Lame Excuses: What's Wrong With the Adversarial System
By Bryan Caplan
Mike Huemer, my favorite philosopher, has a new working paper on the ethics of legal advocacy. Lawyering may never be the same, for Mike challenges the central dogma of the adversarial system: Lawyers should use all legal means to help their client win. (Except prosecutors, who are already held to a higher standard). Mike begins by pointing out that the adversarial system obligates lawyers to act in ways that would plainly be wrong for non-lawyers:
Consider the following hypothetical scenario, which I shall call the case of The Murderer’s Friend:
Sally and Joe have known each other for a few months and have become close friends. One day, after securing a promise of confidentiality from Sally, Joe finally confesses to Sally his darkest secret: he is a serial murderer. He has murdered six people so far. He asks Sally for advice about where to hide the body of his latest victim. Sally tries to convince Joe to stop murdering people and, moreover, to turn himself in. Joe refuses to turn himself in and remains noncommittal on future murders. Sally, good friend that she is, keeps Joe’s secret and offers Joe helpful advice on how to elude the police.
I take it that most people would not even consider behaving in the manner of Sally in this example. There are two aspects of Sally’s behavior that mark it as extremely wrongful.
First, it is wrong for Sally to keep Joe’s secret; in so doing, she allows Joe, unjustly, to get away with his crimes, and she countenances an unacceptable risk of death for innocent others, due to the likelihood that Joe will kill again. Sally is morally obligated, instead, to turn Joe in to the police.
Second, it is even worse for Sally to actively assist Joe by giving him advice on how to elude the police. Here she not merely allows serious injustices to occur but actively promotes them.
My concern here is an ethical, rather than a legal one. The point is not that Sally would be legally required to report Joe to the police. The point is that Sally would be morally required to report Joe and not to aid him. This would be true even if Sally lives in a legal system in which such reporting is not required. Sally’s obligation here does not result
from any special relationship she has with Joe, nor any special role she has taken on. It is simply a requirement for being a decent human being.
So why should we hold lawyers to a different standard? The Argument from Uncertainty is not only wrong, but silly:
Some defenders of Devil’s Advocacy appeal to a kind of external-world skepticism: it is said that a lawyer can never really know that a client is guilty. Even a client who confesses to his attorney might be lying, that is, there is a nonzero probability of this. Perhaps the client has falsely confessed because he is mentally disturbed or is protecting someone else…
This is a strange argument. Typically we do not eschew the pursuit of justice or any other value merely on the grounds that we cannot be 100% certain of what will promote or thwart the goal. In the case of the Murderer’s Friend, surely Sally could not be excused for disregarding the demands of justice and the welfare of innocent third parties merely on the grounds that she was not 100% certain that Joe was really a serial murderer.
The “Better to let X guilty men go free rather than convict one innocent” argument may be true, but it evades the key moral challenge:
The interesting cases are those in which the lawyer is convinced beyond a reasonable doubt that the client is guilty – or, more to the point, the probability of the client’s being guilty, on the attorney’s evidence, exceeds whatever ought to be the appropriate threshold for convicting a person of a crime. In this case, the argument that “it is better to let many guilty persons go free than to convict one innocent person” cuts no ice, since that point has already been taken into account in identifying the appropriate evidentiary threshold, which we have stipulated that the lawyer’s evidence surpasses.
The Arguments from Friendship and Contractual Obligation are lame:
Some view the lawyer as like a friend to his client. Often, a person will support a friend’s cause, even when the friend is in the wrong. And to some extent, we may regard this as morally acceptable, even virtuous – specifically, as a manifestation of the virtue of loyalty. If a friend has overparked at a parking meter, it would not be virtuous to hail the traffic enforcer to ensure that your friend receives a ticket.
But while the virtue of loyalty may license some degree of disregard for impartial justice in the service of one’s friends, this license must be quite limited. It was in light of this thought that I mentioned the friendship between Sally and Joe in the Murderer’s Friend case. In that case, Sally is a friend of Joe in a clearer sense than a lawyer is a friend of his client. Yet this hardly excuses Sally’s complicity in Joe’s heinous crimes. Whatever moral value there may be in Sally’s show of loyalty, it does not come close to outweighing the moral importance of stopping a serial murderer. The same would seem to hold for many lesser but still serious crimes.
In addition, there is, as D’Amato and Eberle put it, “certainly something strange about an instant friend whose friendship is purchased by paying a retainer.” While a preexisting close relationship may create certain ethical prerogatives to act partially on behalf of a particular person, it is implausible that such prerogatives are established by one’s simply hiring someone specifically to help one escape justice.
Return to the case of the Murderer’s Friend. We have already said that Sally’s friendship with Joe does not seem to override her obligation to report Joe’s crimes. Now suppose we add the following: Joe pays Sally $20,000 to keep quiet and to help him elude the police, and Sally accepts the money. Does this strengthen Sally’s moral position, such that her
failure to report Joe is now ethically justified?
The “I’m Just Doing My Job in the Adversarial System” Argument is wrong.
The main argument, according to most proponents, appeals to the role of a lawyer in an adversarial justice system. It is simply the job of a lawyer to represent his client’s interests, regardless of where he believes true justice in the given case lies. If one is unable or unwilling to perform this function, then one has no business being a lawyer (or perhaps one is qualified only to serve as a prosecutor).
By themselves, however, observations about the responsibilities attached to a particular job carry little weight. It is equally true that it is the job of a mafia hit man to murder those whom the Boss targets for elimination, and that those who are unwilling to do this have no business being hit men. But this does nothing to justify murders carried out by hit men. If a particular job description includes activities that we are antecedently convinced are morally wrong, the mere introduction of employment opportunities for people who perform those actions will do nothing to render them permissible; normally, it will simply mark the jobs in question as immoral jobs.
Lawyers should not have “faith in the justice system”:
No doubt, the system usually works as intended, to punish the guilty and acquit the innocent. But there are cases in which it fails, and a lawyer can certainly be justified in suspecting that he is presently involved in such a case. This might occur, for instance, because the lawyer is privy to incriminating evidence of which the prosecution is ignorant, because the lawyer is in a position to take advantage of emotional reactions or other prejudices of the jury, or simply because the lawyer is more skilled than his counterpart on the opposite side. Of particular import, it is certainly possible, and must happen fairly often, that a lawyer is justified in attaching a nontrivial credence to the proposition that his own zealous advocacy will prove a key factor in enabling injustice to prevail.
The Rule Utilitarian case for unjust advocacy fails on its own terms:
[I]t is not at all obvious that rule consequentialism favors Devil’s Advocacy, because it is far from obvious that the rule whereby defense attorneys ignore justice in the pursuit of client interests really has the best social consequences. This is commonly asserted but rarely argued for. Consider an alternative rule whereby defense attorneys pursue their clients’ interests only to the extent that they (the attorneys) believe is consistent with the requirements of justice. Why, exactly, would this be worse than the status quo?
Does this mean lawyers should never defend clients they believe to be guilty? No. Defending the probably-guilty is morally acceptable in two kinds of situations.
First… there are cases in which outcome A has a higher probability of being unjust than outcome B, but in which if outcome B is unjust, it is more unjust than outcome A would be. For example, if a defendant is 75% likely to be guilty, then there is a 75% probability that acquittal of that defendant would be an unjust outcome, and only a 25% probability that conviction would be unjust. However, conviction of the innocent is much more unjust than acquittal of the guilty. Because of this, it is ethically justifiable to attempt to secure acquittal for such a defendant. This point applies as long as the lawyer has reasonable doubts as to the guilt of his client.
Second… even the guilty have rights; it is therefore ethically justifiable for a lawyer to represent a client for the purpose of protecting that client’s rights, even if he is certain the client is guilty. The lawyer may seek to prevent overpunishment or other mistreatment of the defendant. In some cases, where the expected punishment for a crime is excessive, it may be less unjust for the defendant to be acquitted than for the defendant to be convicted, even though the defendant is guilty.
Defending clients guilty of breaking unjust laws naturally falls under the second heading, since the appropriate punishment for breaking an unjust law is no punishment at all.