impossible for the attorney to safeguard against this outcome by listing for the client all the things that she does want him to reveal (past convictions, etc.) This is because “a lawyer can never anticipate all of the innumerable and potentially critical factors that [her] client, once cautioned, may decide not to reveal.” (1472)
An additional problem with maintaining selective ignorance is that it makes it very difficult, if not impossible, for a defense attorney to properly engage in plea bargaining.
plea bargain (df.): an agreement made by an accused person to plead guilty to an offense in exchange for a lighter sentence; this sometimes involves a plea of guilt to a less serious crime than the one with which the defendant has been charged.
Selective ignorance makes it very difficult to do this properly, because, “[i]f an attorney is to be scrupulous in bargaining pleas ... [s]he must know in advance that [her] client is guilty, since the guilty plea is improper if the defendant is innocent.” (1473)
Stopping point for Wednesday September 8. For next time, continue reading the article by Monroe Freedman, “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions” (pp.1474-78)
 The website of the City of Atlanta Municipal Court Public Defender’s Office has information about how this system works: < http://www.atlantaga.gov/government/courts/mc_publicdefender_102303.aspx >. Since 2003, defense of the indigent in Georgia state courts has been the responsibility of the state government rather than of individual counties. Information on the state of Georgia’s indigent defense system is here: < http://www.gpdsc.com/cpdsystem-main.htm >. But Georgia’s indigent defense system is woefully underfunded, and as a result some persons charged with serious crimes have waited in jail for years for their trials even to begin. See for example Associated Press, “Georgia’s Public Defender System Sued for Lack of Lawyers,” Augusta Chronicle, April 8, 2009, URL = < http://chronicle.augusta.com/stories/latest/lat_500956.shtml >, retrieved September 7, 2010.
 Susan Haack, “Inquiry and advocacy, fallibilism and finality: culture and inference in science and the law,” Law, Probability and Risk (2003) 2, 205-214, p.207.
 That is, morally permissible either by the standards of legal ethics or by the standards of ordinary morality (assuming that there is potentially a difference between the two, as there is if Milde’s account of legal positivism is true).
This page last updated 9/8/2010.
Copyright © 2010 Robert Lane. All rights reserved.