A criminal defense lawyer has a \u201cdifferent mission\u201dFN1 in the justice system than lawyers in other legal proceedings.FN2 Sometimes prosecutors, police, and the public do not understand this different role. This is an effort to explain the defense lawyer\u2019s duty as a whole in the context of suppression motions and hearings which are likely losing motions. As in determinations of guilt or innocence, that is not the lawyer’s call. If the motion is remotely colorable, defense counsel has the option of filing and pursuing it if there is a benefit to be derived for the client.<\/p>\n
Justice White concurring and dissenting in United States v. Wade,<\/em> 388 U.S. 218, 256-58<\/a>, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), four decades ago brought into sharp focus the different role of defense counsel:<\/p>\n Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.<\/p><\/blockquote>\n Most criminal defense lawyers subscribe to the philosophy of criminal defense that the Sixth Amendment<\/a> duty of defense counsel imposes on defense counsel the obligation to zealously assert any ground or course of action that defense counsel believes is in the client\u2019s interest, even if it means litigating a suppression motion that will surely lose and even would be arguably frivolous on the merits. This is a duty that extends to the client and the system of criminal justice as a whole. Moreover, the constitutional duty to the client can, in some situations, actually subordinate the ethical rules under the Supremacy Clause.FN4<\/p>\n Most also adhere to the philosophy of client centered, rather than system centered, representation.FN5 The system has a right to expect certain things from the criminal defense lawyer, but the client\u2019s best interest is paramount, consistent with the criminal defense lawyer not committing a crime or fraud on the court.FN6<\/p>\n The Ethical Rule<\/em><\/p>\n The ethics rules recognize the tension between the duty to not file frivolous motions and the duty to the client under the Sixth Amendment. Consider Rule 3.1<\/a> of the Model Rules of Professional Conduct:<\/p>\n Rule 3.1. Meritorious Claims and Contentions. <\/p>\n A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.<\/p><\/blockquote>\n Comment \u00b6 3 to Rule 3.1 addresses this specific problem:<\/p>\n The lawyer\u2019s obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.<\/p><\/blockquote>\n Therefore, just as the criminal defense lawyer may put the state to its burden of proving guilt of the accused, the ethical rule recognizes that a criminal defense lawyer may file motions that put the government to its burden of proof on suppression motions. That includes, I submit, challenging searches and seizures or statements of the accused, particularly where the government has the burden of going forward and to sustain the search (as in all warrantless searches) or statement. Both warrantless searches and statements of the accused carry a presumption of invalidity. This is no different than the presumption of innocence. So, why should the rule as to motions be different than guilt?<\/p>\n The Duty to Investigate Defenses<\/em><\/p>\n Defense counsel has a duty to investigate potential defenses and interview witnesses.FN7 The Supreme Court has made this clear several times. See, e.g., Wiggins v. Smith,<\/em> 539 U.S. 510, 522-23<\/a>, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003):<\/p>\n In highlighting counsel’s duty to investigate, and in referring to the ABA Standards for Criminal Justice as guides, we applied the same \u201cclearly established\u201d precedent of Strickland<\/em> we apply today. Cf.<\/em> 466 U.S., at 690-691 (establishing that \u201cthorough investigation[s]\u201d are \u201cvirtually unchallengeable\u201d and underscoring that \u201ccounsel has a duty to make reasonable investigations\u201d); see also id., <\/em>at 688-689 (\u201cPrevailing norms of practice as reflected in American Bar Association standards and the like \u00b7\u00b7\u00b7 are guides to determining what is reasonable\u201d).<\/p>\n In light of these standards, our principal concern in deciding whether Schlaich and Nethercott exercised \u201creasonable professional judgmen[t],\u201d id.,<\/em> at 691, is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable. Ibid. Cf. Williams v. Taylor, supra,<\/em> at 415 (O’Connor, J., concurring) (noting counsel’s duty to conduct the \u201crequisite, diligent\u201d investigation into his client’s background). In assessing counsel’s investigation, we must conduct an objective review of their performance, measured for \u201creasonableness under prevailing professional norms,\u201d Strickland,<\/em> 466 U.S., at 688, which includes a context-dependent consideration of the challenged conduct as seen \u201cfrom counsel’s perspective at the time,\u201d id.,<\/em> at 689, (\u201c[E]very effort [must] be made to eliminate the distorting effects of hindsight\u201d).FN8<\/p><\/blockquote>\n This duty can sometimes be fulfilled through filing motions that deal with the admissibility of evidence against the accused to commit the officers under oath as to what they know about the defendant and his alleged participation in the crime. The fact the police reports or even the defendant’s version suggest that the motion will lose should not even be determinative, but they both carry weight in defense counsel’s determination to go forward on a suppression motion.<\/p>\n The Constitutional Right and Duty to Present a Defense<\/em><\/p>\n Separate from the Sixth Amendment right to counsel is the due process right of the accused to be able to put on a complete defense. “The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi,<\/em> 410 U.S. 284, 294<\/a>, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). Thus, “[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense.” Id., <\/em>410 U.S. at 302.<\/p>\n The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant\u2019s version of the facts as well as the prosecution\u2019s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution\u2019s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.<\/p><\/blockquote>\n Washington v. Texas,<\/em> 388 U.S. 14, 19<\/a>, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Accordingly, it is held that \u201cthe Constitution guarantees criminal defendants \u2018a meaningful opportunity to present a complete defense.\u2019\u201d Crane v. Kentucky,<\/em> 476 U.S. 683, 690<\/a>, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta,<\/em> 467 U.S. 479, 485<\/a>, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)); Holmes v. South Carolina,<\/em> 126 S.Ct. 1727, 1729<\/a>, 164 L.Ed.2d 503 (2006).<\/p>\n Thus, the duty to investigate plus the \u201cmeaningful opportunity to present a complete defense\u201d means that defense counsel may choose to pursue motions that counsel believes will not win, just to test or better examine the prosecution\u2019s evidence.<\/p>\n Pursuing the “Questionable” Suppression Motion<\/em><\/p>\n A criminal defense lawyer reads a case file, and, based on the police reports of a warrantless search, it appears that the search was justified. The client, however, provides a different factual scenario which, if true, casts doubt on the legality of the search. Moreover, consider that the search was warrantless which puts the burden of proof on the government to sustain it. Just because the police say it does not make it so. Some of us have been around long enough, and on the other side, to have had police officers caught in shading the truth. It happened to me as a prosecutor and I have caught police officers in “truth shading” in suppression motions. This hardly makes a motion “questionable,” just because defense counsel thinks that he or she will lose the motion.<\/p>\n Similarly, consider a statement taken of the accused. As a lawyer, you know that the police will most certainly find a way to make the statement sound voluntary, even when the client says that it is not. The burden is always on the government to prove that a defendant\u2019s statement is voluntary on the totality of the circumstances.<\/p>\n Consider also the likelihood of a defense ulterior motive: The defense wants the opportunity to examine the police officers about the circumstances of finding contraband when the issue of the defendant\u2019s actual or constructive possession may be present.FN9<\/p>\n It is submitted that it is ethical in all these situations, and constitutionally required, for criminal defense lawyers to file a suppression motion and go to a hearing, even when defense counsel thinks that he or she will lose on the motion, and even when the motion is ulteriorly a discovery device. As long as the action is justified by avoiding an ineffectiveness claim, it is permissible.FN10 Any sanctions against criminal defense lawyers would chill zealous and creative advocacy. If, after the suppression hearing, it is obvious that the defendant should plead guilty, then so be it. If that is the outcome, then the prosecutor and court should be pleased that the suppression motion brought about a guilty plea rather than an uninformed trial that produces a worse result for the defendant. If the suppression motion reveals that the officer knows far more or less than the reports of the search or the affidavit for the search warrant, then the defense may have something to work with at trial. As always, the client\u2019s best interest is the ultimate determiner of whether to go forward at all. PRCDP \u00a7 9:6.<\/p>\n Ultimately, either way, that purportedly frivolous or “questionable” motion served to do justice. When a criminal conviction and loss of liberty is the ultimate stake in the outcome, the threshold of purported \u201cfrivolousness\u201d should be considerably lower for all in the criminal justice system.<\/p>\n Footnotes:<\/strong><\/p>\n FN1 See, e.g.,<\/em> Harry I. Subin, The Criminal Lawyer\u2019s \u201cDifferent Mission; Reflections on the \u201cRight\u201d to Present a False Case,<\/em> 1 Geo. J. Legal Ethics 125 (1987); John B. Mitchell, Reasonable Doubts are Where You Find Them: A Response to Professor Subin\u2019s Position on the Criminal Defense Lawyer\u2019s Different Mission,<\/em> 1 Geo. J. Legal Ethics 339 (1987).<\/p>\n FN2 See<\/em> John Wesley Hall, Jr., Professional Responsibility in Criminal Defense Practice<\/a> \u00a7 9:3 (3d ed. 2005) (PRCDP). See also<\/em> www.LawofCriminalDefense.com. <\/a><\/p>\n FN3. The Sixth Amendment provides: “[i]n all criminal prosecutions, the accused shall … have the Assistance of Counsel for his defence.”<\/p>\n FN4. U.S. Const., Art. VI, cl. 2.<\/a> My analysis of the criminal defense lawyer\u2019s hierarchy of duties puts the Sixth Amendment first, other law (such as the criminal law) second, moral considerations third, and ethical rules fourth. PRCDP \u00a7 1:21.<\/p>\n FN5. PRCDP \u00a7\u00a7 1:20-1:21 & 9:3.<\/p>\n FN6. PRCDP Chs. 3 & 9.<\/p>\n FN7. PRCDP \u00a7 9:19.<\/p>\n FN8 As to the duty to investigate potential defenses, see Alvord v. Wainwright,<\/em> 469 U.S. 956, 959<\/a>, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984) (\u201cThe question is whether counsel had a duty to investigate his client’s case and make a minimal effort to persuade him to follow the only plausible defense. The question is not whether counsel has a duty to override his client’s wishes, or pursue fruitless investigations, thereafter.\u201d); Strickland v. Washington,<\/em> 466 U.S. 668, 682<\/a>, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (\u201cHaving outlined the standards for judging whether defense counsel fulfilled the duty to investigate, the Court of Appeals turned its attention to the question of the prejudice to the defense that must be shown before counsel’s errors justify reversal of the judgment,\u201d relying on Washington v. Strickland,<\/em> 693 F.2d 1247, 1256-57 n. 23 (5th Cir. 1982) (on reasonable defense investigation) which it reversed). See also Rompilla v. Beard,<\/em> 545 U.S. 374, 382-83<\/a>, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005).<\/p>\n FN9. I have tried several losing suppression motions, knowing I would lose, solely for the purpose of learning exactly where the contraband was in relation to my client just because the police report was not clear on that point. At an NACDL meeting, I told a friend of mine that he had a case on Lexis that morning, and I told him the case name (it was the first he’d learned he’d lost). He allowed as how he filed the motion to smoke out a defense because the police reports were obtuse, and the suppression hearing, while a loser, gave him something to work with on the case.<\/p>\n Perhaps if law enforcement officers were more clear in their reports, they could prevent such a motion, but police officers and prosecutors think more alike than defense lawyers v\u00eds-a-v\u00eds prosecutors. I confess that, as a baby prosecutor, I did not fully understand defense counsel\u2019s role. I had to be a defense lawyer for a while before I fully appreciated the weight of obligation that we carry. Prosecutors\u2019 mistakes are remedied by the fact that the defendant, if a true criminal, will be arrested again and get his due (hopefully not committing a violent crime). Defense counsel\u2019s mistakes end up in prison and filing IAC claims against the lawyer.<\/p>\n FN10. Restatement (Third) of the Law Governing Lawyers \u00a7 110 (2000), Comment f. See also Monroe H. Freedman & Abbe Smith, Understanding Lawyers’ Ethics 101-02 (3d ed. 2004) (also noting the absense of caselaw sanctioning criminal defense counsel for allegedly frivolous litigation, quoting In Re Becraft,<\/em> 885 F.2d 547, 550 (9th Cir. 1989), noting absence of sanctions against criminal defense lawyers).<\/p>\n Note:<\/strong> This will be new \u00a7 3:11A in PRCDP.<\/p>\n","protected":false},"excerpt":{"rendered":" b2evALnk.b2WPAutP Continue reading