If yesterday's post left you wondering just what kind of ethical dilemmas I encounter as a public defender, you're not alone.
So here's an example, which is somewhat fictionalized because as far as I know, the case is still ongoing.
I was in arraignments when I picked up a case where my client was charged with drunk driving, causing an accident with serious injury, and leaving the scene of an accident. She had been arrested many hours after the accident. The client was a student in a professional program and had never been arrested before.
Before speaking to my client, I realized that I'd need to get a lot of information from her because there were a few different defenses that might be worth pursuing. First, maybe my client wasn't really drinking. Second, maybe she was really drinking, but she wasn't intoxicated. (There wouldn't be an accurate breathalyzer because of the time that had passed.) Third, maybe the other driver caused the accident. Fourth, maybe my client wasn't even the one driving. Maybe someone else borrowed her car. And, finally, maybe once I learned more I would see an entirely different scenario.
So, I met the client and I asked her what happened. She told me she didn't remember. (Unfortunately, this is not uncommon in drunk driving cases.)
Immediately, she asked me, "Is my roommate here? She told me she was going to come get me." I told her that I didn't know, I'd have to check. "She told me not to talk to anyone until she got here." Alright, in that case, the easiest thing for me to do is go look for your roommate.
I found her roommate waiting in the audience. We went in the hallway to talk, where she told me, "Look, she shouldn't be in any trouble. Just tell me what you want me to say, anything I can do to help her." Wait, maybe I misunderstood. Maybe she meant, "She shouldn't be in any trouble (because I know she didn't do anything wrong), Just tell me (what questions you want answered honestly) and I'll do anything I can to help her."
So, I said, "Ok, were you with her tonight? What did you see?" She said, "No, no, I wasn't with her. But I could say she was with me if that helps. If she needs an alibi."
I told her friend that, while I appreciated her helpfulness, being dishonest wasn't going to be helpful in any case. For example, if she provided an alibi to say that my client wasn't really driving, they might have a videotape from a traffic camera to show that she was lying, and prove my client really was driving. In the alternative, if she provided testimony that my client wasn't drinking, they might have a witness from the bar or her credit card paying a big bar tab.
In my mind, even if I could ethically and legally get away with putting liars on the stand, I think there's just too much opportunity for it to backfire. My client got out of jail that day and one week later I received a call from a private attorney. I told the private attorney some general information about the case, and offered to send a copy of the papers I had received.
The private attorney asked me, "I understand there is an alibi witness. Did you get a chance to speak to her?" I said, "Well, I spoke to her roommate, but I'm not sure if that's who you're talking about." For all I know, my client could have remembered something about that night and come up with a real alibi witness. We ended the conversation with me telling the private attorney that I'd send the file to her.
About a week later, the private attorney left a message on my voicemail. "Hi, it's private attorney again. I spoke to client and she told me roommate is her alibi witness. You said you spoke to her, so I wanted to see if you took a written statement from her. I didn't see it in the file you sent me, but I just don't want to reinvent the wheel if you've already done it. Could you call me back and let me know?"
This was a situation where I checked with my supervisor. In the end, I called the private attorney, and, thankfully, she wasn't there. I left a message that said, "Hi, it's Blonde Justice returning your call. I didn't take any sort of written statement. Good luck with your case!" I tried to use my best not-too-friendly no-need-to-keep-calling-me tone. We'll see if it works.
I guess now we could play devil's advocate. What more could I have done? Could I have told her "If you're talking about the roommate, she's full of baloney?" Probably. It wasn't protected by privilege. But did I have to? I, obviously, don't think so. Should I? I figure that the private lawyer is going to figure it out sooner or later, but I don't think it's my job, at this point, to tell her how to handle her case.
What about the flip side? Could I have coached the roommate through a perfect story? Could I have made her the star witness of my case? Ethically? I suppose that if I wanted to, there could have been a way to skirt the ethical rules. I could have asked the roommate all leading questions. I could have said, "Oh, good, so what you're telling me is that you were there with her at the bar? And she was only ordering soda the whole night? You're positive? And then you're telling me that you were at the corner when the other car ran a red light? You're positive? Ok, and then you're telling me that the other driver said she was alright, no damage done, go on home? Oh, ok. Thanks. Let me just get your contact information so I can put you on my witness list." A witness that wanted to help her friend out would have figured out exactly how to answer my questions. And a witness who couldn't figure it out isn't too bright and wouldn't be of much use to me anyway. So, would that be unethical? Probably not. I would have no reason to know that my witness was lying.
But, practically, none of this really came into play. I know that messing with a lying witness isn't worth it, and I know that asking only the question answered ("Did you take a written statement?" as opposed to "Did you take a written statement? Why not?") is one of the greatest tactics of lawyering. And, I think that's how real life ethics differ from classroom ethics.
But feel free to "dispute!"