When I Was Just a Baby, My Mama Told Me, Son/Always Be a Good Boy . . .

. . . but I internalized the norms of the legal profession early. I first became a lawyer at Badger Boy’s State. My first case was to defend a floormate who was accused of throwing water out a window on a counselor. I knew he did it because I was there. I also knew that he was far enough from the window that he could not be identified. Great cross (for a 17 year old) and an acquittal. Since then, I haven’t been clean a day in my life. My name is Rick E., and I believe in the adversarial system . . . .

I’m not stalking Mr. Samis through the Blog, but his post on the demands of confidentiality when a client has disclosed evidence of a past crime reflects a timeless ethical dilemma. Here’s another good one.

Assume that your client has told you that he committed the crime. You now can’t call him to deny it, but you were probably never going to do that anyway. How else should that impact the way in which you present a defense?

Say there is an eye witness who claims (as you now know, accurately) to have seen him do it? Do you point out the weaknesses of her testimony on cross? That one may be easy; the prosecution must prove its case. But do you go after her credibility? Suggest she is lying? Conjure up a motive for her to do so? Should you call witnesses other than your client to attempt to suggest what you know to be a false version of the crime?

I don’t teach ethics and had very little experience as a criminal defense lawyer.  Even if the trial strategy is permitted, is it right? What would be the cost of restricting it?

This Post Has 4 Comments

  1. Andrew Golden

    I think the cost would be tremendous. I fail to see what the ethical horror is about making reasonable challenges to a witness’s testimony.

    In your example above, tell me: how exactly do you know that the “eyewitness” saw your client commit the crime? You assume, Professor, that it’s accurate because you know he did it. But that’s not what she’s testifying to; she’s testifying that she SAW it. And, if you want to get technical, she’s testifying that she saw someone of the same height, weight, race, hair color, etc. commit the crime, and that it was her opinion that it was the defendant. So even if we assume it’s unquestioned fact that he did it, how do you KNOW, pray tell, that she’s the one who saw him do it? And, while we’re at it, how do you know the client is telling you the truth? I’ve seen clients lie to my face to protect other people, or because they would be embarrassed to admit it wasn’t them. It’s not completely impossible to suggest (ESPECIALLY in criminal defense) that a client would bend the truth to his attorney. How can you take it as gospel?

    One of my supervising attorneys at one of my internships gave me some very sage advice once. He said to me, “Don’t assume anything about anything. If you can’t see it, question it. If you can see it, ask yourself how you know you’re seeing it. And if you can see it, and you know how you’re seeing it, ask yourself how THEY know you’re seeing it that way.” I’ll use the same example Professor Blinka gave my Evidence class: take a 20 ounce bottle of Pepsi and take off the label. If someone you didn’t know handed you that bottle and told you it was Pepsi, would you blindly believe them? Or would you challenge that assertion? Most people would question it until they could authenticate it as Pepsi. I don’t think you should treat the law any differently than you’d treat what you ingest, should you?

  2. Richard M. Esenberg

    Please keep in mind that I’ve taken no position.

    But I am the master of my own hypothetical and I don’t want to dilute the ethical problem by radical skepticism. Assume that it is an armed robbery of a convenience store with a sole perpetrator. She’s the clerk. He told you he did it. She says it was him. Unless you’re racked with the kind of metaphysical uncertaintly that is normally associated with too much intoxicant, I don’t think you can just assume that away.

    Now what do you do?

    Do you challenge the accuracy of her observation, say cross her on the lighting, how scared she was, etc.? That strikes me as the easiest because the state still must prove its case. I would do this.

    Do you challenge her credibility? Perhaps your client is black and she is white and you want to suggest that she would identify any black suspect. What if you found a witness who says that she was always complaining about how scary all the store’s African American customer looked to her? What if she told the witness that all of these guys looked the same to her. (There are problems with getting that testimony in, but there are ways.) While you could say that this is just like my prior example, I am beginning to feel uneasy.

    How about suggesting that she is lying?Perhaps she had a prior and unhappy relationship with your client and you want to suggest that she is blaming him as an act of revenge. Now I am very uneasy, but maybe there is a way to do it. Should it matter, for example, if all you do is bring out the facts from which the jury might infer a motive to lie and avoid any direct accusation?

    How about calling alibi witnesses? If your client is telling the truth, then they must be lying. What do you do? Here, I stop. This seems to be suborning perjury.

    At one point, you seem to suggest that your role is to believe nothing. I’m the lawyer and I am not supposed to make any assessment about what’s true and what isn’t.

    I think of this as sort of a competency/jurisdictional approach and I think that, at least in certain circumstances, it’s a useful way to look at things. In my limited criminal defense career (all pro bono), I never asked clients if they were guilty. (Alan Dershowitz taught me not to.) Although I had exactly one client who I believed did not do it, I felt comfortable that the call was not mine to make and I could comfortably be agnostic on the matter.

    But that’s not this case. Is it reasonable way to ignore what your client has told you? Is it consistent with lawyers’ ethical questions?

    Remember. I ask. You decide.

  3. Andrew Golden

    Well, first, if I were in that situation, I might listen a bit more intently to the plea offer 🙂

    Jokes aside, there will be, of course, some scenarios you just can’t rationalize a defense out of. But your question seemed to go to more whether it would be ethical to attempt to negate a witness you suspect might be telling the truth, and my point was only that the amount of information that is unquestionably, undeniably known is very minute. I don’t find anything unethical in raising inferences. She could very easily be mistaken. If the lighting wasn’t good, if her description was a broad one, if she is an incredible (meaning not credible, not amazing) witness, why not bring that up?

    Hey, the facts are the jury’s domain; if they don’t buy what I’m suggesting, they can convict my client. All I’m saying — and this is merely the opinion of a 3L with some criminal internships, so take that for what it’s worth — is that there’s nothing wrong with saying “The State would like you to think that this is a clear-cut case, but it isn’t, and here’s why . . .” Then again, I’m decidedly more aggressive than my peers, so I acknowledge that not everyone would do what I’m saying I’d do.

  4. Sean Samis

    Unlike Andrew, I am a sniveling 2L with no criminal experience whatsoever. But I gotta ask my more experienced and learned collegues: what is the risk that a zealous defense will appear to the jury to be an obnoxious assault on a credible witness, and that those ill-feelings will impact the jury’s findings? We hope of course that the jury will follow the law, but on the other hand we know they are ordinary citizens who are likely to sympathize with a stand-up witness. Is it wiser to press only reasonably and cautiously? Which path best serves your client’s interests?

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