Defense Lawyers and Truth: Just Where Do They Meet?

<i> Susan Estrich, a contributing editor to Opinion, is a law professor at USC. She served as campaign manager for Michael S. Dukakis in 1988</i>

Look around the courtroom in a criminal trial and almost everyone is bound by one oath or another to tell the truth: the witnesses, of course; the jury and the judge, bound to find the truth; the prosecutor, whose lying can lead to reversal in the appeals court and at the polls; even members of the press, who can be sued for libel. The one person not pledged to tell the truth, seek the truth, let alone be bound by it, is the defense attorney.

For me, the only question that matters in the O.J. Simpson case is whether he did it. Everything turns on that. For Robert L. Shapiro and Johnnie L. Cochran Jr., Simpson’s lawyers, nothing turns on it. Their job is to get Simpson off, innocent or guilty. If he’s innocent, that means advocating the truth. If he’s guilty, it means attacking it.

Criminal defense lawyers are not supposed to put witnesses on the stand who they know will commit perjury; of course, many criminal defense lawyers claim they’re incapable of ever really knowing anything. They can’t hide the murder weapon in their desk drawers, though they’re not obligated to pick it up. Other than that, they’re pretty free to obstruct the search for truth in any way they can, within the rules of evidence.


Witnesses are fair game--even if they’re telling the truth. So is every piece of evidence, and every scientific test, even if it was accurately performed. You can impeach the person who found the evidence, question whether it was securely maintained, debate the accuracy of the test, undermine the reliability of the lab--even if you know, all the time, that the witness is telling the truth about where he found the evidence, it is your client’s hat and the test turned up the right answer. You have an absolute right to libel anyone in the courtroom; Det. Mark Fuhrman’s suit against the Simpson legal team is premised on what they said outside of court, in the public “trial.”

Of course, in most criminal cases, these are just theoretical possibilities. Most defendants are lucky if their lawyer has time to investigate possible true defenses, much less mount false ones. Most defendants can’t afford their own investigators and scientists and forensic experts and criminalists. Most defendants can’t afford a million-dollar defense. There’s a real question if they even get an adequate one.

Simpson’s life and liberty are on the line. He has a right to spend whatever he has on his defense. The question is: What can it buy him? Simpson is presumed innocent. He may indeed be innocent. I hope he is. But some of those who can afford a million-dollar defense are guilty in fact. Should it matter? Does a million dollars, under the current rules, with a smart lawyer and a well-selected jury, buy you a reasonable doubt?

The explanation academics offer for the “different mission” of criminal lawyers that allows them such latitude with the truth is the adversary system of justice. The way we find truth, and protect the innocent, in an adversary system of justice is by putting the government to its proof, by arguing each point, each fact.

Certainly, no one questions the right of an attorney to attack the credibility of witnesses who are lying, or attack the validity of tests he believes are inaccurate. No one doubts his right to argue to the jury that lies are lies, or that facts are true. No one, in short, is seeking to limit the advocacy of an attorney attacking a prosecution case that is untrue and defending an innocent man.

The harder question is why he is allowed to do these things when their purpose is to obfuscate the truth, to create doubt--and he knows that, or would if he allowed himself to “know” anything. Does every man deserve a defense, even if the only ones available are false defenses? How does it make truth-finding better when a lawyer undermines a truthful witness? If the rape victim is telling the truth, do you get to destroy her anyway? How does it help the jury do its job if you tell them that in is out or up is down or lies are truth.

Nor is it an answer that defense lawyers can’t “know” anything, that they’re not truth finders, and shouldn’t be. That’s the answer you most often hear from practicing lawyers about why any system limiting their advocacy makes no sense. But the ethics codes all reject that: It’s well-established that a defense lawyer can’t put a witness on the stand if he knows that witness will commit perjury--a line that turns precisely on a lawyer’s ability to know the difference between truth and lies.

“Don’t ask, don’t tell” may be the posture lawyers take about their client’s guilt; but the same lawyers who try to persuade you, for ethical purposes, that they know nothing will turn around and brag they never try a case unless they know everything, and they can tell when someone is lying. Proving and disproving facts, persuading jurors of truth or falsity, is what lawyers do. We have a whole system of rules for doing it. It doesn’t follow that lawyers are incapable of applying those rules for themselves.

Finally, there’s the question of a defendant’s right. When the power of the state is arrayed against you, and your liberty is on the line, do you have a right to have someone on your side who will fight for you, argue for you, even twist facts, distort evidence and attack the truth for you? What are the limits on a lawyer’s role as secular confessor?

There’s no question what defendants want. Every defendant wants a lawyer who will go to the wall--and over it--for him. That’s what they mean when they talk about getting a “good” lawyer.

It’s also what most good lawyers want to do. It serves their client’s interest. It is part of being a “gladiator.” It is sometimes the only way they can win. It does not necessarily serve the public interest.

These are not just questions for lawyers to resolve in codes of ethics. More is at stake than just the relationship between a lawyer and his client. This is also about how the criminal-justice system works. It is certainly bound to come up as Americans everywhere tune in for their next installment of Criminal Justice 101.