A CARF OF

COMPETING LOYALTIES
How far should a lawyer go to keep a
client out of jaill Should doing so
be the lawyer's only concernI

and ethical considerations of our legal firms the story, but is unable to provide

When a person suspected of a

court is not,
crime stands trial, the objec¬
tive of the attorneys and the
strictly speaking, to dis¬
system.
The organizer
orah
of the panel was Deb¬
Rhode, associate professor of law
further corroboration.

must
The case goes to trial. May
you, call the sister as a witness?
you, or

cover the truth. The defense attorney's at Stanford and an expert on legal eth¬ Assume that the prosecution estab¬
job is to present as persuasively as pos¬ ics. California Attorney General John lishes that the incident could have
sible the facts and the law as seen from Van de Kamp, JD '59, has experience taken place after the movie. On cross-
the standpoint of his client's interests. both as a federal public defender and as examination, your client states that
The prosecutor's job is to represent in a district attorney for Los Angeles after the movie he went to the party
the same way the interests of society. County. Barbara Allen Babcock, profes¬ (which your previousinvestigation
The job of the judge and jury is to weigh sor of law at Stanford, has been a private failed to confirm) What are your re¬
the clearly partisan advocacy of both defense attorney, director of the Wash¬ sponsibilities?
sides and arrive at what seems to be a ington, D.C., public defender's office, Scenario #2.
Alternatively, suppose
just decision. and assistant attorney general of the that after you areunable to corroborate
The defense attorney's commitment United States in charge of the civil di¬ your client's alibi, he acknowledges
to the defendant's interests can raise vision. The panel was moderated by having had sexual relations with the
perplexing ethical questions. How can John Hart Ely, dean of the Stanford Law woman. However, he also initially

an attorney defend a client whom he School. Dean Ely practiced as a public maintains that she invited him into her
believes to be guilty? Why not discredit defender in both the federal and state car and "consented way." After
in every
a truthful witness, if doing so might in San
Diego, and subsequently further
courts discussion, client concedes
your
help get the defendant off? If the de¬ as general counsel of the U.S. Depart¬ that perhaps the woman wasn't "all
fendant admits guilt privately, should ment of Transportation. He taught law that willing," but he is convinced he
the attorney honor the client's confi¬ at Harvard before coming to Stanford as could persuade the jury to the contrary.
dence, blow the whistle, or bow out of dean in 1982. Your preliminary investigation re¬
the case? At a deeper level, to whom veals a former disaffected boyfriend of
does a defense attorney owe the greatest THE HYPOTHETICAL CASE the victim who is willing to testify that
loyalty: to his client, to the legal profes¬ The alleged rape occurred when the vic¬ she "slept around" a lot in college. Such
sion, or to society? tim was en route home from a fund¬ evidence is admissible in your state on

Although the legal profession has raising dinner for her fiance, local po¬
a the issue of
adopted ethical codes to provide guid¬ litical candidate. The defendant, posing
ance on such issues, the rules must be as a service station attendant, allegedly
general and therefore highly abstract. So raped the woman when she stopped for
they do little to simplify the real-life gas. You are the court-appointed attor¬
ethical dilemmas a defense attorney ney for the indigent defendant.
may confront. Scenario #7. Your client initially
A panel of legal experts gathered re¬ claims he was elsewhere that evening.
cently at the Stanford Law School to First he indicates that he was at a bar
discuss such dilemmas. Their discus¬ with two friends; investigation reveals
sion was based on a hypothetical rape that the two friends were in another
consent. You also learn that
your client has been charged with rape
twice before. In both cases he claimed
consent and the prosecution was dis¬
missed without trial because of the vic¬
tims' reluctance to testify.
What are obligations if the client
your
insists on taking the case to trial and
presenting a consent defense? If you do
try the case, how do you question the
victim concerning her previous sex life?

case formulated to raise issues

that, in state on the evening in question.Then
various guises, have been vexing to the your client "remembers" that he was at
legal profession for centuries. Though a party, which the alleged host does not
they were speaking before an audience recall giving. Finally, your client states
of law students, their discussion gives that he was at the movies with his sister
laymen rare insight into the operations and went to bed early. She orally
Scenario #3. Assume that your client
is convicted and then released on bond
pending completion of a pre-sentence
report. Due to an administrative over¬
sight, however, no date for sentencing is
con¬ ever set. What are your obligations?

38 / Fall 1983
JOHN VAN DE KAMP: The first major
question raised in the hypothetical case
is, May you call the defendant's sister
to the witness stand in order to
lish that he was at the movies and
to bed
early? The sister has orally con¬
firmed the story but is unable to provide
other corroboration. Clearly, you may
call her Indeed, at this point she is all
you have other than the defendant, and
she does provide some type of corrob¬
oration. Your job is to present the most
credible defense that you can, subject,
of course, to the limits of the American
Bar Association Code of Professional
Responsibility that you can't knowing¬
ly use perjured testimony.
Next question: Must you put the sis¬
ter on the stand? No. That's not man¬
dated. It's more of a tactical decision.
You have to ask yourself some impor¬
tant questions. For instance, Is she
going to be credible? Let's face it, she
is the defendant's sister. You know that
she is going to get chewed up as
biased, as trying to protect her brother
at every turn. In deciding whether or not
to put her on the stand,
have to you
assess her testimony on the basis of
benefits versus risk. But even though
it's not mandated, given what I know,
I would call her. Even if the prosecution
can establish that the incident could
have taken place after the movie, her
testimony is going to cast doubt on the
prosecution's case. And after all, it is
the prosecution's burden to prove guilt
beyond reasonable doubt.
a Busy guy!
Now, what do you do if you really
don't believe your client because his
stories have not checked out? All I
tell you is this: if you are going to work
on the defense side of the street, you do
not play God. There be a number
may
of reasons for his variety
of stories: per¬
haps fear, a mistake, new recollection,
and of course avoidance of responsibil¬
ity. But the inconsistency of his stories
is not in itself a reason for you to walk
away from him.
What happens next in this hypo¬
thetical is a defense lawyer's night¬
mare. After testifying that he went to
the movie with his sister and then
to bed early, on cross-examination
client contradicts himself and says
after the movie he went to a party. Sur¬
prise. What do you do now? Do you tell
the judge that you've not been able to
confirm that there even was such
party? Obviously not. Your obligation
to keep your client's conversation con¬
estab¬ fidential is not going to permit that. Do
went you withdraw from the case?
Remember, the general rule remains
that you simply can't put perjured tes¬
timony on the stand. But note carefully:
in this situation, you did not put him
on the stand to perjure himself. You did
not ask the questions resulting in the
contradiction. More important than
that is the question, Can you say that
his contradictory answer is perjurious?
Remember, the story contradicted is
that he went to the movies and went to
bed early. That's what you knew when
he took the stand—a story his sister
corroborated. Now on cross-examina¬
tion, he says that after the movie he
went to the party, a story you were never
able to confirm. Clearly, there is a gap
between those two stories. But has he
forgotten that after the movie he went
being to bed? Possibly. Is he simply dissem¬
bling? Is it a mistake? Do you know for
sure?
Mind you, he's never actually admit¬
ted to you privately that he was lying,
even though he has given some rather
contradictory stories. Isn't it possible
that all of his stories—every one of
them—might be true? He could have
been in the bar with a friend, as in his
first story. He could then have gone to
the movie with his sister, gone to bed
early, and later got up to go to the party.
So your client has just contradicted
himself, apparently, by claiming first
can that he was in bed, later that he was at
a party. You know very well that the
prosecution is going to make mince¬
meat out of that in closing argument.
And while there's an old adage that says
an attorney should never ask a question
whose answer he does not know, I would
probably ask him on redirect exami¬
nation to explain why he had first said
he had gone to bed and then later said
he had gone to a party. Perhaps he could
reconcile those statements, perhaps
not. If he made a mistake, it would be
went to his own benefit to explain it. But
your without a satisfactory explanation, I
that imagine he would have cooked himself.
BARBARA ALLEN BABCOCK: The facts
are always much muddier in real life
a than they can ever be in a hypothetical
case, even a brilliantly drawn one.
Though there are moments in a crimi¬
nal defense lawyer's life when one feels
true angst, those moments are rare. So
many times good tactics and ethics
combine: the useful thing to do for your
client is also the thing that the person
on the street would tell you is the eth¬
ical thing to do, without any of these
deep questions.
The second situation in the hypo¬
thetical, in which the defendant admits
to you that he had sexual relations with
the woman, is meant to raise the ques¬
tion of whether you can put a person on
the stand whom you know is guilty.
That is the classic question. But the key
in the hypothetical is the phrase, "after
further discussion your client concedes
that perhaps the woman wasn't 'all that
willing.'" If I
were the defense attorney,
there wouldn't be such further discus¬
sion. As soon as he had said that she
had consented in every way, I would say
"fine" and start looking into that to see
what would support that as a defense.
We wouldn't have any further discus¬
sion in which he would admit that she
wasn't all that willing. That scenario
would never occur. Once I went out and
found that there absolutely no sup¬
was
port for that defense, though, then I
would talk to him about entering some
plea other than not guilty. But I would
not ever have reached the point with
him—ever—in which I would break
him down and he would tell me that he
may not have
good defense. That is
a
my approach to defending a case and all
I can tell you about it is that itworks.
Now, would you present this evidence
of the prior unchastity of the victim?
Forty-three states now have rape shield
laws, whereby such evidence cannot be
used in a trial as freely as it formerly
could, although in some cases it still
can come in. But let's assume that this
evidence is allowed. If you are going to
take the defense, there is no question
about presenting the evidence. You have
to do it. You have to present any evi¬
dence at all that supports your client.
There is, however, some question at
the outset whether you should take the
case at all, even as a public defender. I
have a feeling that if you are a woman
representing a person in a rape case in
which the defense is consent, you are
The Stanford magazine / 39

the question most crudely,
put
Why should the attorney be permitted
to destroy an innocent woman's
reputation in order to spring
lending something the defen¬
extra to
dant that may not be his due. He is
entitled to an incredibly full defense un¬
der the Sixth Amendment, but the jury
is going to imply something extra from
the fact that a woman is sitting next to
him presenting this consent defense. So
I would say that if you are a female de¬
fense attorney, youshould think twice
at the outset about taking a rape case.
But once you have taken it, you have to
do all that is possible in raising the
defense.
VAN DE KAMP: Let me the point
pursue
about doing all you can with whatever
evidence you have. In the hypothetical's
second scenario, the defendant has ad¬
mitted involvement but claims that the
woman had consented, then he later
concedes that she wasn't "all that will¬
ing." Now, that may appear to be rather
close to an admission. But, look at it
for just a second. What does that mean,
"she wasn't all that willing"? Certainly
that is not an admission of rape. He
wants to go to trial and the consent
defense is all you have. Certainly you
have the right and the obligation to
present all the evidence you have as long
as tactically wise and as long as it
it's
is not in violation of the canons relating
to your duty not to knowingly put on
perjured testimony. And so, in jurisdic¬
tions that allow you to question a vic¬
tim about prior unchaste sexual con¬
duct—something you cannot do today
in California except in very limited sit¬
uations—you should go forward to
question the victim about her previous
sex life, relying on specific information
given by the disaffected boyfriend. All
the while, mind you, you must weigh
the risk that your cross-examination
may do more harm than good. That is
40 / Fall 1983
T
lo
a confessed rapist!
the kind of tactical decision defense
lawyers have to make day in and day
out. Indeed, if you find it's going to work
to your client's detriment, then you say
no. But it's essentially a practical, tac¬
tical decision.
DEBORAH RHODE: I'd like to focus on
two issues: the lawyer's role in im¬
peaching truthful witnesses, and the
lawyer's role in eliciting perjury by un¬
truthful witnesses (either the defendant
or a third party). For purposes of dis¬
cussion I will assume that the lawyer
in this hypothetical recognizes that,
under any commonsense definition of
the term "false," his client's story is
indeed false.
There has been a fair
degree of profes¬
sional consensus over the years
that im¬
peachment of the truthful witness is
appropriate whereas eliciting perjury is
not. That distinction is worth exploring
because, to many people, the rationale
is not quite so self-evident as those of
us steeped in the lore of the adversarial
system sometimes suppose. To put the
question most crudely, as the public
will often do, Why should the attorney
be permitted to destroy an innocent
woman's reputation in order to spring
a confessed rapist? I take the defen¬
dant's statement, "she wasn't all that
willing," to be as close to a confession
of guilt as one is ever going to get.
The second and related question is,
Why is it somehow defensible to put the
rapist back on the streets by impeach¬
ing and ruining this witness's reputa¬
tion—at enormous psychological cost
to her, her fiance, and her family—par¬
ticularly since that could deter future
rape victims from coming forward to
testify? Why is that somehow consid¬
ered an appropriate course of profes¬
sional conduct, whereas eliciting the
false alibi or the false testimony from
the defendant is not? And if you balance
the social harms, would more be lost in
letting the defendant tell his fishy alibi
than in having the attorney participate
in the destruction of a woman's repu¬
tation?
I think those sorts of concerns for the
victim ought be trivialized. In
not to
large part, it is those considerations
that have persuaded many jurisdictions
to pass rape shield laws, which exclude
certain evidence of sexual conduct
when the effect is prejudicial than
more
material. And there may also be in¬
stances when an attorney could believe
that, as a matter of prudence or tactics,
it is inappropriate to pillory the wom¬
an's reputation. But the ethical issue
really only arises if the evidence is ad¬
missible and if the attorney believes it
would be tactically useful in his case.
Let's assume that to be true.
I agree with the conventional view,
that the lawyer ought to make full use
of the evidence, regardless of his sense
of the truth of the witness's complaint
and the falsity of his client's denial. To
be sure, he does not engage in purpose¬
less humiliation, but neither ought he
to usurp the function of the judge and
jury by declining to pursue relevant in¬
quiry simply because he personally be¬
lieves the witness is truthful or the
client is guilty. There is no way to as¬
certain whether the state has proved its
case beyond a reasonable doubt if de¬
fense counsel declines to pose ques¬
tions that might raise that doubt in the
minds of jurors.
Our system of justice proceeds on the
assumption that a defendant's guilt
ought to be determined, not in the pri¬
vacy of a lawyer's office, but in an open
court under due process of law. And his¬ Washington, D.C., defender's office out attorney is at least a passive if not to¬
torical experience suggests the impor¬ there looking for witnesses on the four¬ tally active accomplice in perjury. And
tance of that general presumption, in teenth time around, I knew that there he undermines his client's testimony
its ability both
to protect innocent de¬ was little credibility in the defendant's and confidence by declining to advocate
fendants and to minimize the possibil¬ tale. Moreover, to the extent that an at¬ his position in court. It's not a workable
ity of state abuses. torney somehow protects himself from rule and surveys suggest that most at¬
For evidence, we simply survey
can knowledge of falsity, he's engaging in a torneys don't follow it in practice.
what currently for criminal
passes kind of selective ignorance that is in¬ Nonetheless, it seems to be the consen¬
justice in most totalitarian regimes. consistent with his obligations to pro¬ sus in the profession that maybe we

Clearly, one of the best ways, if not the vide effective counsel. ought to live with the pretense, and so
only way, to create both the perception The courts and the legal profession the official codes of ethics adopt the
and the reality of due process is to en¬ have dealt with the problem of lying compromise position. That may help
sure that an accused—no matter how clients in rather inconsistent fashion. explain why so many defense lawyers
guilty, whose life and liberty and rep¬ There arecurrently three prevailing re¬ end up as categorical fact skeptics. As
utation are at stake—has at least one sponses with the profession. One is the long as they can extract ambiguities
advocate whose loyalty is relatively un¬ more or less absolutist position, which from all but the most unambiguous
constrained by competing loyalties to says that one resolves all doubts in favor situations, they don't "know" that their
the state. of the client and lets him testify. The client is lying. Given the alternatives,
The harder question is what "rela¬ rationale for that position, which has that's perhaps not an intolerable posi¬
tively unconstrained" means in this con¬ considerable force, is that more is tion.

text, particularly when it approaches gained by encouraging a confidential re¬

the level of eliciting perjury. The rules lationship between a client and his JOHN ELY: Notice that one question
simply enjoin an attorney from making counsel—and then allowing the fact¬ that often used to be raised in discus¬
"knowing" use of perjury. Well, how finder to evaluate the testimony—than sions like this has not been raised here,
often does an attorney "know" with is gained by forcing the attorney to blow namely, When you know the defendant
certitude? In the few instances in which the whistle on his client. The argu¬ is guilty, do you go to trial? It has not
he does, he can probably convince the ment is that truth, after all, is not an been raised because we all four agree,
defendant to plead guilty. But, as I dis¬ absolute value. We tolerate all kinds of of course do. It's very important to
you
covered in the course of surveying the constitutional constraints on the truth¬ every citizen that the government be
Public Defender Service Office in Wash¬ finding process—the Fifth Amendment obliged to prove its case. Notice,
ington, D.C., almost all attorneys can privilege against self-incrimination, though, that that right to make the gov¬
find some ambiguity in almost all cir¬ the Fourth Amendment prohibitions of ernment prove its case necessarily en¬

cumstances. A client with assigned unreasonable searches and seizures, tails the proposition that it's all right
counsel understandably tends to be and so forth. to try to discredit witnesses whom you

somewhat wary about announcing to The second argument, which I also are quite certain are telling the truth.

his attorney either his guilt or his in¬ believe has force, is that the attorney On that we don't seem to have any dis¬
tent to perjure himself: if the attorney ought not to participate in eliciting agreement either.
proves squeamish, the client has no one what he knows or reasonably should As everybody has said, you're not sup¬
else to turn to. In a world of finite time know is perjury. Confidentiality is not posed to put on perjured testimony
and resources, it is unusual for attor¬ an absolute value either. And it is un¬ knowingly, but you have to ask yourself,
neys to go to the ends of the earth to clear that the lawyer's complicity in Why can't you do it? A defense attorney
prove to themselves that there is indeed perjury is a necessary or appropriate has an obligation not to violate the con¬
no factual basis for the fourteenth alibi means of ensuring candid disclosures fidences of the defendant, but by pre¬
the defendant happens to have told between clients and attorneys. To place venting him from taking the stand or
them. an unqualified premium on the client's by pointedly withdrawing from the
That attitude can lead very
easily interests undervalues the corrosive ef¬ case, you are tipping the fact that you
into a kind of categorical fact skepti¬ fect on the system and on the legal think the defendant is about to tell a

cism—"one never knows." In one profession generally. lie. You come close to violating a con¬
sense, that kind of response is appeal¬ That's led a lot of
people to an un¬ fidence there.
ing, if only because it suggests a hu¬ comfortable third position, which is However, let me add my voice to John
mility that is all too uncharacteristic that we ought to somehow reconcile the Van de Kamp's and Barbara Babcock's
of our profession. But in another sense, other two: the attorney should neither and disagree with Deborah Rhode. The
it's really disingenuous. Many of the affirmatively aid in eliciting perjury, nor clean case of the defendant who says
public defenders with whom I have spo¬ should he preempt it. So, in essence, he "I'm going to take the stand and tell a
ken and worked indicated that in any sits back and lets the client tell the tale pack of lies" is a myth. Those people
commonsense use of the term "know," in unprompted narrative and doesn't ar¬ don't go to trial. The people who are
they often knew that the defendant on gue that particular testimony to the going to have even a shot at acquittal
his fourteenth try was telling a fairy jury. I think that solution probably ends come right out of the box lying. They
tale. And as an investigator for the up compromising both principles. The lie to the police, they lie to their attor-

The Stanford Magazine / 41


in
neys, they lie to the jury and they may
get off. Deborah says lawyers can tell
when their clients are lying even when
they don't admit they are. We've all un¬
doubtedly had that experience, but if
it's that clear to Deborah or to one
the rest of us, it'll be clear to the jury.
They'll convict the person. If it's not
that clear to the jury, it shouldn't be that
clear to Deborah, and she should go
ahead and put the person on.
RHODE: Let me clarify my views on the
question of knowledge. The situation
comes up very rarely in pure form, in
which you "know" with absolute cer¬
titude. But it comes up all the time
when you "know" in a commonsense
use of the term. That's based on
interviews with Washington, D.C.,
public defenders and a survey of the
criminal defense bar in which attorneys
were asked what they would do when
the client went on the stand to tell what
they knew to be a fishy tale. And in¬
terpreting the question in a common-
sense usage of the term "know," 90 per¬
cent of the lawyers said they'd let him
testify. Almost all attorneys I inter¬
viewed admitted that there had been
cases in which they were quite
vinced that what the defendant had fi¬
nally come up with was probably not
an accurate statement of the facts.
Since the law generally doesn't require
absolute certainty before assuming that
a person has knowledge, it isn't self-
evident that professional codes should
be different.
VAN DE KAMP: Let's move on to
hypothetical's third scenario, in which
your client is released on bond following
conviction but, due to clerical error, no
sentencing date has been set. This is a
42 / fall 1983
I srit
possible that all of his stories
it
might be true! He could have been
the bar, then gone to the movie, then
gone to bed, and then got up to go
to the party. Busy guy!
tough one. It is based on an actual case
in which the convicted defendant re¬
mained free for about ten years. What
is your obligation defense counsel?
as
Should you report it back to the court?
of I know of no specific obligation in the
canons or elsewhere that requires you
to bring that clerical
error to the atten¬
tion of the court. At the same time, if
someone from the approached you
court
asking what your recollection of that
sentencing was, I think you have an af¬
firmative duty to respond honestly. But
I don't think you have a duty to correct
the work of the clerk and probation of¬
ficer. Making sure that sentencing is
scheduled is their reponsibility; your
responsibility is to your client. If he
lots of wants you to move to schedule the sen¬
tencing, fine. You may even wish to
counsel him to do that. But it's
obligation.
RHODE: What unsettles me about the
actual case is not so much the defense
attorney's conduct as the rationale he
gave for it. When interviewed by a re¬
porter about how he could let this con¬
victed rapist out in the streets to vic¬
timize more women, the defense
counsel's response was, "Well, he didn't
con¬
strike me as the kind of guy who would
do it on a regular basis." That comment
is worth keeping in view: what if he
were that kind of guy, and does that
change the attorney's obligation signifi¬
cantly?
BABCOCK: The issue of the defendant's
being released on bond and never sched¬
uled for sentencing presents a tremen¬
the dously hard decision. Between the lines
in the real-life case are the concerns
the lawyer. He didn't just sit around for
ten yearsand not think about it. A year
after the foul-up he asked a lawyer from
another part of the state to request an
opinion from the state bar association
about whether a lawyer would be re¬
quired to turn in a client under the cir¬
cumstances of this case. So you can see
that he stewing over it.
was
Practically, I would think that the un¬
certainty is not a good thing for your
client. If you say your only duty is to
do what is good for client, you
your
must ask whether it is
good for him to
be in limbo for years and years. Any
day the court may find out. Meanwhile,
your client is going to be leading this
sort of underground life. So this is an¬
other area where tactics and ethics
come together. Think how nice you
look and how nice your client looks
after letting it go, say, four or five
months, and then notifying them: "My
not your client has led this blameless life for four
or five months and we're calling this
error to the court's attention. He's com¬
ing in for sentencing." Isn't that better
representation than just letting it go?
It's verysimplistic to think that being
totally devoted to the client's cause
means that you lie or ignore other
considerations.
ELY: I have some trouble with Barbara's
suggestion that it's going to be for the
convicted client's own good to turn
him in. However, I don't see how you
would be violating a confidence by do¬
ing so. Nor do I see how you're usurping
the function of the jury, judge, or any¬
body else in the system. I'm not clear
what duty you would be violating, un¬
less there is a general duty I don't know
about, to the effect that a defense at¬
of torney must never do anything that
would hurt his or her client.
AUDIENCE: Professor Babcock, you
said earlier that once your client tells
you he didn't do it, there would be no
further discussion. Given that the
client is not likely to possess the legal
knowledge to know which facts may be
in his or her favor, do you mean to say
that you would adopt the policy of will¬
fully ignoring certain facts? Is it pos¬
sible you might be ignoring facts that
would be in your client's favor?
BABCOCK: Your question carries the as¬
sumption that I'm going to find them
all eventually. Remember that this
out
process doesn't take place on a page or
immediately. It takes place in time as
you investigate a case and put together
a defense, and so there may be more
facts that need to be elicited. But what
I'm really trying to avoid is the point
at which you say to a client, "I'm your
lawyer and anything
you can trust me;
you say to me is completely confiden¬
tial. Now tell me everything about what
really happened." Suppose he says,
"Well, I had nothing else to do that
night, it seemed like an easy thing to
do, so I did it." I don't want to hear that.
Someday I may have to hear it. In
hundreds of cases I did have to hear it,
and I would come back and say,
"This
isn't going to work. There isn't anybody
out there who says you were at a bar or
a party or a movie. Even your mother
won't say you were watching television
with her. There's no television in your
house, man!" You come down to that
eventually. But let's not start that way.
VAN DE KAMP: If you're a court-ap¬
pointed lawyer, the client probably
doesn't trust you from the very begin¬
ning. Often a defendant will tell the
judge, "I don't want a public defender, I
want a lawyer." That's the way too
many defendants really look at public
defenders and court-appointed counsel.
When doing defense work I found,
however, that in the long run I wanted
to have my client disclose to me what
he or she had done in the fullest detail
possible. I found that probably 98 to 99
percent of the time, by having them do
that I was better able to get them in a
position to assess what they should do.
And if the case were overwhelming—as
it usually is in federal court—and the
evidence compels a plea of guilty, I
would have the client take that plea,
knowing that I would thereby be saving
him many years of incarceration. The
statistics will indicate that a guilty de¬
fendant who pleads guilty is going
get far less time in prison than would
a defendant who goes to trial and puts
on a defense that gets chewed up and
results in conviction.
So I think Barbara and I talking
are
along the same lines here. We're talking
tactics, which merge so many times
into ethics. You're trying to do the very
best you can for your client and by
knowing as much as you can, you're
probably better able to help him or her
in the long run.
Let me ask Barbara, though, Do you
think there is an obligation for the law¬
yer to try to persuade the client to turn
himself in?
BABCOCK: What I would do in that
is to say,"Look, they haven't set your
sentencing, but you don't know that
they're not going to catch up with the
mistake. Let's let it slide for
a dant twice
months, but then I think it would look
good if we came in."
But let me add that if you're really
doing your job as a defense lawyer, you
should have a relationship with your
client such that he'll take your advice.
He should know you're going to do your
best for him so that if you say, "You
shouldn't take the stand because your
story won't sell" or "I think it's in your
best interest to turn yourself in and take
the sentence," he'll go along with
And if you have done a good job for him
all along, then you probably do have that
relationship. I can't imagine a client in¬
sisting on taking the stand against my
advice and lying or presenting some
defense that I haven't devised. That
shouldn't happen.
AUDIENCE: You all agree that
seem to
we shouldcharge in and cross-examine
the victim about her prior sexual con¬
duct in order to discredit her. On the
other hand, you all seem to agree that
the rape shield laws are appropriate
pieces of legislation. I'm troubled by a
profession whose code of professional
responsibility allows or requires that.
RHODE: The rape shield laws in most
jurisdictions would probably allow evi¬
dence of prior sexual conduct under the
circumstances of this hypothetical.
Those laws generally don't bar the evi¬
dence entirely, but just put constraints
on the situations in which it's appro¬
priate to use it. Some of the shield laws
to simply say that there have to be specific
findings that the prejudice resulting
from the evidence would not outweigh
its materiality. Some of the laws say
that for certain kinds of offenses the
evidence can't be used, but if the charge
is rape and the defense is consent and
the evidence about the woman's prior
sexual conduct is relatively recent, then
the vast majority of states would let
that evidence in.
VAN DE KAMP: Let me try to sum up.
First of all, the criminal justice system
as we know it is an adversarial process
with artificial boundaries. It is not a
pure search for truth. Let's face it. We
have Fifth Amendment protections, and
case defendants certainly avail themselves of
them every day. We have Fourth Amend¬
ment protections. We have double-jeop¬
ardy provisions against trying a defen¬
few
though we may have
even
better evidence later.Indeed, if it were
a pure search for truth, we would have
none of those protections. We would
have no attorney-client privilege.
But as it is, the trial of a criminal
is the occasion for the
case prosecution
to the accused guilty beyond a
prove
reasonable doubt in a way that ensures
that the evidence presented is true, free
from taint as we know it, and free from
prejudice which exceeds its value for
you. truth. This is in order to protect our
society against overreaching on the part
of the constables and the prosecutors.
The legal process is a very complicated
kind of chess game, and one that is very
hard for the public to understand.
I must saythat in actual practice, the
kinds of issues we've been
discussing
do not come up all that regularly. I can¬
not recall having ever had a defendant
take the stand after telling me he was
going to lie. These are interesting issues
to debate, but every one of them has to
be addressed within the confines of the
particular problem. The advice from our
bar associations, in their canons and in
the codes, is glittering generalities from
which it is very hard to draw fine lines.
Often, what you're left with is your
own sense of right. The task for lawyers
on both sides of the fence is to make
sure that
they don't get totally over¬
whelmed by their cause, their defen¬
dant, or (on the other side) by a prose¬
cution aimed at success regardless of
the means.
jj
The Stanford Magazine / 43