I am employed as a staff lawyer at the public defender service. We handle only certain criminal cases in which the accused are unable to provide their own counsel. I have been assigned to defend a twenty-year-old punk, whom I’ll call George. There is abundant evidence that he has robbed and beaten dozens of people, and now he is charged with murdering an elderly woman who died as the result of his abuse. The police report indicates that when arrested later the same night for another mugging, which was reported by a witness who identified him, George was high and very frightened. By morning he confessed to having robbed and beaten the woman, and signed a statement.
I was assigned George’s case and immediately checked out his confession and how the investigation was conducted. The document gives me nothing to work with in defending him. I am not personally acquainted with the detective who obtained the confession, but I made inquiries and learned that he is one of the most careful and decent people on the force.
When I visited George in jail for the first time, I already was convinced that his only hope was to plead guilty to one or more lesser charges if the prosecutor would drop the murder charge. By then, however, George had regained his composure. He told me that he was “strung out” when he was interrogated, that the detective had taken advantage of him and mixed up different incidents, and that he is innocent of the elderly woman’s death. Since then, he has consistently repudiated that part of his confession and refused to discuss a possible plea bargain on that charge.
George is now about to go to trial for the murder. Given the adversary system under which we operate, I must do everything possible to make some sort of case in this client’s favor and to deflect or destroy the case against him. The only tactic with any hope of success is to impugn the testimony of the detective who obtained his confession. I must get the jury to believe that when George signed the document, he was an inexperienced, worn out, hungry, intimidated youth, who wanted nothing more than breakfast and a bed. (Since he has not been charged previously as an adult and the prosecutor cannot introduce George’s long and telling juvenile record, I will be able to make the most of his youth.) In questioning the detective, I will have to come across to the jury as skeptical and critical of his inquisition of the suspect, hinting that only unfair tactics could have elicited so damning a statement. I will not encourage George to perjure himself, but I will put him on the stand in his own defense, and I expect he will lie convincingly. In my closing argument, I will portray him as the victim and the detective, careful and decent though he may be, as the villain.
I would have no hesitation about all this if this detective were like many I know or if George were a defendant for whom I felt some sympathy. As it is, I wonder whether the morality of my role as defense counsel should not give way to the morality of dealing with a decent fellow human being.
This question calls for the application of norms regarding truthfulness and for the derivation of norms for the work of a criminal defense lawyer. The questioner should provide this client with the most effective defense possible within the bounds of law and morality. The facts as recounted seem to support a reasonable opinion that the client is guilty of murder, but that opinion could be mistaken. The questioner, as defense counsel, should think the client might be telling the truth; on this basis, the questioner may elicit and use his testimony without intending to cooperate in perjury. The questioner may introduce the evidence favorable to the client and convey by appropriate behavior sympathy toward him and skepticism regarding the detective’s account. But the questioner must avoid both lying and deception, and may not ask any question without a good faith basis. In summarizing the case for the defense, the questioner may assert only true propositions that would serve as reasons for finding the client not guilty, and may not make exaggerated claims about what the evidence and testimony imply.
George is entitled to a competent and earnest defense. Having been assigned his case, you must do everything possible to defend him—the possible here, of course, being limited by moral norms as much as by any other limiting condition. Thus, as you suggest, you may not encourage him to perjure himself. Likewise, in questioning the detective who obtained his confession, you may not set morality aside and proceed as though the end—gaining an acquittal—justified any means that might be effective.
Reading your statement of the case, many honest people unfamiliar with the adversary system and the professional responsibilities of lawyers are likely to think you cannot defend George without both lying and being unfair to the detective. In my judgment, however, you can defend your client without doing anything wrong, provided you clarify and rectify your own attitude and thinking about the case and your responsibilities.
It is only natural that some clients elicit your sympathy while others do not, and that some cases arouse your enthusiasm more than others. Likewise, when interviewing a person whose case you have been assigned, you cannot help making your own evaluation of the evidence and forming a favorable or unfavorable impression of the client. However, your concluding remark suggests that you are tempted to allow your personal feelings and judgments to influence how much of an effort you will make on George’s behalf. It would be wrong to give in to that temptation. The justification for your work as counsel for the defense and the norms shaping that work are grounded, not in your personal feelings and judgments, but in the principle that anyone accused of a crime is to be presumed innocent and must be proven guilty, and in the belief, embodied in our system of criminal justice, that the accused needs a competent advocate to make the jury and/or judge aware of anything that might tend to show that convicting and punishing the accused are unwarranted. Therefore, firmly put aside your personal opinions and feelings, keep in mind George’s right to be acquitted unless the state proves his guilt beyond reasonable doubt, and undertake your professional responsibilities as defense counsel with no more hesitation than if this were a client you liked and personally believed innocent.
The purpose of a trial, which you should cooperate in pursuing, is to reach a just verdict grounded in the truth. Even if George in fact is guilty, a guilty verdict will be just only if the admissible evidence supports it and relevant law is correctly applied. And the relevant law is both substantive and procedural, so that if there is any procedural fault in the authorities’ handling of George’s case, you should seek on that basis an order or verdict freeing him.
The facts of this case as you recount them do seem to support a reasonable opinion that George is guilty and has been lying in insisting he is innocent of the elderly woman’s death. That opinion could be mistaken, however, since not even a reasonable and well-founded opinion is knowledge. The distinction may not matter much in some situations, but you must never lose sight of it in deliberating about your professional responsibilities toward any client or potential client. Somewhat as spouses have special reason to trust each other despite evidence of unfaithfulness that other people reasonably take as decisive, defense attorneys have special reason to give their clients the benefit of every possible doubt. Thus, you should suppose that George might be innocent, and you should not assume that his testimony in his own defense will be untruthful.
If George had admitted to you that he is guilty, you would have an entirely different problem. Then, if you put him on the stand, you would expect him either to tell the truth or to perjure himself. Telling the truth would do him no good, and, as his lawyer, you would not recommend it. Perjury would be seriously wrong, and so you could neither cooperate with it nor make use of it in defending him. Therefore, you probably would urge him to plead guilty, but at least not to testify. And if he insisted? You would be obliged to withdraw if you could do so without signaling his guilt. And if you could not withdraw? You would have to tell him that, though you would call him to the stand, he would have to tell his story without your guidance.395
However, if you explain to George that, supposing he is guilty, it would be both wrong and risky to perjure himself, and he continues to insist on his innocence, you should assume that he might be telling the truth. Given that assumption, you will be able to use his testimony in defending him. In calling him to testify, your intention should be: I wish my client to help himself by telling the truth that will tend to exonerate him. With this intention, you may and should proceed despite your opinion that he probably is guilty and will perjure himself, since as his advocate you have the duty, already explained, to give him the benefit of every possible doubt.
May you impugn the testimony of the detective who obtained the confession? You certainly may introduce the evidence that George was in an abnormal state of mind—according to the police report, both “high and very frightened”—and ask whether that may not account for the confession. If George tells you he was mistreated in some respects, you may assume that he might be telling the truth and question the detective about those matters in such a way as to suggest the mistreatment occurred. You also may question the detective closely about each step of his investigation and dealings with George, with the expectation that he will affirm over and over that he perfectly fulfilled his responsibilities. Then, since it is reasonable to assume that no one is perfect, you may question his claim that he did everything perfectly.
To the best of your ability, by your tone of voice, facial expressions, and gestures you may convey sympathy toward your client and skepticism with regard to the detective’s account. While this might seem deceptive, it need not be and can be justified. In the first place, it remains possible either that George is innocent or that his confession is not legitimate evidence against him. Your behavior should express and dramatize this possibility, and thus communicate it effectively to the jury and/or judge, so that they will give it whatever weight it deserves. Second, in acting as George’s advocate, you are expected to set aside your personal feelings and opinions, and instead manifest an attitude as favorable as possible toward your client and as unfavorable as possible toward testimony and evidence tending to convict him. If you fail to do this, your behavior will suggest, falsely, that you concede that George should be convicted, whereas doing it will not constitute the assertion of anything at odds with the truth. Rather, it will suggest one or both of two truths: that you are in a position to give George the benefit of the doubt and that the prosecution’s case may not suffice to ground a verdict against him—which could be true even if he did the deadly deed.
Nevertheless, to avoid lying, you must exercise great care and self-discipline in playing your part.
While your appropriate courtroom behavior need not assert anything false and while you make no straightforward assertions in questioning witnesses, as they generally do in answering questions, you often do make implicit assertions even in asking questions. For example, if you were to ask the detective whether he slapped George’s face, the question would suggest he had done so and would implicitly assert that you had some ground for the suggestion. Without a good faith basis for asking the question, your implicit assertion would be false, and so you would be lying. Therefore, you may not suggest that the detective was guilty of any misconduct unless George alleges it or you have some other basis for supposing he was. Moreover, if you pursue any groundless line of questioning, you must expect either that its groundlessness will become evident or not. If it becomes evident, it will do your client no good and so is excluded; but if it does not become evident, it can be helpful only by being deceptive, and so will be dishonest.
In summarizing your case and offering your final argument, you will make assertions. Here, too, you are expected not to express your personal opinions and attitudes, but to put forward any sound argument and point to any facts helpful to your client. You could say something along the following lines: “Bear in mind that the defendant is only twenty years old, that he admittedly was caught committing another crime, and that he was high and very frightened. Bear in mind, too, that he knew the detective interrogating him was in control of the situation and had at his disposal all the resources of the police department. Then ask yourself: Am I really certain beyond all reasonable doubt that this statement, repudiated shortly after it was made and repeatedly since then, is trustworthy evidence?”
In doing your best, however, you may be tempted to make exaggerated claims about what the evidence and testimony imply. But that would be lying. Thus, you may not say, “The detective’s testimony shows such and such,” unless you really believe it does. Nor will it help to avoid the form of an assertion by putting the deceptive suggestion as a question: “Would not a reasonable person, hearing the detective’s testimony, conclude such and such?” Unless you believe a reasonable person would draw the conclusion indicated, such a question remains a subtle form of lying.
In sum, you may call into question the testimony of a witness whom you believe to be decent and honest, provided you have a basis for doing so and avoid not only outright lying but deception. You must do your best to be an effective advocate for your client, but your role within the adversary system remains subordinate to your responsibility to cooperate in bringing about a just verdict grounded in truth.
395. See American Bar Association, Model Rules of Professional Conduct (1993), Rule 3.3 with comment, “Perjury by a Criminal Defendant.” In my judgment, the proposed alternative solutions are morally unacceptable.