Who did he besmirch?
I think the problem we are facing here is that everything seems to be put on the lawyer. A lawyer has a responsibility to zealously represent a client. Society realizes that this may lead to results it does not approve of, and so imposes restrictions on that representation.
Hence we get the rules of evidence. And those rules are enforced by judges. Judges can exclude evidence, not just under the special rules for evidence in rape cases, but also as mentioned above if it is not relevant (a very low bar admittedly). They also can exclude relevant evidence under rule 403 - if it is more prejudicial than probative.
The system is set up with checks and balances throughout. We on the one hand require lawyers to zealously represent, but on the other we check them with rules of evidence. So the tactics you are talking about should probably be dealt with already by judges - and if they aren’t doing their job properly, it seems that we should be blaming them, not the lawyers.
If saving my innocent client would cause harm to someone guilty?
And why am I to accept your view that there is tension between professional ethics over the societally agreed ethics?
You say there is, offering this example of hurting someone else to save your client. But society is willing to hurt someone else, a little, to potentially save an innocent person from being convicted.
The rules of evidence were not created by a king, emperor, or potentate. They were created by legislators elected by the public, and the public has every right to replace them if need be. Those rules permit the defense lawyer to “hurt” a supposedly innocent person in a number of ways – to suggest that another person may have committed the crime, for example. But this is done to rebut the prosecution’s inference that the only reasonable inference is that the accused committed it.
In simpler terms, the prosecution tells the jury, by word or by implication, “Vote guilty, because there is no reasonable doubt that anyone other than this guy did the crime.”
The defense should certainly be allowed to tell the jury, “Hey, wait a second – how about this other guy? Why couldn’t he have done it?”
Is the OP talking about Casey Anthony’s defense and it’s questionable claims about her, father, her brother, the utility guy,* et. al.*?
The rules governing lawyers are, in most jurisdictions, made ultimately by or by the authority of the state Supreme Court, of which the state Bar is a branch. Those judges are lawyers, too, but they’ve reached a point where they need not consider their own interests as practicing attorneys and can focus attention on broader societal considerations. They are very cognizant of all manner of public dissatisfaction with the legal profession. They do not allow anything to go into the rules that might be “the opposite of actual ethics and highly destructive to society and to the reputation of the profession,” and if you see something in that regard that they don’t . . . you don’t. You couldn’t. Anything that still impresses you as unethical, is a part that can’t be removed and still allow the system to function.
IANAL either, but any defense lawyer worth his salt should certainly do everything he legally can to show evidence that the prosecution has not proven the guilt of the accused. Besides potentially setting a guilty person free, this also helps minimize the number of not guilty people being punished. It also forces the prosecution and the police to be sure that they collect sufficient evidence in the right way, which again encourages those enforcement agencies not to trample on the rights of all of us.
If he can show that there is a reasonable doubt (i.e., doubt for which there is a reason) through any factual, admissible evidence, he jolly well better do so.
I would suggest a bit more independent reading on how justice is served or not served in places and times where such adversarial processes were not in place.
I wouldn’t mind seeing a concrete hypothetical; what, exactly, is the possibly objectionable situation envisioned?
This may get to a more fundamental underlying difference I have with a lot of people about ethical obligations: I believe that they may never be delegated to leaders or to society at large, but rather are overarching individual imperatives. Thus if the evidentiary rules are insufficiently strict, a lawyer is ethically obligated to hold herself to the appropriate level of strictness. If a soldier is ordered to engage in a legal but unethical war, the soldier is ethically obligated to refuse to engage. If a corporate CEO sees a legal but unethical way to make money, the CEO is ethically obligated to refuse.
I know that this is a minority position, but I think this may be the difference between us. If ethical obligations may be delegated, then I think your position makes sense.
I don’t think they can be delegated. I don’t think the rules are insufficiently strict, either. I believe in the legal system, though, and that system can only operate properly if lawyers zealously represent their clients. If I move away from that, I am undermining the entire system. Protecting the reputation of a witness isn’t my ethical responsibility, and if I neglect my client in order to do it I have committed a much worse ethical violation than the one you speak of.
I don’t think the public follows rules of trials closely enough to make them an election issue.
Of course that’s why it’s done. That’s not part of the question. Question is if the ends justify the means. You (collectively) are treating the accused’s rights as completely paramount, such that the tiniest possible gain for the accused (in terms of likelihood of acquittal) trumps any amount of harm done to anyone else. There’s no inherent reason for this to be so.
Out of curiosity, do you disagree with the rape shield laws? It would seem that by your logic you should. FTR, I myself do, to the extent that it shields the reputation of actual promiscuous people at the expense of the accused. But to the extent that it doesn’t let lawyers portray non-sluts as sluts, I’m all for it.
Not talking about. But inspired by.
[I’m not following that trial closely enough to say definitively that all those claims are bogus. If they are - as seems to be the case from a superficial view - then this would be an example of the issue in the OP.]
I really don’t think that’s a minority position at all, Left Hand. I’m fairly sure we all agree that there’s a kind of ethics apart from the standards set forth by any profession. If the bar’s code of conduct is silent on whether it’s ethical to steal from a client under certain circumstances, or even for some awful reason if it allowed that behavior, that obviously doesn’t make it ethical to engage in it. Rape shield laws are a great example of that. If we went back to 1950s rules about that stuff, I would not in good conscience be able to try one of those cases.
So it’s not just that you think there’s another kind of ethics, and it’s not, as has been thoughtfully suggested, that lawyers (or maybe only the ones in this thread) just don’t care about anything beyond professional standards. It’s a question of having to act on it while fulfilling a role in the system. Hopefully, nobody here thinks it’s unethical just to be a criminal defense attorney in theory - we need those, after all. It’s possible that several people think that as currently contemplated, the practice of criminal defense is an unethical one. So what would make it ethical?
Say you have a hundred clients. To continue the example from before, all are charged with rape. Statistically speaking, a bunch must have committed the crimes, and some must not have, you’d expect. In each of the hundred cases, there is some number of possible defenses. For each of the hundred, you could suggest that another person had the opportunity, that various factors make it more likely that there was consent, that your client has a solid alibi, and so on. Most of those defenses are ultimately irrelevant or misleading, since the guy committed the crime in that case. And in each case, somebody is being harmed to some extent by your presenting evidence that concerns them; some are more harmful than others, and some seem more helpful to your client than others. If you draw the line here, and throw every inflammatory scrap you’ve got at them, maybe you get six of the guilty ones a lesser sentence than they’d get otherwise, but if you’re very cautious and draw the line over here, and don’t hurt anybody’s feelings, maybe two innocent ones go to jail. You don’t know which.
So what’s the ethical principle that should inform the way you defend those hundred clients, if not the ones currently in place?
Give me a specific hypothetical and I’ll tell you if I feel the ends justify the means.
There was already a hypothetical in this thread (rape cases, accusing the rape vicitim of having loose morals.) Another not-hypothetical currently happening in court (see this thread in IMHO) is the Casey Anthony defense.
Casey Anthony is accused of killing her daughter. Casey Anthony is a known compulsive liar. Casey Anthony’s defense is that Casey’s daughter was killed by Casey’s father, and Casey’s strange behaviour can be explained by the trauma caused consequent to Casey being molested as a child by her father. As far as I can tell, there is no evidence for the child molestation apart from the word of compulsive liar Casey Anthony. The question in the OP would be: is it morally right for the defending attorney to present this defense?
Yes, but the rape shield stuff is already being discussed separately, as there’s already an exception in place for it and so it’s not what has the OP et al so vexed.
Well, did Casey’s father kill the daughter? And was Casey molested as a child?
Absolutely, based on what you have said here.
I don’t know. From what I have read of the case, I would say the answers are No and No.
Would it make a difference if she had named a long-time neighbour as the killer and child molester? Her current boyfriend, claiming that he raped Casey and Casey was in fear of him? How likely does it have to be?
In the hypothetical case, you as the lawyer don’t know. Based on what you can tell, you think it’s 99% likely that Casey is guilty and that her father is innocent and was not involved in the death and never molested her. There is a non-zero chance that he is guilty and there’s a non-zero chance that OJ was framed. But it’s very small. (Let’s not quibble over the numbers.)
But despite being very small, it might be the best chance your client has to beat the rap. If you can make a convincing case of it.
But whether or not your client beats the rap, it’s very likely that the - likely innocent - father will be suspected of being a child molester and murderer by some segment of the population, and suffer the consequences forever.
That’s one hypothetical case.
Then it’s up to a judge and jury to decide.
To make sure I understand you correctly: are you saying that an attorney is justified in presenting any defense, no matter how unlikely, knowing that the judge and jury will be able to see through implausible claims?