Counsel: Role of Counsel

It seems likely that popular revulsion to the defense counsel arises partly from a kind of irrational transference—a projection of revulsion for the client onto the client's lawyer. It has another, more rational, source as well, however. That is the concern, dating back to Plato, that lawyers win cases by perverting the truth. When clients are guilty, how can it be otherwise? If the client is guilty, the defender labors mightily to keep damning evidence away from the judge or jury. The defender tries to discredit opposing witnesses, often by making them seem like liars or fools, even when the defender knows that they are telling the truth. In addition, the defender will try to sell the judge or jury on some alternative story that—supposing the client is guilty—is false: that the robber was elsewhere at the time, or that the rape victim consented to sex, or that the police planted the incriminating evidence, or that the killer was acting in self-defense. In the extreme case, the defender will try to pin the blame on someone else, combining the injustice of freeing the guilty with the far greater injustice of framing the innocent.

Defenders justify these practices by reminding us that the prosecution bears the burden of proving each and every element of a crime beyond a reasonable doubt. When defenders brutally cross-examine truthful prosecution witnesses, their purpose is to expose reasonable doubts a judge or jury might entertain about the witnesses' testimony, including truthful testimony. After all, if the witness lacks credibility, a conscientious jury should find reasonable doubt even if the witness happens to be telling the truth. Similarly, when the defender vigorously argues that the evidence supports an alternative story, even one that the defender knows is false, the argument is a valid tactic because it raises reasonable doubts about the prosecution's case. Jurors will never find reasonable doubt if the defender merely argues the abstract possibility of doubt; that is why defenders argue concrete alternative stories—not because they are true, but because they are consistent with the evidence and reasonably plausible, which should suffice for acquittal. Of course, the defender will not explicitly say, "My client's alibi may not be true, but on this evidence it could very well be true": such an admission would cause jurors to discount the alibi and convict even in the face of reasonable doubt. The defender will behave as though the alibi is true, because that is the only way to ensure that jurors vividly perceive that there are reasonable doubts about the prosecution's case. The defender's battle against truth is part of a larger war for justice.

There is much to be said for this argument. However, it fails to justify some of the defender's favorite tactics.

Misleading investigators and prosecutors. Particularly in the defense of white-collar crime, where arrest and indictment are typically preceded by lengthy investigation, defenders devote most of their efforts to forestalling the indictment. Defenders will caution potential witnesses that cooperating with prosecutors may be bad for their business careers. They will try to coordinate the stories of all the targets of investigation, and persuade them to stonewall investigators. Avoiding overt lies, defenders will shower prosecutors with half-truths to throw them off the track. And, in order to avoid being put in the position of lying to prosecutors, they will intentionally refrain from asking their clients questions when hearing the "wrong" answers would prevent them from arguing a plausible falsehood (Mann, 1985). None of these tactics can plausibly be described as merely testing the prosecution's case by raising reasonable doubts. They are attempts to prevent the prosecution from assembling a case in the first place.

Undermining the fairness of the forum. Where it is possible, defenders will "forum shop" for a venue with favorable jury demographics. They will try to disqualify any juror whom they suspect will be skeptical of their defense. And they will energetically seek to delay trials so that witnesses have time to forget details, leave town, or die. (It should not be forgotten, however, that prosecutors also have a formidable repertoire of dirty tricks, and defenders argue that they are merely fighting fire with fire.)

Playing to bias and emotion. The defender will make sure that the accused arrives for trial neatly coiffed, cleanly shaven, and dressed in a suit and tie (which actually may belong to the defender); the defendant's sweet, sorrowful wife and adorable children will be arrayed behind him, even if in reality he deserted them months before. The exploitation of appearance and manipulation of emotion have always been the defender's stock in trade. When Phryne, the most famous and beautiful courtesan in classical Athens, was tried for impiety, her defense counsel Hyperides delivered the greatest oration of his life. But, observing that the jury remained unmoved, Hyperides dramatically bared Phryne's breasts and secured her acquittal by telling the Athenians that it would be sacrilegious to condemn Aphrodite's own representative among mortals (Davidson, p. 134). Today, mafia lawyers borrow stirring paragraphs from the speeches of Martin Luther King to defend charismatic but murderous dons, and demagogic defenders play the "race card" to secure acquittals in racially charged cases (Dannen). Two thousand years ago, Plato's Apology and Gorgias criticized trials and lawyers for substituting emotionalism and sentiment for truth, and today as in Plato's time this criticism remains fundamental.