Ethical Issues in Criminal Defense: The United States Experience

Abstract

My task is to discuss ethical issues in the work of the criminal defense attorney in the United States today,l In order to understand the many ethical issues involved in the work of criminal defense attorneys, it is necessary first briefly to discuss the work that criminal defense attorneys actually do in the United States. In the American system, the prosecutor presents the case against the defendant, and the defense attorney's job is to challenge and test the evidence. The judge is an important figure, but is more like the umpire in a baseball game than like the pitcher or the batter. The judge is not responsible for organizing and presenting the evidence, does not decide which witnesses will be called, and generally does not ask any questions of the witnesses. The jury decides over guilt or innocence. The defense attorney is not a minor figure. The criminal defense attorney is an absolutely critical participant in the process. The defense attorney investigates the case and advises the defendant as to whether to plead guilty or not. If the defendant pleads not guilty, the defense attorney plays an important role in selecting the jury, makes objections if the prosecution seeks to use impermissible evidence and cross-examines the prosecution witnesses. The defense attorney then calls the witnesses for the defense and conducts the direct examination of these witnesses. The defense attorney makes opening and closing statements to the jury, discusses countless questions of substantive law and procedure with the judge and the prosecutor, and plays a very important role in the sentencing process as well. Even if the defendant pleads guilty, the defense attorney usually negotiates the plea and must ensure that the proper procedures are followed. The central role that defense counsel plays in the adversary system creates many ethical problems. In a case some years ago, a defendant in a murder case told his lawyers that he had previously killed two other persons. The defendant also told his lawyers where he had hidden the bodies of his two victims. The lawyers went to that place, found the bodies, and took pictures of the bodies. They did not, however, tell the police or the court that they had found the bodies or where the bodies were located. Were the actions of defense counsel in this case proper? Did defense counsel act illegally?