NCJ Number
64878
Journal
Duke Law Journal Issue: 4 Dated: (OCTOBER 1978) Pages: 921-959
Date Published
1978
Length
39 pages
Annotation
TO ILLUMINATE THE ROLE OF DEFENSE COUNSEL IN THE SUPPRESSION OF TRUTH IN CRIMINAL CASES, THIS ARTICLE EXPLORES THE NATURE OF THE LEGAL PROFESSION AND USES A HYPOTHETICAL CASE TO ILLUSTRATE THESE ETHICAL CONCERNS.
Abstract
THE PROPER BALANCE BETWEEN ZEALOUS REPRESENTATION AND THE OBLIGATION OF THE LAWYER TO THE COURT AND TO THE PUBLIC IS A CONTINUING PROBLEM THAT HAS PROMOTED MUCH DEBATE. ALTHOUGH THE AMERICAN BAR ASSOCIATION (ABA) STANDARDS RELATING TO THE DEFENSE FUNCTION (1971) MET MANY OF THE ISSUES CONCERNED, THEY LACK THE BINDING EFFECT OF LAW. FURTHER CONSIDERATION IS NOW BEING GIVEN TO AMENDING THE ABA'S CODE OF PROFESSIONAL RESPONSIBILITY (CPR) TO CONFORM ITS MANDATES TO THE MORE SPECIFIC LANGUAGE OF THE STANDARDS. BY VIEWING THE CRIMINAL PROCESS AND NOTING THE ABSENCE OF ADEQUATE CRITERIA UNDER EXISTING LAW FOR DETERMINING WHEN COUNSEL SHOULD DISCLOSE THE TRUTH, THE PROBLEM COULD BE DEALT WITH THROUGH REEAXMINATION AND ALTERNATION OF EVIDENTIARY AND PROCEDURAL LAW, NOT THROUGH ETHICAL PROSCRIPTIONS THAT WOULD PRECLUDE COUNSEL FROM ASSERTING RIGHTS THAT ARE AVAILABLE TO THE CLIENT UNDER LAW. FOR COUNSEL TO BETTER SERVE THE PUBLIC, SOCIETY MUST EXAMINE THE DIMENSIONS OF THE EXCLUSIONARY RULE AND OTHER RULES TO EVIDENCE AND PROCEDURE DESIGNED TO ASSURE THAT GUILT OR INNOCENCE IS FAIRLY DETERMINED. THE PROFESSION MUST SIMULTANEOUSLY EXAMINE ITS STANDARDS OF PROFESSIONAL RESPONSIBILITY AND MODIFY LAWS OF PROCEDURE AND EVIDENCE OR THE CODE OF ETHICS, OR BOTH. A HYPOTHETICAL ARMED ROBBERY CASE ILLUSTRATES CONDUCT BY THE DEFENSE COUNSEL THAT ULTIMATELY DOES NOT SERVE THE PUBLIC INTEREST. FOOTNOTES ARE PROVIDED. (WJR)