"Is it proper to cross-examine for the purpose of discrediting the reliability or the credibility of a witness whom you know to be telling the truth?" Monroe Freedman has identified this question as one of the three hardest questions of legal ethics. [Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1470 (1966)]. What makes the question so difficult?

Freedman presents the following scenario:

Your client has been falsely accused of a robbery committed at 16th and P Streets at 11:00 p.m. He tells you at first that at no time on the evening of the crime was he within six blocks of that location. However, you are able to persuade him that he must tell you the truth and that doing so will in no way prejudice him. He then reveals to you that he was at 15th and P Streets at 10:55 that evening, but that he was walking east, away from the scene of the crime, and that, by 11:00 p.m, he was six blocks away. At the trial there are two prosecution witnesses. The first mistakenly, but with some degree of persuasion, identifies your client as the criminal. At that point, the prosecution's case depends on this single witness, who might or might not be believed. Since your client has a prior record, you do not want to put him on the stand, but you feel that there is at least a chance for acquittal. The second prosecution witness is an elderly woman who is somewhat nervous and who wears glasses. She testifies truthfully and accurately that she saw your client at 15th and P Streets at 10:55 p.m. She has corroborated the erroneous testimony of the first witness and made conviction virtually certain. However, if you destroy her reliability through cross-examination designed to show that she is easily confused and has poor eyesight, you may not only eliminate the corroboration, but also cast doubt in the jury's mind on the prosecution's entire case. On the other hand, if you should refuse to cross-examine her because she is telling the truth, your client may well feel betrayed, since you knew of the witness's veracity only because your client confided in you, under your assurance that his truthfulness would not prejudice him.

How would you respond to this situation?

Monroe Freedman has gained a reputation for his adamant defense of the adversarial ethic. In doing so he has drawn fire from critics for holding out adversarial zeal as a penultimate virtue. For a response to Freedman's vision of lawyer ethics, see Essay: Three Discussions of Legal Ethics, 126 U. Penn. L. Rev. 452, 458-463 (1977) calling into question Freedman's "model" of "moral deliberation" as a "single-source deductive approach." The author argues that Freedman's vision of lawyer is grounded in an "abstraction."

The relevant moral agent is not an abstraction known as a "lawyer" but rather a flesh-and-blood person who happens to work in the law--an important, but not controlling fact. The question thus becomes what considerations, other than an abstract notion of what the system expects of lawyers, are important? [460]

The commentator suggests that "objections" can be posed "to the use of deception to prove the truth" but "they are all essentially grounded in the value judgment articulated in the maxim 'the end does not justify the means.'" [463-464]

Note

1. For a more comprehensive exploration of Monroe H. Freedman's views on the cross-examination of truth-telling witnesses, see Monroe H. Freedman, Understanding Lawyers' Ethics 161-171 (New York: Matthew Bender & Co., 1990).

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