Dishonest Ethical Advocacy?: False Defenses in Criminal Court

By Joshua A. Liebman

Abstract

Our criminal justice system aims to acquit the innocent and convict the guilty.  To facilitate these just outcomes, attorney ethics rules require criminal defense attorneys to defend clients with the utmost loyalty and zeal while taking care never to engage in dishonesty, fraud, or misrepresentation.  When a defense attorney knows a client is guilty, these competing ethical duties present a 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 this dilemma and recent judicial approaches to it.  Judges disagree about how guilty criminal defendants should be permitted to mount defenses at trial.  Some have forbidden defense counsel from knowingly advancing any false exculpatory proposition.  Others have permitted guilty defense attorneys to present sincere or truthful testimony in order to bolster a falsehood.  And still others have signaled more general comfort with the idea that an attorney aggressively can pursue an acquittal on behalf of a guilty client.

This Note seeks to resolve this issue by parsing the range of false defense tactics available to attorneys and evaluating the propriety of each under the Model Rules of Professional Conduct.  This Note reads the Model Rules in the context of the adversary system’s twin aims to seek truth and safeguard individual rights; it defines and categorizes specific false defense tactics; and it offers practical, context-specific recommendations to courts and attorneys evaluating knowingly false defenses as they occur in the real world.

Rather than accepting or rejecting false defenses wholesale, this Note argues that the best reading of the Model Rules permits some false defense tactics and prohibits others.  Specifically, this Note distinguishes false defenses that adduce or rely on evidence known to be false from others that do not:  the former violate the Model Rules, while the latter comport with them and facilitate the adversary system’s proper function.  This distinction accounts for important ethical differences between false defense tactics and provides a workable, practical framework through which courts can determine precisely how and when defense counsel should be allowed to advocate on behalf of a guilty client.