Professional Responsibility

Working with a Lawyer's Confession

Seymour Wishman, Confessions of a Criminal Lawyer 3-18 (New York: Times Books, 1981) [on-line text]

<1> "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?

Monroe 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. You are able to persuade him, though, 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; however, he was walking east, away from the scene of the crime, and by 11:00 p.m. he was six blocks away.

There are two prosecution witnesses. The first mistakenly, but with some degree of persuasion, identifies your client as the criminal. The second 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. On cross-examination, however, you are able to show that she is easily confused and has poor eyesight. At that point, the prosecution's case rests, in effect, on the first witness, and your successful cross-examination of the second witness may have cast doubt on the prosecution's entire case.

Your client insists upon testifying, which is his right as a matter of due process. He believes that he is more ikely to be found not guilty if he takes the stand to testify, truthfully, that he is innocent of the crime, and he also wants to tell the jury, truthfully, where he was at 11:00 p.m. However, he is convinced that he cannot afford to admit that the second prosecution witness correctly placed him one block from the scene of the crime at 10:55 p.m., because that would rehabilitate both the elderly witness and the prosecution's case against him. You try to dissuade him from testifying perjuriously, but he is adamant. What should you do? [Monroe H. Freedman & Abbe smith, Understanding Lawyers' Ethics 157-158 (Newark, New Jersey: LexisNexis/Matthew Bender, 2nd ed., 2002)]

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? [Three Discussions of Legal Ethics, at 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.'" [463-64]

<2> What reasons does Seymour Wishman offer to explain his humiliation of Ms. Lewis during his cross-examination of her while representing the man accused of raping her? Are the reasons persuasive, that is, do they provide moral justification for the humiliation of Mrs. Lewis?

Examine the reasons carefully. What do you learn about yourself, and about the practice of law, as you explore the reasons Wishman offers?

<3> What significance do you see in Wishman's calling the book a "confession"? Does the "confession" alter the way we are supposed to read Wishman's account of his encounter with Ms. Lewis? (One might argue a confession is by nature so personal that it cannot be a public prescription for action.) What kind of demand does Wishman's confession make on you as a reader?

<4> In what sense is Wishman engaged in an exercise of "practical moral philosophy"?

Wishman tries to understand his encounter with Mrs. Lewis and her anger by defending himself. He doesn't tell us, at least directly, that his treatment of Ms. Lewis was wrong but he is clearly disturbed by the encounter and that he may have become the kind of person who is insensitive to the harm he has caused. We see Wishman engaged in something like an internal dialogue, a conversation with himself, a conversation which he now shares with the reader. [We see something of a similar sort in Bowen McCoy's "Parable of the Sadhu."] How does Wishman's conversation with himself shape the conversation we, in turn, have about Wishman?

If Wishman is thinking, reflecting and engaging in a dialogue on a serious moral matter, isn't he doing something we might want to call philosophy?

<5> Do the legal profession's ethical rules provide assistance in determining whether Wishman's actions were justified?

<6> Wishman notes that the encounter with Mrs. Lewis resulted in a "chilling glimpse" of himself. [16]. The encounter left him "shaken" [18] and "frightened." [5, 18]. "I was frightened by the person she saw . . . frightened that I could be seen that way . . . frightened that I might be that person." [18]

<7> Wishman may have simply reached the point described by another lawyer, Charles Reich, as having a "need for truth."

There comes a time when the need for truth is so great, when lies and distortions have made ourselves, and the selves of those we love, and the things we believe in, so unrecognizable, that at any cost we must go in search of the truth, no matter how long and hard and lonely the road. [Charles Reich, The Sorcerer of Bolinas Reef, unnumbered page, epigram to chapter one (New York: Bantam, 1977)]

<8> Wishman says that the encounter with Mrs. Lewis came at a time when he "had accumulated, without realizing it, a number of reservations about my work." [17]. Should we have reservations about our work?

<9> Seymour Wishman has some interesting things to say about his mentor, Judge Barrett, and we'll want to explore that relationship. [Wishman and Judge Barrett]

Notes

 Wishman's Confessions of a Criminal Lawyer is now out-of-print. Mr. Wishman informs me that the book is now available from Palisades Press, 153 Waverly Place, New York, New York 10014 [Telephone: 212-243-0600].

The first chapter of Wishman's Confessions was reprinted in Seymour Wishman, Confessions of a Criminal Lawyer, 21 Legal Studies Forum 139-149 (1997). For an extended discussion of the use of Seymour Wishman's story about the humiliation of Mrs. Lewis in teaching lawyer ethics, see Symposium: Teaching a Lawyer's Confessions, 21 Legal Studies Forum 139-300 (1997).

 Further Reading on the Ethics of Cross-examination: Philip H. Corboy, Cross-examination: Walking the Line Between Proper Prejudice and Unethical Conduct, 10 Amer. J. Trial Advocacy 1 (1986); Paul G. Haskell, Why Lawyers Behave as They Do 2-3 (Boulder, Colorado: Westview Press, 1998); Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1470 (1966); Saul M. Kassin, Lorri N. Williams, & Courtney L. Saunders, Dirty Tricks of Cross-Examination: The Influence of Conjectural Evidence on the Jury, 14 Law & Hum. Beh. 373 (1990); David L. Lewis, Cross-Examination, 42 Mercer L. Rev. 627 (1991); Vance Barrow, A Probing View of Cross-Examination, 16(1) Litigation 41 (1989).

Philip Corbory, a well-known Chicago litigator, divides cross-examination into two categories: "(1) that intended to impeach the witness or to expose some fallacy within his or her testimony; and (2) that which has no purpose other than degradation and humiliation of the witness." (Philip H. Corboy, Cross-examination: Walking the Line Between Proper Prejudice and Unethical Conduct, 10 Amer. J. Trial Advoc. 1, 2 (1986)). Corboy argues that lawyers "must draw a line between legitimate impeachment and frank humiliation. Sometimes impeachment must encompass witness humiliation, but the initial decision to embark upon a degrading cross-examination requires careful scrutiny of the target." [Id.] On the "classic question" on the "propriety of discrediting the adverse witness [in a rape trial] counsel knows is telling the truth," Corboy admits it's not an easy question and indeed the "result"--casting doubt on truthful testimony--seems "harsh." [Id. at 11]. Corboy does not, however, follow through in his analysis by use the two categories of cross-examination that frame his inquiry. He simply concludes that "it is undesirable that defense counsel should sit silently whenever he believes a searching cross-examination may be harmful to a prosecution witness." [Id. at 12]

On Zealous Advocacy, generally, see: James R. Elkins, The Moral Labyrinth of Zealous Advocacy, 21 Cap. U. L. Rev. 735 (1992); Murray Schwartz, The Zeal of the Civil Advocate, 1983 Am. B. Found. Res. J. 543, 550-554.

 In talking about Seymour Wishman's humiliation of Mrs. Lewis with students of law, we find that some students crave the opportunity to badger, humiliate, and "destroy" witnesses on cross-examination. Others are repulsed at the thought of doing what Wishman has done. Admiration for Wishman for some of us turns on his searching moral inquiry, for others the fact that he knows how to play hardball.

 In Harper Lee's To Kill a Mockingbird, both Atticus Finch, who is acting as defense counsel for Tom Robinson, who has been accused of rape, and Mr. Gilmer, the prosecutor, are shown cross-examining adverse witnesses. [To Kill a Mockingbird at 177-181, 183-191, 198-201]

Scout, Atticus's daughter, recounting the events of the Tom Robinson's trial, and Atticus's cross-examination of Mayella Ewell who lied in her accusations against Tom Robinson, says of the cross-examination: "Somehow, Atticus had hit her hard in a way that was not clear to me, but it gave him no pleasure. He sat with his head down. . . . " [Id. at 191]. Even Mr. Gilmer, the prosecutor, who takes full advantage of Maycomb's racism, "seemed to be prosecuting almost reluctantly," a reluctance that does not diminish the brutality of his cross-examination of Tom Robinson. [Id.]. Whatever one's assessment of Wishman's tactics, there is a clear difference between the ethics of a man like Atticus Finch and the racist innuendo used by Mr. Gilmer in his cross-examination of Tom Robinson.

 On Criminal Lawyers and Their Efforts Hide from the Truth: David Luban, Contrived Ignorance, 87 Georgetown L. J. 957 (1999).

 Seymour Wishman is now President of First Run Features, a film distribution company.