Dishonest Ethical Advocacy?: False Defenses in Criminal Court

Abstract

Our adversary criminal justice system aims to acquit the innocent and convict the guilty. In order to facilitate these just outcomes, the ethics rules governing attorney conduct call upon criminal defense counsel to defend their clients with the utmost loyalty and zeal while taking care never to engage in dishonesty, fraud, or misrepresentation. Defense attorneys rarely know to a certainty if their clients are innocent or guilty. But when they do, these competing ethical duties present a pressing dilemma: how and when, if at all, do the rules of professional conduct permit or even require an attorney knowingly to defend a guilty client?This Note examines the false defense dilemma and recent judicial approaches to it. The federal judiciary is in disagreement on the extent to which guilty criminal defendants can mount defenses at trial. Some judges would forbid defense counsel from advancing any exculpatory proposition that the attorney knows to be false. Others would permit guilty defendants to present sincere or truthful testimony intended to convince the fact finder of a falsehood. Finally, still others have signaled more general comfort with the notion that an attorney knowingly can pursue an acquittal on behalf of a guilty client without violating ethics rules.This Note seeks to resolve the issue by parsing the range of false defense tactics that defense counsel may seek to employ in court and evaluating the propriety of each under the relevant Model Rules of Professional Conduct. It reads the Model Rules in the context of the adversary system’s twin aims to seek truth and safeguard individual rights; defines and introduces specific false defenses; and offers detailed, context-specific recommendations for courts and attorneys seeking to evaluate knowingly false defenses as they occur in the real world. In short, rather than accepting or rejecting knowingly false defenses across the board, this Note concludes that the Model Rules best are read to permit them in certain circumstances and prohibit them in others.Specifically, this Note distinguishes false defense tactics that adduce or rely on evidence known to be false from those that do not: the former violate the Model Rules, while the latter comport with them and serve to ensure the adversary system’s proper function. This distinction accounts for important ethical differences between false defense tactics and provides a workable and practical framework by which courts can determine precisely how defense counsel should be permitted or prohibited to advocate on behalf of a guilty client.