Why? For one thing, truth is hard to come by. Defendants often don’t trust their lawyers so they lie or they withhold details that are legally important or, scared to death, they forget things. Even worse, some defendants tell the unvarnished truth and that limits the lawyer’s hand. Consider this worst-case scenario – without prejudging the Simpson case. If a defense lawyer knows his client’s whole spiel, he may not be able to put the client on the witness stand. It’s common knowledge that lawyer-client communication is privileged. But there are a few arcane exceptions even to that rule. In the eyes of the law – and the many authorities that shaped it – there are a few things more important than protecting a client’s secrets. One is not lying to a judge. So, in most jurisdictions, if a lawyer knows that his client will perjure himself, he must refrain from putting him under oath. If the lawyer takes a chance, and the ungrateful mope lies anyway, the lawyer may have to disclose that damning fact to the trial judge. That’s humiliating for the lawyer – and fatal for the client.
So what’s a conscientious lawyer to do? Children recognize the game as one called 20 Questions. At preliminary meetings, the lawyer carefully questions the client for information. What did the police charge you with? Did they take anything from you (like blood)? Did they mention any witnesses? The lawyer gets an impression of the evidence, so he can know the cards he’s been dealt and what the prosecution has to work with. Later, in many states, prosecutors are required to turn over evidence and witness lists, but by that point the defense should have already planned a spin to put on the case.
As any good police detective knows, defendants who aren’t sociopaths often feel the need to confess. Many defense lawyers, though, have no interest in being priests; they want to get acquittals, not to give absolution. Author Kenneth Mann, who has studied white-collar criminal-defense lawyers, calls this “controlling the client’s dialogue.” At lawyer-client interviews, according to Mann, when a defendant starts to blurt out damaging information, some lawyers interrupt and say, “Stop, I don’t want to hear about that.” Even a defender as formidable as the late Edward Bennett Williams, a man who prided himself on knowing everything in a case, preferred to dig out facts from investigation rather than interrogation.
After some preliminary interviews, some lawyers like to deliver “the Lecture.” This gambit was made famous in the movie “Anatomy of a Murder,” and is widely cited by practicing lawyers. In the pivotal scene, defense lawyer Jimmy Stewart is advising defendant Ben Gazzara. “There are four ways I can defend murder,” Stewart says. It was not murder; you didn’t do it; the killing was justified, or the killing was excusable. “You don’t fit in any of the first three,” Stewart says. Gazzara asks, “What are you telling me to do?” And Stewart says: “I’m not telling you to do anything. I just want you to understand the letter of the law.”
A lawyer must not lead his client to concoct a story – that would be wrong. But a lawyer can explain, as Stewart did, what the legal consequences of different defenses might be. If the client then tailors his story to fit the law, well, the lawyer doesn’t know that the client is lying. “I want to let the client know what the best possible defense is and then let the client tell me what, if any, role he wants to play in presenting the defense,” says Gary Kohlman, a Washington, D.C., trial lawyer.
Monroe Freedman is an expert in legal ethics who thinks the consequences of the Lecture are “obviously perjurious.” Freedman believes it’s impossible for lawyers to balance the duties of confidentiality to clients and candor to the court: a lawyer who might blow the whistle on a client can’t hold his trust. Instead, Freedman, who believes that “90 percent” of defense lawyers use perjured testimony, would allow lawyers to put clients on the stand and let them lie. In his view, the Constitution’s protection against self-incrimination includes the right not to have lawyers reveal incriminating statements defendants make in confidence. But, counters David Luban, in his book “Lawyers and Justice,” “the right against self-incrimination is a right to keep silent, not a right to lie.” The client is never compelled to take the witness stand.
What does the lawyer do if the client blurts out in confidence: “I did it! But I want you to defend me anyway!” The lawyer keeps working. As Michael Tigar, who teaches at the University of Texas, explains, that confession might be inaccurate, it might lead to a guilty plea or it might be ignored. The burden at trial is on the prosecution. Maybe the defendant did it, but if the state can’t prove its case beyond a reasonable doubt, the state loses and our system, as we’ve constructed it, wins.
title: “Don T Ask Don T Tell” ShowToc: true date: “2022-12-25” author: “Von Travers”
Why? For one thing, truth is hard to come by. Defendants often don’t trust their lawyers so they lie or they withhold details that are legally important or, scared to death, they forget things. Even worse, some defendants tell the unvarnished truth and that limits the lawyer’s hand. Consider this worst-case scenario – without prejudging the Simpson case. If a defense lawyer knows his client’s whole spiel, he may not be able to put the client on the witness stand. It’s common knowledge that lawyer-client communication is privileged. But there are a few arcane exceptions even to that rule. In the eyes of the law – and the many authorities that shaped it – there are a few things more important than protecting a client’s secrets. One is not lying to a judge. So, in most jurisdictions, if a lawyer knows that his client will perjure himself, he must refrain from putting him under oath. If the lawyer takes a chance, and the ungrateful mope lies anyway, the lawyer may have to disclose that damning fact to the trial judge. That’s humiliating for the lawyer – and fatal for the client.
So what’s a conscientious lawyer to do? Children recognize the game as one called 20 Questions. At preliminary meetings, the lawyer carefully questions the client for information. What did the police charge you with? Did they take anything from you (like blood)? Did they mention any witnesses? The lawyer gets an impression of the evidence, so he can know the cards he’s been dealt and what the prosecution has to work with. Later, in many states, prosecutors are required to turn over evidence and witness lists, but by that point the defense should have already planned a spin to put on the case.
As any good police detective knows, defendants who aren’t sociopaths often feel the need to confess. Many defense lawyers, though, have no interest in being priests; they want to get acquittals, not to give absolution. Author Kenneth Mann, who has studied white-collar criminal-defense lawyers, calls this “controlling the client’s dialogue.” At lawyer-client interviews, according to Mann, when a defendant starts to blurt out damaging information, some lawyers interrupt and say, “Stop, I don’t want to hear about that.” Even a defender as formidable as the late Edward Bennett Williams, a man who prided himself on knowing everything in a case, preferred to dig out facts from investigation rather than interrogation.
After some preliminary interviews, some lawyers like to deliver “the Lecture.” This gambit was made famous in the movie “Anatomy of a Murder,” and is widely cited by practicing lawyers. In the pivotal scene, defense lawyer Jimmy Stewart is advising defendant Ben Gazzara. “There are four ways I can defend murder,” Stewart says. It was not murder; you didn’t do it; the killing was justified, or the killing was excusable. “You don’t fit in any of the first three,” Stewart says. Gazzara asks, “What are you telling me to do?” And Stewart says: “I’m not telling you to do anything. I just want you to understand the letter of the law.”
A lawyer must not lead his client to concoct a story – that would be wrong. But a lawyer can explain, as Stewart did, what the legal consequences of different defenses might be. If the client then tailors his story to fit the law, well, the lawyer doesn’t know that the client is lying. “I want to let the client know what the best possible defense is and then let the client tell me what, if any, role he wants to play in presenting the defense,” says Gary Kohlman, a Washington, D.C., trial lawyer.
Monroe Freedman is an expert in legal ethics who thinks the consequences of the Lecture are “obviously perjurious.” Freedman believes it’s impossible for lawyers to balance the duties of confidentiality to clients and candor to the court: a lawyer who might blow the whistle on a client can’t hold his trust. Instead, Freedman, who believes that “90 percent” of defense lawyers use perjured testimony, would allow lawyers to put clients on the stand and let them lie. In his view, the Constitution’s protection against self-incrimination includes the right not to have lawyers reveal incriminating statements defendants make in confidence. But, counters David Luban, in his book “Lawyers and Justice,” “the right against self-incrimination is a right to keep silent, not a right to lie.” The client is never compelled to take the witness stand.
What does the lawyer do if the client blurts out in confidence: “I did it! But I want you to defend me anyway!” The lawyer keeps working. As Michael Tigar, who teaches at the University of Texas, explains, that confession might be inaccurate, it might lead to a guilty plea or it might be ignored. The burden at trial is on the prosecution. Maybe the defendant did it, but if the state can’t prove its case beyond a reasonable doubt, the state loses and our system, as we’ve constructed it, wins.
