26 June 2003

Ethics and the Criminal Lawyer:

Quoted from Harvard Journal of Law and Public Policy, Lawyers and Truth-Telling, Albert W. Alshuler (Volume 26, Number 1, Winter 2003)**:
"Some lawyers say they never know what the truth is - not even when a client has confessed his guilt. Even more reject the conventional wisdom that a lawyer should describe the attorney-client privilege to the client and press the client hard for the truth to avoid being surprised at trial.8 These lawyers don't want their clients to level with them. Not knowing the truth makes it easier to avoid the ethical issue.

8: Standard 4-3.2 of the ABA Standards of Criminal Justice:

(a) As soon as is practicable, defense counsel should seek to determine all relevant facts known to the accused. In so doing, defense counsel should probe for all legally relevant information without seeking to influence the direction of the client's responses.
(b) Defense counsel should not instruct the client or intimate to the client inn any way that the client should not be candid in revealing facts so as to afford defense counsel free rein to take action which would be precluded by counsel's knowing of such facts.
First, let me disclose that I am not a member of the ABA (for various reasons which need not be discussed here).

Second, the part about never knowing what the truth is - not even when a client has confessed his guilt is bogus. (A) Anyone who has done this sort of work for any period of time knows that a number of confessions are garbage (although it is near impossible to know exactly how many). We've all had cases where the client wrote "what the officer told me;" my worst case along these lines was when a client of mine with serious mental issues wrote and rewrote the confession several times at the Detective's prompting until he wrote exactly what the Detective wanted in it. Strangely enough - at least in the communities I practice in - these sessions are never videotaped so my client's claim that he wrote what the officer told him to cannot be verified (and the judge always sides with the officer).

(B) Multiple stories: here's a conundrum I've run into several times: as your representation progresses the client tells you 3 different stories. Each is prefaced by "O.K., this is what really happened" and the third meshes pretty much with the prosecutor's theory of the case. When you get to trial it becomes obvious that story number 2 will work better in his defense. Client, not being a total idiot, decides that he wants to tell story number 2 and now swears that he just made up story 3. You don't believe him but you don't know because you weren't there and you know your client has told multiple tales. Do you do a noisy withdrawal or allow him to testify? My answer is that I am not the trier of the facts; I am this man's advocate and he has a constitutional right to testify. Therefore, he testifies.

(C) I've only had one client admit to a crime in my presence and then expect me to defend her on a theory contrary to that confession. Of course, the thing I ran into was that I figured out that at least part of her "confession" was a lie and she told me and anybody who would listen so many different stories that I did not feel that I knew what the truth was. I had a belief based upon my judgment of which parts of which stories were true but I couldn't stop her from testifying based upon my belief. The prosecutor got so upset that - after having impeached her stringently on cross - he went and got a copy of the Virginia ethics rules and tried to get me to do a noisy withdrawal - I declined.

Third, it is not "conventional wisdom" that a defense attorney should "press the client hard for the truth to avoid being surprised at trial." At least it's not in any of the jurisdictions where I practice. Let's deconstruct that. To begin with, it is disingenuous to state that the reason for this rule is to avoid surprise at trial. Clients are, in the majority of cases, bright enough to tell you when they have confessed, who else is involved, and what evidence the officer took from their person, car, or home. That eliminates 95% of the chance that surprise involving major evidence will occur. The standard we all claim to believe in is beyond a reasonable doubt and the burden of proof lies with the prosecution. Why then must I know the "truth" from my client? The only reason I can think of is to limit my options while defending him. It keeps me from raising that reasonable explanation which the prosecutor has not excluded but which I know is not true. In other words assume there is an equal chance that my client has committed the robbery or that the kid across the street did. I have interrogated my client until he tells me that he did it. The prosecutor, grudgingly, gives me the information that the other kid was the person first suspected but he was dropped for some reason I consider (and think a jury will consider) non-dispositive. Of course, the prosecutor does not call the other suspect to the stand because the other suspect proves no element of his case and I cannot call the other suspect to the stand. Although there is a reasonable explanation which has not been excluded by the prosecution the jury will never hear of it.

My opinion? This is the point where ethics and malpractice part ways. It may or may not be "ethical" to act in this manner but it damn sure is malpractice. Thru my actions I have lessened the prosecutions burden of proof considerably and quite possibly condemned my client to imprisonment which he should not have suffered.

** Yes, although I have not checked it, I am quite sure this is not the proper blue-book format. One of the joys of being a trial lawyer rather than a professor or student is that I only have to worry about whether the information is conveyed not whether commas are in the right place or the right section of the citation is italicized.

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