Red Teaming the Criminal Case
Missouri criminal-defense lawyer Randy England has had a string of interesting, provocative posts in recent days (I’ve added him to the blawgroll). Here, he blogs about “Cheatin’ prosecutors and blind defense attorneys”. (New York criminal-defense lawyer Scott Greenfield, inspired, took up the subject here.)
Here’s the money quote from Randy’s post:
I’ll give the client a sympathetic ear, but I do him no favor by pretending there is only one side to a story: his. Above all, I want a jury to believe me when I tell them something. I want them to see me playing fair. Only an idiot tries to trip up a truthful witness with tricks designed to flush out a liar. When it’s over, the witness looks better than ever and the defense attorney looks a like a failed bully. And dishonest. Which is really too bad, because he probably really believed the witness was a liar. Why? Because he was a cheerleader instead of an advocate. —
More than once I’ve seen a defense case fail miserably because defense counsel treated what the accused said as the gospel truth. Virginia prosecutor Ken Lammers (of the CrimLaw blog) gives an example of a defendant who probably shouldn’t have been allowed to get on the stand and tell his story.
Sometimes the stories our clients tell us are true. Often they are not. Our clients lie to us for myriad reasons; sometimes they are lying to themselves as well. We criminal-defense lawyers must, of course, remain objective about our clients’ stories, and be willing to allow our belief in those stories to be challenged and tested.
More than that, though, we should constantly be playing the red team, seeking evidence that our clients’ stories are false, and testing their stories against the information we get from other sources. For example, we enlist other lawyers to practice-cross our clients who might be testifying, so that we can discover any weaknesses in their testimony before they take the witness stand. We also use forensic reenactment techniques to reveal the hidden truths in our clients’ accounts.
If a client’s story stands up to our own red teaming, that’s no guarantee that it is true, but it will probably withstand the State’s case. If a client’s story collapses like a house of cards when we red team it, we have to consider whether that is the story to tell at trial. A jury of twelve can be a pretty good lie detector and, like Randy says, we want the jury to see us playing fair.
There are lessons here for the client as well.
First, don’t expect your lawyer to take your words as gospel. If your lawyer believes your story uncritically, she’s not doing you a favor. Expect your lawyer to put your story to the test. Expect her to challenge you. When she does, she’s working for you. If you are telling the truth, it will withstand scrutiny.
Second, if you lie to your lawyer and she proceeds to trial based on that lie, she’s likely to be the one who winds up looking like a failed bully, but you’ll be the one who goes to jail. You don’t know what the evidence is against you, or what its legal significance is, and there’s a fair chance that your lie is going to backfire. If you tell the truth, however, and if you have a good lawyer, there’s a fair chance that she’ll find a winning defense within the truth.
Finally, when you hire a criminal-defense lawyer, the time she can spend on your case is not infinite. Any time spent running down a rabbit trail is (in most cases) wasted time. I want my clients to tell me the truth from the beginning. If I have to peel away too many layers of the onion to get to the truth, I’m wasting time that could better be spent finding the defense within the truth. A client should determine whether his lawyer wants the truth and, if she does, not give her anything else. If your lawyer expects the truth from you, and you lie to her, you’re betraying her trust.
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