A Legal and Ethical Puzzle: Defense Counsel as Quasi Witness
By Elizabeth Slater
The U.S. criminal justice system is built on the concept of an adversarial trial. The defense and prosecution present competing narratives to a neutral audience that judges whether the prosecution has proved its case beyond a reasonable doubt. In this context, defense counsel is expected to be a zealous advocate for the defendant, providing the most effective representation possible in light of the evidence presented by the government. However, there are occasions outside of trial where defense counsel’s traditional role changes and she is asked to disclose, not to the jury, but to the court, personal opinions and knowledge about her client and the attorney-client relationship.
This Note argues that during these occasions, defense counsel becomes a “quasi witness.” Even though she is not presenting testimony at trial, she is still providing information about her client to the judge. Indeed, the duties of confidentiality and loyalty that defense counsel owes her client are pitted against those she owes the court, spawning a serious ethical dilemma. This Note examines this dilemma and the potential damage that it can cause to the attorney-client relationship. Ultimately, this Note proposes several mechanisms for limiting the disclosures needed from defense counsel but argues that now that the category of quasi witness has been identified, a more profound debate within the profession is warranted.