[4.6] Advice That Might Encourage Perjury.
Freedman now describes a third situation in which a criminal defense attorney may be obligated to be less than honest with the court:
Q3: 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?”
According to Freedman, this might be “the most difficult problem of all, because giving such advice creates the appearance that the attorney is encouraging and condoning perjury.” (1478, emphasis added)
The perjured testimony that Freedman has in mind is not limited to testimony about objective facts (e.g., whether the client was at a crime scene at a specific time).
He considers a number of examples, some of which come from outside criminal law:
1. Giving advice to the client that might influence what the client says about his own past intentions. Freedman considers two types of case:
2. Giving advice to the client might influence what he says regarding his own past actions, before he has revealed potentially damaging information.
[see the penknife story, p.1479]
3. Conveying an offer of a plea bargain from the district attorney to the client, even when you have good reason to believe that the client is innocent.
[see example of the person charged with assault with intent to kill (p.1480-81), and of a man accused of unauthorized use of an automobile (p.1481 n.23)]
In all of these cases, the lawyer has provided information to the client that she knows might tempt the client to lie while giving his testimony. But Freedman notes that were the lawyer herself accused of any of the relevant crimes, she herself would have access to that information. So, reasons Freedman, the client also has a right to that information and to make his own choice about what to do.
[4.7.] “Frustrating the Search for Truth.”
Freedman concludes by comparing his three examples of “being other than honest” with other instances in which attorneys may permissibly “frustrate[e] the search for truth and the prosecution of a just claim”... [see section III, p.1482]
[4.8.] Noonan’s Objection.
In a postscript, Freedman responds to an objection made by John Noonan (b.1926, former professor of law at Notre Dame and Berkeley, now a Senior Judge on the US Court of Appeals for the 9th Circuit).
As stated by Freedman, the objection is as follows: “the role of the advocate is to promote a wise and informed judgment by the finder of fact.” (1482) In being dishonest in the ways in which Freedman has described, a lawyer would not be doing this (according to Noonan). Since a lawyer in our adversary system of law has an obligation to act as an advocate, it would be wrong for her to do what Freedman defends.
Freedman defends his view in the following ways...
First, he describes Noonan’s objection as question-begging...
begging the question (df.): an argument makes the mistake of begging the question when it assumes in its premises the very claim that it is supposed to be proving. [In Latin, this is known as petitio principii.]
Freedman’s point seems to be that Noonan is simply assuming that the best way “to promote a wise and informed judgment” by judge and jury is to avoid the sorts of dishonesty Freedman has described. But this is the very thing at issue. Noonan needs to argue that avoiding Freedmanian dishonesty is the best way to achieve that goal, not simply to assert that this is the case.
Second, Freedman responds that the general principle that Noonan endorses (viz., that lawyers should “promote a wise and informed judgment by the finder of fact”) fails to yield any definite answers about what to do in some specific cases...
[see the example about mistaken times, p.1477 n.16 and p.1483]
and yields the wrong answer in others.
[the taxation case again, p.1483; says Freedman, the principle would direct a tax attorney not to answer her client’s question in this case... but (he says) “virtually every tax lawyer in the country” would answer her client’s question (p.1484)].
Third, Freedman responds to what Noonan has to say about the specific case of cross-examining an accurate witness in order to impugn her testimony:
Finally, Professor Noonan argues that it would be better to let the truthful (but misleading) witness remain unimpeached and to trust the trier of fact to draw the right conclusions. This is necessary, he contends, because “repeated acts of confidence in the rationality of the trial system are necessary if the decision-making process is to approach rationality.” This means that the fortunes, liberty, and lives of today's clients can properly be jeopardized for the sake of creating a more rational system for tomorrow’s litigants. It is hard to believe that Professor Noonan either wants or expects members of the bar to act on this advice. (1484, emphasis added)
Stopping point for Monday September 13. Next time, we will review for your first exam, which is this coming Friday, September 17.
 The article that criticizes Freedman and to which he is responding is John Noonan, “The Purposes of Advocacy and the Limits of Confidentiality,” Michigan Law Review 64 (1485-92), 1966.
This page last updated 9/13/2010.
Copyright © 2010 Robert Lane. All rights reserved.