Michigan Law Review
In almost any area of legal counseling and advocacy, the lawyer may be faced with the dilemma of either betraying the confidential communications of his client or participating to some ex-tent in the purposeful deception of the court. This problem is no-where more acute than in the practice of criminal law, particularly in the representation of the indigent accused. The purpose of this article is to analyze and attempt to resolve three of the most difficult issues in this general area:
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?
These questions present serious difficulties with respect to a lawyer's ethical responsibilities. Moreover, if one admits the possibility of an affirmative answer, it is difficult even to discuss them without appearing to some to be unethical. It is not surprising, therefore, that reasonable, rational discussion of these issues has been uncommon and that the problems have for so long remained unresolved. In this regard it should be recognized that the Canons of Ethics, which were promulgated in 1908 "as a general guide," are both inadequate and self-contradictory.
Monroe H. Freedman,
Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469
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