Daily Archives: September 10, 2019


So, SHG is revisiting an old debate about criminal defense lawyering, and he’s joined by Judge Kopf who has probably come over here (to LoS, that is) to re-familiarize himself with the term “epistemology”, which is now one of our wordpress “categories” since it seems to come up a lot.

The example is familiar, too:  do you “back off” of your “blistering cross” of the complaining witness when you know she’s right, that her rape accusation against your client is the truth, and that your brilliant cross will both destroy her and wrongfully get your client acquitted?

If the lawyer rips her testimony to shreds on cross, her testimony will come off as incredible to the jury and the defendant will walk. Then again, the lawyer, knowing her testimony to be truthful, also knows that a hard cross and a not guilty verdict may well destroy this complaining witness’ life. 

Does the lawyer destroy the victim or back off, knowing that it almost certainly spells conviction for her very guilty defendant?

Tedious, no?

But on a deeper level – depth being something lawyers and judges increasingly don’t do well, or at all – the nuances of epistemology are once again unknown, or at least not considered.  The hypothetical posed is absurdly that – hypothetical.  You don’t “know” that your “blistering cross” is going to result in an acquittal.  What you know is that statistically your client’s chances of being found guilty are north of 90%.  You might hedge that with the observation that in rape cases the percentages are more favorable, but the odds of conviction are still north of 70% by any sane measure.

So the dilemma never actually arises in real life.  Sometimes you should “vary the hypothetical” because the hypothetical is ridiculous.  The meaningful question is whether you should do your best to destroy a witness for an “advantage” that is just as likely to be the opposite, as one of SHG’s other commenters points out, only to be told not to go down that “rabbit hole”.


Can you, as an ethical criminal defense lawyer, balance a speculative advantage to be gained by attacking the witness against a far more certain damage to the witness – such as that the witness will fall apart and, say, harm herself – and forego the attack?  Probably.  Especially if there’s s serious downside to the attack, which in reality there always is.  As we have pointed out on other occasions, the “blistering cross” that lawyers love so much are often harmful to the client.

To be fair, though, you don’t “know” that the witness will engage in self-harm, either.  And you have no specific responsibilities to the witness, whereas you do to your client.  Beyond that, others have responsibilities for the witness:  friends, family, the prosecutor who takes the risk of calling her as a witness knowing the dangers.

We have encountered exactly this scenario in our professional life, by the way.  We assume both SHG and Judge Kopf would approve of our handling of the matter, but the route by which we might reach the same practical result and conclusion would be quite different, we suspect.

Sometimes the route matters a very great deal, however, if you want to avoid confusing people.  As we wrote recently in an unrelated context:

Zahrey reached the right result – holding that a §1983 cause of action grounded in fabrication of evidence by government officials sounded in due process – but the court also exacerbated the problem of conflating immunity with its analysis of the constitutional wrong:

“We think the right at issue in this case is appropriately identified as the right not to be deprived of liberty as the result of the fabrication of evidence by a government official acting in an investigative capacity.”

221 F.3d at 349 (emphasis supplied).

The distinction between acting in an “investigative capacity” as opposed to an “advocacy role” determines whether a prosecutor is immune, not whether a constitutional injury occurred. Conflating these two issues immediately forced the Second Circuit to address – in a rather confusing five and one half pages (221 F.3d at 349-355) – a causation question that disappears once the conflation is eliminated.

It’s important to be right, but it’s also important to be right for the right reason(s) if you want to instruct others properly.  Which is what appellate courts are supposed to be doing.


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Filed under epistemology, Striking lawyers