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Journal of the Institute for the Study of Legal Ethics

Publication Date

10-1-1996

Introduction

Just short of 30 years ago, a man who has been for some years a prominent member of this University's law faculty, published one of the most famous law review articles ever written. Then on the George Washington law faculty, Monroe Freedman shocked many members of bench, bar, and academy with his affirmative answers to what he labeled "the three hardest questions":

1. Is it proper to cross-examine for the purpose of discrediting the reliability or credibility of an adverse witness whom you know to be telling the truth?

2. Is it proper to put a witness on the stand when you know he will commit perjury?

3. Is it proper to give your client legal advice when you have reason to believe that the knowledge you give him will tempt him to commit perjury?

Without making a statistical check, it is safe to say that few, if any, law journal essays have led to as much debate, attack, and quotation in texts. The outraged responses descended to an assault by several judges, with then Judge Warren E. Burger notably among them, proposing Professor Freedman's suspension or disbarment. The furor may be taken as testimony to some courage on Professor Freedman's part in supporting positions so likely to draw fire from respectable people.

Whatever accounts for the interest in Professor Freedman's foray has not abated. Despite the general rejection of his position, important defenders still appear.3 One has the uneasy feeling, moreover, that the key choice Freedman posited - between helping and deserting a perjurious client - has never found a happy resolution. In any event, whatever any other "one" has been thinking, I have not found for myself an easy way to answer his questions. The generous invitation to participate in this Symposium served to supply a good occasion to revisit the subject and settle it, at least for me, once and for all. The consequence was a course of longer and more strenuous brooding than I'd bargained for. And the result, even in my favorably disposed judgment, seems a good deal more modest than all that effort should have achieved.

For better or worse, however, I want to report the result, and burden you in the process with some of the ground I've covered in the course of reaching it. Briefly stated, my conclusion is that Professor Freedman's questions, for all the continuing ruckus they created, are really either moot or immaterial. They have served as substitutes for, or diversions from, a broader and more fundamental question, namely, whether it is good or even acceptable that criminal lawyers, supposedly to defend the rights of the innocent, should routinely and expectably be engaged in thwarting the search for the truth in the courtroom. My answer to that question is No.

Stated in fuller detail, my answer could be framed as a rule. I quote as follows:

It shall be improper for an attorney who knows beyond a reasonable doubt the truth of a fact established in the state's case to attempt to refute that fact through the introduction of evidence, impeachment of evidence, or argument.

Having said "my answer" would follow the quoted rule, I should add instantly that the quotation is from a law journal article published some eight years ago by Professor Harry I. Subin, and that I wound up agreeing with his conclusion after many hours of reading and trying to think. This leads fairly to the question why I should be submitting this additional essay if in the end I simply agree with Professor Subin. My answer is that there are two or three justifications for doing this:

First, and most important, eight whole years after the way was lighted, we seem no closer to accepting Professor Subin's sound conclusion than we were when he stated it. The notion that criminal defense lawyers, of all people, owe a duty not to obstruct the search for the truth remains a heresy, both in theory and in practice.

Second, my different route to Professor Subin's conclusion, and some observations along the way, may add a mite of support to the position.

Third, circuses like the O.J. Simpson trial may trigger sentiments among the laity that lawyers ought to promote rather than obstruct the truth. More of us ought to be prepared to face that contingency.

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