PHIL 2120: Introduction to Ethics

Robert Lane
 Lecture Notes: Wednesday September 8, 2010

[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.[1] 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.[2] 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.

Advocacy. and to play down or explain away unfavorable evidence—or to look for legal grounds for its exclusion. Susan Haack (professor of philosophy and law at the University of Miami) describes the difference this way: inquiry: “Scientists.2. but the business of each opposing attorney is not inquiry. investigative journalists.e. to assess its worth as impartially as possible. to get better evidence. . And advocacy is an attempt to make a case for the truth of some proposition or propositions.] Inquiry vs.”[3] 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. are by profession not inquirers. like lobbyists or clergymen. and when the available evidence is inadequate to justify any answer.” advocacy: “Attorneys. as] inquirer. etc. qua advocate. legal and literary scholars. so the obligation of a scientist.] Freedman’s Three Questions. to try. qua [i. by contrast.1. Inquiry is an attempt to discover the truth of some question or questions.[4. but advocates. to draw conclusions only if and as the evidence warrants doing so. are by profession inquirers. detectives. is to seek out all the evidence he can. is to seek out evidence favoring the proposition(s) in question. The business of a court may be inquiry (the pursuit of truth). like historians. so the obligation of an attorney.. acknowledging that at present he simply doesn’t know. it is advocacy. to present it as persuasively as possible.

i. . 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. 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. They fall under the more general question.  But as we saw at the end of Milde’s article. rather than qua lawyers.] 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. All three questions have to do with honesty.1469) [I will read his word “proper” to mean “morally permissible”[4]]: 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. professors. Is it proper to put a witness on the stand when you know he will commit perjury? 3.Freedman will be attempting to answer the following questions (quoting from p. Freedman’s answer to all three of the “hardest questions” is yes. but not if natural law theory is true. [Milde argued that this divergence is possible if legal positivism is true. It is generally accepted that we have a prima facie moral obligation not to engage in deceptive behavior. etc.e. it is possible for legal morality and ordinary morality to diverge.3.] The “Not Guilty” Plea. doctors.. for the moral obligations we have qua moral agents to differ from those lawyers have qua lawyers.) places a high value on honesty and the avoidance of deception.

” Consider a person who is accused of a crime and who knows that he committed the crime. under these circumstances. and attitude be consistent with the conclusion that his client is innocent. Effective trial advocacy requires that the attorney’s every word.” for the defendant may mean “not legally guilty. including a closing argument. (1471-72.As a preliminary to his arguments that it is proper for an attorney to mislead the court in the three ways mentioned above. our adversary system and related notions of the proper administration of criminal justice sanction the lie. This is thus a lie sanctioned by the law: The defendant is presumed to be innocent. 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. Indeed. However. the plea of not guilty commits the advocate to a trial. action. The burden is on the prosecution to prove beyond a reasonable doubt that the defendant is guilty. (1471. In my judgment.” Even the accused who knows that he committed the crime is entitled to put the government to its proof. the moralist is right. but who nonetheless pleads “not guilty. The jury is therefore alert to. the “not guilty” plea obligates the defense attorney to behave in all ways as if the defendant is in fact not guilty. Thus. The plea of not guilty does not necessarily mean “not guilty in fact. in which he must argue that “not guilty” means “not guilty in fact” [rather than simply “not legally guilty]. emphasis added) . As every trial lawyer knows.” The accused has a legal right to do this. any indication by the attorney that he believes the defendant to be guilty. Freedman considers the issue of the plea of “not guilty. the jury is certain that the defense attorney knows whether his client is guilty. the defendant and his lawyer are privileged to “lie” to the court in pleading not guilty. emphasis added) What’s more. The moralist might quite reasonably understand this to mean that. 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. and will be enormously affected by. the accused who knows that he is guilty has an absolute constitutional right to remain si1ent.

this approach makes it impossible for a lawyer to adequately represent her client: How is the client to know. Maintain selective ignorance by insisting to her client in their first interview that if he is guilty. assuming that this is the kind of knowledge that might present ethical problems for his lawyer.” The suggestion is. for a defense attorney to properly engage in plea bargaining. 2. Presume that her client may in fact be innocent even if he says he is guilty. plea bargain (df.. be appalled to learn that his client has two prior convictions for offenses identical to that for which he is being tried. Freedman says that if you as an attorney can be satisfied with this approach.” 1472).Freedman describes ways in which a defense attorney might try to avoid this potential moral problem: 1. this sometimes involves a plea of guilt to a less . for example. she does not want to know about it. no need to think further about the issue. that not everyone will be satisfied by this. precisely which relevant circumstances his lawyer does not want to be told? The lawyer might ask whether his client has a prior record.): an agreement made by an accused person to plead guilty to an offense in exchange for a lighter sentence. etc. may decide not to reveal. The lawyer would then put the defendant on the stand and. then “there is . 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. 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) Further.. The client. or even if he himself believes that he is guilty (e.) This is because “a lawyer can never anticipate all of the innumerable and potentially critical factors that [her] client. might respond that he has no record.. on cross-examination. once cautioned. however. But. if not impossible. says Freedman.g.” (1472) An additional problem with maintaining selective ignorance is that it makes it very difficult.

[s]he must know in advance that [her] client is guilty.. “[i]f an attorney is to be scrupulous in bargaining pleas . since the guilty plea is improper if the defendant is innocent..serious crime than the one with which the defendant has been charged. because. Selective ignorance makes it very difficult to do this properly.” (1473) .

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