- What can be done to ensure that the public is protected by
the court system while the rights of the accused are protected under
The security of these rights are based on law and applied morality, and a balance of these considerations. Albanese discusses the moral issues I summarize as: one, utilitarian morality must balance the pain caused by the state to enforce the law versus the pleasure that is produced by reducing crime; secondly, formalist (deontological) morality is based on categorical imperatives, and judge policy based upon those ideals; finally, virtue ethics requires that not only policy must have a real good as the objective, but that each incident in which policy is conducted must weighed by motive and circumstance.(2010, p.51)
Under the moral guidelines of each theory, and by the the responsibility of all officers of the court to maintain rule of law, lawyers must determine whether any given law is moral, it's consequences are moral, and that it protects both the public good, and the rights of the accused. Any given law or policy may be misapplied or contravened, so it is the duty of the officer of the court to act morally in his own right.
- Defense attorneys take an oath as officers of their Bar Association to vigorously defend their clients to the best of their ability. That is their legal and ethical duty as required by their professional status as officers of the court. How far can attorney-client privileges ethically go in suppressing evidence?
From a utilitarian view, lawyers may already be going past moral limits by going too far in protecting the client's interests, as opposed to client's rights, and therby undrmining public safety;“Wishman (1981) describes a case in which he challenged a rape victim’s account of an alleged brutal rape and sodomy” (Braswell, McCarthy, & McCarthy, 2012, p.133) This action would sem to be be agianst ther interest of public order, the victim's rights, and the rules of the legal system;“. . . All persons who know anything about the facts in controversy are, in simple truth, the law’s witnesses” Bauer, 2008, p.483)
However, looking at this from a deontological view suggest that defense lawyers acting in this fashion are following their duty as established by the legal system.. “If [defensecounsel] can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure, or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth.” (Sokolow, 2012, p.34)
From my own perspective, I take a mostly utilitarian view of this question; I believe that the legal system fails in it's duty to both the public good and to the rights of the accused. In the case where a lawyer maligns a victim of crime (having a consequence of severe pain for that victim), getting a criminal off (having a consequence of severe pain for society) that does not match the potential for pain for a potentially innocent accused. Blackstone's ratio is that “"It is better that ten guilty persons escape than that one innocent suffer", which completely ignores the certainty( a value of the hedonistic calculus) that more then one innocent person will suffer when that many guilty are released upon the public. In addition, even by deontological guidelines, the legal duty to discredit honest witnesses fails to adhere to categorical imperatives, by putting the interest of one client over the duty to do good, and by failing the test of univerzibility, to wit, “Do I want to release a rapist upon my own wife, daughter, mother, or sister?”. Finally, returning to the utilitarian scales, it can be seen that the duty to protect an innocent man is important, but that the duty required by the legal system to discredit credible witnesses has far worse consequences.
OTOH, I don't think that the defendant has the right to secure his innocence by any means feasible. I think that the defense has the duty to see that the accused is prosecuted legally and that the State proves guilt beyond a reasonable doubt. One of the good things that the criminal justice filter serves is that unless something is screwed up, most innocent persons don't get to court. Of course, there always going to be screwups, either through bad intent or by mistake...which is why need the adversarial system, and why Sokolow suggests that defense push the limit.
So if I answer the question of whether it is more important that the public good is served or that the lawyer gets his client off, I'd hedge and say that it is a lawyer's moral duty to balance both interests up to the point where he knows he is doing the wrong thing...which to me would be suggesting a rape victim is promiscuous when he knows that has nothing to do with the crime of rape.
My point is that when a lawyer attacks a witness that he knows to be "a truthful one"; he is failing in his duty under utilitarian grounds, and that his duty may be conflicted under deontological duty; as he has a duty to his client and to the court.
The dividing line as I see it is protecting a client's INTERESTS over a client's rights. It is a lawyers duty to make sure that his client is prosecuted legally, it is not his duty to get his client found innocent of charges. In Utopia, a client protecting an innocent's clients would end up with an innocent verdict when abiding by his duty to protect the client's rights.
Which is why I stress the idea that a lawyer's moral duty is in being an officer of the court, which should protect both the public and the client. After all, it is not in the interest of the public good to prosecute innocent citizens.
Although they have a deontological duty to protect their client; they also have a deontological duty to abide by ethical boundaries.
Of course, there are two other of these concepts that are violated by that particular action:
"Do not deliberately engage in behavior that is apt to deceive the court as to the truth"
"Avoid harming others in the process of representing your client"