[4.4.] Freedman’s Argument.
Freedman believes that the following argument demonstrates that sometimes a criminal defense attorney is morally obligated to be less than honest with the court.
1. A criminal defense lawyer is obligated to mount an adequate defense for her client. [Freedman never states this explicitly, but he’s obviously assuming it.]
2. In order to mount such a defense, the lawyer must know the facts of the case as fully as possible.
3. The lawyer can get those facts only if the client is convinced that the lawyer will continue to defend him even if he reveals potentially damaging truths about himself.
4. Therefore, a lawyer is obligated to convince her client of this.
5. Once the lawyer has convinced the client of this, she is obligated to continue to defend the client, even if the client does reveal damaging truths about himself.
6. In order to uphold that obligation, it is sometimes necessary for the lawyer to be other than honest with the court.
7. Therefore, the lawyer is sometimes obligated to be other than honest to the court.
There are two inferences in this argument, i.e. two separate steps in reasoning:
· from lines 1 + 2 + 3 to line 4
· from lines 4 + 5 + 6 to line 7
Each of these two inferences needs to be evaluated separately. Do 1, 2 and 3 together give you a good reason for believing 4? And do 4, 5 and 6 together give you a good reason for believing 7?
If you add the following premise, then both inferences are deductively valid (i.e., if all the premises were true, the conclusion would have to be true):
(a) If you are obligated to do x, and if you can do x only if you do y, then you are obligated to do y.
truth of premises
There are five premises to be considered: 1, 2, 3, 5 and 6 (4 and 7 are supposed to follow from other premises, so we don’t need to consider whether 4 on it’s own is true or whether 7 on it’s own is true).
[4.5.] Cross-Examining to Discredit Accurate Witnesses.
At this point, Freedman begins examining situations in which the lawyer is bound by her obligation to her client (more specifically, the obligation to defend her client despite any damaging information that the client has revealed to her) to be less than honest with the court. You can think of his descriptions of these situations as evidential support for premise 6 of his argument.
The first situation is conveyed in the first of Freedman’s three hardest questions:
Q1: “Is it proper [i.e., morally permissible] to cross-examine for the purpose of discrediting the reliability or credibility of an adverse witness whom you know to be telling the truth?”
[See Freedman’s example of cross-examining an elderly woman with poor vision (p.1474).]
if you destroy her reliability through cross-examination designed to show that she is easily confused and has poor eyesight, you may not only eliminate the corroboration [that she has given to a prior witness’s damaging testimony], but also cast doubt in the jury’s mind on the prosecution’s entire case. On the other hand, if you should refuse to cross-examine her because she is telling the truth, your client may well feel betrayed, since you knew of the witness’s veracity only because your client confided in you, under your assurance that his truthfulness would not prejudice him. (1474, emphasis added)
Suppose you choose not to cross-examine this witness because you know her damaging testimony is true.
This is not a breach of lawyer-client confidentiality, since you are not disclosing any information given to you by the client.
However, you are still doing something wrong, because you would still be acting against your client’s interests because of information that he has given you. And this is wrong for the same reason that it would be wrong to break confidentiality: you’ve convinced your client to disclose that information by ensuring him that you will continue to defend him no matter what information he discloses.
When a lawyer fails to cross-examine only because his client, placing confidence in the lawyer, has been candid with him, the basis for [the client’s] confidence and candor collapses. Our legal system cannot tolerate such a result. (1474-75)
He concludes that “the attorney is obligated to attack, if he can, the reliability or credibility of an opposing witness whom he knows to be truthful. The contrary result would inevitably impair the ‘perfect freedom of consultation by client with attorney,’ which is ‘essential to the administration of justice.’” (1475, emphasis added)
[4.6.] Allowing Perjury.
Q2: Is it proper to put a witness on the stand when you know he will commit perjury?
perjury (df.): “the deliberate, willful giving of false, misleading, or incomplete testimony under oath.” [American Heritage Dictionary, 2nd College Ed.]
Suppose that your client has admitted his guilt to you, taking seriously your assurance of confidentiality. He then admits his intention to lie under oath.
Freedman considers a number of different options other than allowing the client to testify, but he argues that each one of them violates your obligation to defend him despite his having revealed damaging truths about himself:
A. It would be immoral for you to prohibit your client from testifying. It would amount to acting on information provided to you by the client in such a way as to undermine his interests (just as refusing to cross-examine to discredit accurate and damaging testimony would).
B. It would be immoral for you to withdraw from the case before it starts, for the following reasons...
· If you withdraw, the same perjured testimony will still eventually be presented. The new defense lawyer will probably be unaware that the testimony is perjury, because the defendant has learned by your departure not to admit that he plans on perjuring himself. The new defense counsel will thus not be in a position to attempt to persuade the defendant not to perjure himself. So withdrawing will not stop the perjury from happening.
· When the client is indigent, he cannot retain other counsel on his own, and so whoever defends him next will be appointed by a court to do so. In some jurisdictions, it is impossible for appointed counsel to withdraw from a case in the absence of “extraordinary reasons,” so (setting aside the option of lying to the judge) you can withdraw only if you admit to the judge that you know your client is guilty. This is wrong for two reasons:
1. It violates your obligation to continue to defend your client despite any damaging information he reveals to you.
2. It is possible the same judge will end up trying the case and will therefore have knowledge of the client’s guilt before the trial begins, unlike the newly appointed counsel!
C. It would be immoral for you to explain your ethical dilemma to a judge, therefore causing mistrial, for the following reasons.
1. Once again, you are violating your obligation to defend your client’s interests despite his having revealed damaging testimony to you
2. It would probably give your client “grounds for appeal on the basis of deprivation of due process and denial of the right to counsel, since he will have been tried before, and sentenced by, a judge who has been informed of the client’s guilt by his own attorney.” (1477)
3. Aside from the moral problem, it doesn’t really change your own situation, since your request is sure to be denied by the judge, who does not want to empower the defendant to cause a series of mistrials in the same fashion. At best, you have not eliminated the moral problem but simply moved it onto the judge’s shoulders.
D. It would be immoral “to let the client take the stand without the attorney’s participation and to omit reference to the client’s testimony in closing argument.” This would be wrong because it “would be as damaging [to the defendant] as to fail entirely to argue the case to the jury...” (1477)
Freedman seems to assume that there are no other options left. So he concludes:
The obligation to defend your client despite his having revealed damaging evidence to you sometimes leaves you “no alternative to putting a perjurious witness on the stand without explicit or implicit disclosure of the attorney’s knowledge to either the judge or the jury.” (1477-78)
But Freedman does not think that an attorney should encourage perjurious testimony. In fact, he says that an attorney has an obligation to try to persuade her client not to commit perjury.
[4.6.1.] But What About Professional Codes of Ethics?
Freedman points out that the American Bar Association Canons of Ethics (1908) does not prohibit this behavior on the part of counsel.
However, as we saw early on in our investigation of legal ethics, the Canon of Ethics has been superseded by the ABA’s Model Rules of Professional Conduct.
Rule 3.3 (“Candor Toward the Tribunal”) explicitly prohibits attorneys from allowing perjured testimony to stand without attempting to correct it:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Furthermore, the question of allowing perjured testimony is faced directly by the ABA’s Standing Committee on Ethics and Professional Responsibility, which issues “Formal and Informal Opinions” on ethical matters relevant to the practice of law:
If, prior to the conclusion of the proceedings, a lawyer learns that the client has given testimony the lawyer knows is false, and the lawyer cannot persuade the client to rectify the perjury, the lawyer must disclose the client’s perjury to the tribunal, notwithstanding the fact that the information to be disclosed is information relating to the representation.
If the lawyer learns that the client intends to testify falsely before a tribunal, the lawyer must advise the client against such course of action, informing the client of the consequences of giving false testimony, including the lawyer’s duty of disclosure to the tribunal. Ordinarily, the lawyer can reasonably believe that such advice will dissuade the client from giving false testimony and, therefore, may examine the client in the normal manner. However, if the lawyer knows, from the client’s clearly stated intention, that the client will testify falsely, and the lawyer cannot effectively withdraw from the representation, the lawyer must either limit the examination of the client to subjects on which the lawyer believes the client will testify truthfully; or, if there are none, not permit the client to testify; or, if this is not feasible, disclose the client’s intention to testify falsely to the tribunal.
Stopping point for Friday September 10. For next time, finish reading the article by Monroe Freedman, “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions” (pp.1478-84)
 For a criticism of this rule, see Michael Asimow and Richard Weisberg, “When the Lawyer Knows the Client is Guilty: Client Confessions in Legal Ethics, Popular Culture, and Literature,” Southern California Interdisciplinary Law Journal 18, 2009, 229-258, pp.240 ff.
 ABA Formal Ethics Opinion 87-353, emphases added.
This page last updated 9/10/2010.
Copyright © 2010 Robert Lane. All rights reserved.