Defense Attorney
Q.May a criminal defense attorney ethically do the following? 1. Vigorously challenge the reliability or credibility of a rape victim on cross-examination when the defense attorney knows that the woman has testified truthfully. 2. Put his or her client to the stand knowing that the client intends to lie. 3. Advise a client regarding potential defenses to a crime before finding out the facts of the case even though this may lead the client to lie about the facts so as to take advantage of one of the described defenses (e.g., the Jimmy Stewart scenario from Anatomy of a Murder).
A.1/ Ethical. Any good defense attorney (in my books, at least), WILL NOT know for sure if the woman is testifying truthfully. There are so many aspects which effect the truth of a statement - whether or not the person is fabricating a story (lying), whether or not the person is not telling the entire story (deception by omission), and the inherent flaws of eye witness testimony. The fact is, the defendant has the RIGHT to be defended. Furthermore, the issue as to whether or not the witness is lying is not the determination of the attorney, but of the judge and/or jury. And the judge and/or jury has the right to know about the credibility and reliability of any witness - whether or not they are currently "telling the truth". Not to bring up points of creditability and reliability would be unethical, because the jury has the right to know the facts surrounding a situation, not just the facts of the situation itself. 2/ Prima facie, this is not only unethical, but possibly illegal. It could be illegal because the attorney would know that a crime is occurring, and thus not be reporting it. However, many defense attorneys avoid this issue very skillfully. It goes back to how anyone actually KNOWS the person is lying. Whether or not a person is lying comes down, in some degree, to a subjective examination of the person and their statements. Often times an attorney might not even ASK their client what happened, so that the attorney does not "know" if their client will later lie about it on the stand. As to whether or not that is ethical, it most likely is - by attorney standards, though perhaps not by normal society standards. However, most attorneys won't put their client on the stand if they know their client intends to lie. Finally, the biggest grey area here for me is the idea that an attorney does not always have control of their client. A client may DEMAND to take the stand with the intention of lying. An attorney may know that, but not have much they can do about it. The fact is, a defendant has the right to take the stand in their own defense. The do not, however, have the right to lie. The shade of grey here falls into the attorney-client privilege - the attorney may "know" the defendant is lying, but to release such information to the police could be violating the attorney-client privilege. The alternative to this, however, is to step aside as the person attorney, which effectively limits the attorney's responsibility for the actions of their client. Some judges, however, won't allow that to happen well into a case. So, there is definitely a shade of grey on that question. 3/ Ethical. The attorney has not control over whether or not a client lies about things. In fact, an attorney might advise a client like this in order to avoid the legal/ethical dilemma I just described above. If the client knows the potential defenses to a crime, chances are they will start lying then - to their own attorney. It prevents the attorney from "knowing" the person lies later on. In addition, a client has the right to know the types of defenses available to them regardless of their involvement in a crime. It is an attorneys job to provide such information.
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