Candor in Criminal Advocacy

[I]t is precisely when one tries to act on abstract ethical advice that the practicalities intrude . . . .
– Monroe H. Freedman

Monroe Freedman’s 1966 article on the three hardest ethics questions for criminal defense lawyers has lost none of its vitality. Most notably, the article asked whether defense lawyers may knowingly present false testimony—a question to which Freedman returned on subsequent occasions, and which continues to vex lawyers and judges. Freedman also examined whether defense lawyers may discredit truthful prosecution witnesses on cross-examination and whether defense lawyers may give legal advice that would tempt their clients to concoct false stories. These questions are hard because they present a tension between abstract principles, such as that a lawyer is an “officer of the court” and that a trial is a search for truth, on the one hand, and that a criminal defense lawyer is the client’s agent, confidant, counselor, and advocate, on the other. When Freedman explored the three questions, there was no professional consensus on their resolution. The general principles expressed in the 1908 American Bar Association (“ABA”) Canons of Professional Ethics, and the other prior writings to which Freedman referred, provided no clear answers. Freedman’s analysis, rooted in both his philosophy of legal representation and his practical experience as a defense lawyer, led him to conclude that in each case the lawyer’s duties to the client should be paramount.

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