The Principle of Truth-Seeking

"[The] zeal of the advocate must not tempt him from the path of strict truthfulness"283

The rationale behind the adversarial criminal process is that the "truth is best discovered by powerful statements on both sides of the question".284 As an integral part of this mechanism, it is arguable that a defender has both direct and indirect duties to facilitate the search for the truth. The indirect duty is to "pursue the process from which the truth emerges";285 that is, to defend the client resolutely and present the best of his or her case. When viewed in this way, one could conclude that it is "not [his or her] job to pursue the truth",286 per se. However, it is arguable that the defence lawyer's duty to 'pursue the process' does not green-light dishonest, deceitful or misleading conduct as a means to achieving acquittal for a client. Actively avoiding such behaviour is the defence lawyer's direct duty of truth-seeking, applying to dealings with both the court and the client. In dealings with the court, the most established and concrete aspect of the principle of truth-seeking is that the defence lawyer "must never suppress or distort the truth".287 First and foremost, this prohibits lying for the client or knowingly allowing the client to lie to the court. In this respect, the defence advocate has "a primary duty to preserve the integrity of the adversary system by preventing the court or jury from being misled by the presentation of false or perjured testimony."288

Beyond this, truth-seeking both promotes and forbids (or at least discourages) certain conduct in dealing with the court. For example, the defence lawyer should assist the court by ensuring it is aware of all the evidence and law it needs. It is argued that "[c]ounsel should have the obligation of bringing to the attention of the court any authority about which he reasonably believes the court would like to know before deciding the matter before it."289 To allow the defence lawyer to "withhold precedent

283

Macmillan quoted in Du Cann R. (1964) The Art of the Advocate – London: Penguin Group, 51.

284

Ex parte Lloyd (1822) Montagu’s Reports 70n, 72 per Lord Chancellor Eldon.

285

Haar quoted in Simon W. (1978) The Ideology of Advocacy: Procedural Justice and Professional Ethics – Wis. L.R. 29, 61.

286

Ibid.

287

Savage C. (1958-1959) The Duties and Conduct of Crown and Defence Counsel in a Criminal Trial – 1 Crim. L.Q., 167.

288

Erickson W. (1981-1982) The Perjurious Defendant: A Proposed Solution to the Defense Lawyer’s Conflicting Ethical Obligations to the Court and to his Client - 59 Denv. L.J., 91.

289

from the court in the hope of a favorable judgment"290 would be to defeat the search for the truth. Additionally, to exploit errors made by the prosecution in presenting their case (for example, omitting important evidence or law) simply to advance the defendant's cause, is proscribed. As Kenneth Pye explained:

"The ineptitude or lack of diligence of opposing counsel or of the court is no justification for increasing the likelihood that a judge will incorrectly ascertain or apply the law. Neither is the understandable attitude of the client that his counsel should take no action that ‘will help the other side.’"291

Refusing to correct an obvious or basic mistake purely because it has been made by the opposition frustrates truth-seeking; such behaviour could be considered devious and underhand.

Some theorists have suggested that truth-seeking would expect defence lawyers to refrain from destroying the credibility of an honest witness using aggression or chicanery:

"[T]he argument is advanced that a cross-examination may be proper when a lawyer believes the witness is untruthful, inaccurate in recollection or narration, or has told less than the whole story, but not when the lawyer believes (or knows) that the witness has honestly narrated an accurate version of the events he perceived."292

Dealings with the client should also be driven by the principle of truth-seeking. Arguably, defence lawyers should avoid 'selective' questioning of their clients about the facts of their case and the nature of their defence. Bearing in mind that confidentiality is designed to encourage the defendant to confide fully in his or her representative, some believe that "the lawyer must seek the truth from the client, not shun it."293 Therefore, a defence lawyer should grill the client as a court might, rather than skip over difficult or damaging issues. This expectation accords with the obligation not to lie to the court; a full and frank exchange with a client will mean the defence lawyer is better 290 Ibid. 291 Ibid. 292 Ibid., 945. 293

informed, and as a result can ensure that the court will not be misled. However, it is arguable that such an approach is paternal, elitist and arrogant; it automatically assumes that a criminal client will lie or attempt to mislead the court, and also suggests that it is the responsibility of the defence lawyer to do what is, effectively, the prosecution's job. Some commentators have therefore advanced the argument that the duty to seek the truth simply requires defence lawyers to "advise witnesses and clients to testify only to what they believe in their own minds to be the truth and warn them of the pains of perjury and of the danger of effective cross-examination of a witness who is not truthful."294

The main justification for the duty of truth-seeking is derived from the rationale behind the adversary system itself. It is widely accepted that the "ascertainment of truth remains an important fundamental value of our system of criminal justice".295 It is arguable that truth-seeking is the primary reason for its existence and that everything connected to criminal justice flows from this premise. Defence lawyers must protect the interests of a defendant in this system (including those guilty of offences), but it should be remembered that they are not assigned their role with the sole purpose of securing victory for the accused. Although adversarial culture works on the basis that opposing views of an issue lead to a more accurate result, it is often the case that "[t]he struggle to win, with its powerful pressures to subordinate the love of truth, is often only incidentally, or coincidentally, if at all, a service to the public interest."296 The defence lawyer is expected to be a partisan for the defendant, just as the prosecutor is expected to be a partisan for the state; however, this clash of opposing forces against each other should not perpetuate an "irrational battle",297 but work "as a means to accurate fact- finding."298 If one accepts the conception that "sees truth as the central goal of adversary advocacy" then defence lawyers "should forgo sorts of conduct incompatible with that goal".299 This would seemingly rule out the forms of behaviour discussed above. At the most extreme, for a defence lawyer to allow a client to lie to a court and excuse it as 'partisanship' would be plainly wrong; as John Noonan stated, "[t]o furnish [a court] with a lie is to mock impartiality, to mislead rather than to inform, and to

294

Pye K. (1978) The Role of Counsel in the Suppression of Truth – Duke L.J., 949.

295

Ibid., 959.

296

Frankel M. (1975) The Search for Truth: An Umpireal View - 123 U. Pa. L. Rev., 1055.

297

Simon W. (1978) The Ideology of Advocacy: Procedural Justice and Professional Ethics – Wis. L.R., 35.

298

Simon W. (1998-1999) ‘Thinking Like a Lawyer’ About Ethical Questions – 27 Hofstra L.R., 8.

299

stultify the decisional process rather than to make it an exploration leading to mature judgment."300

Such tactics might advance a client's cause, but when considered in the context of the adversarial truth-seeking process, it seems clear that to some extent "the lawyer’s duty to advance his client’s interests must be subordinated to the fundamental purpose of truth-seeking which brought the relationship into being."301 The principle of truth- seeking recognises that the partisan defence advocate has a unique power to influence criminal proceedings, for better or worse. Because the defence lawyer primarily works with the defendant, who may well demand victory at all costs, "situations . . . where zealous representation is synonymous with obfuscating and distorting the truth . . . are common."302 The principle of truth-seeking, like procedural justice, is a check on that power. They are reminders that the defence lawyer, alongside his or her duty to protect the client, is "an officer of the court, participating in a search for truth"303 and these two duties to the court exemplify the argument that the 'standard conception' is only part of the traditional, theoretical conception of the defence lawyer's role. In summary, the defence lawyer is not only employed by the client - he or she has "a prior and perpetual retainer on behalf of truth and justice" that is "primary and paramount".304

300

Noonan J. (1965-1966) The Purposes of Advocacy and the Limits of Confidentiality – 64 Mich. L.R., 1488.

301

Simon W. (1978) The Ideology of Advocacy: Procedural Justice and Professional Ethics – Wis. L.R., 35.

302

Hodes W. (1996) Lord Brougham, the Dream Team, and Jury Nullification of the Third Kind - 67 U. Colo. L. Rev., 1083.

303

Freedman M. (1965-1966) Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions – 64 Mich. L.R., 1470.

304