[10.5.] 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:

 

(6)   In order to uphold that obligation [i.e., the obligation to defend the client in spite of incriminating information revealed by the client], it is sometimes necessary for the lawyer to be other than honest with the court.

 

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).]

 

Says Freedman,

 

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 such 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)

 

 

 

[10.6.] 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, 2^nd 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 you might consider other than allowing your 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 following:

 

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.

 

 

[10.6.1.] 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.[1]

 

Model Rule 1.16 mentions fraud as a legitimate reason to withdraw from representation of a client...

 

(b) ... a lawyer may withdraw from representing a client if...

(2)     the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent...

 

It also says, more generally, that counsel may withdraw if representation will lead to violation of the law:

 

(a) ... a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the rules of professional conduct or other law...

 

But on the other hand, Rule 1.6 seems to imply that a lawyer may not reveal confidential information about the client without the client’s consent (except under very specific circumstances, none of which cover the sorts of cases Freedman has described):

 

(a)     A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b)     A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1)     to prevent reasonably certain death or substantial bodily harm;

(2)     to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(3)     to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(4)     to secure legal advice about the lawyer’s compliance with these Rules;

(5)     to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

(6)     to comply with other law or a court order.

 

 

So the Model Rules give no clearer guidance as to how the lawyer should behave in the kind of case described by Freedman than did the Canons of Ethics that the Model Rules replaced.

 

However, 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.[2]

 

 

Stopping point for Wednesday April 8. For next time (Monday April 13; this class will not meet on April 13), finish reading the article by Monroe Freedman, “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions” (pp.1478-84)