1:2—The Defense Lawyer's Dilemma
Welcome to the second issue of Yashar Chapters, a new newsletter from Yashar Books in which we send you complete chapters from a recent book of interest. This issue’s book is Rabbi Michael J. Broyde’s The Pursuit of Justice and Jewish Law: Halakhic Perspectives on the Legal Profession. The book dissects the religious dilemmas a lawyer faces and provides guidance on how to navigate the world of the legal profession. Rabbi Broyde—a respected rabbi and law professor, and a renowned expert on Jewish legal ethics—takes the reader through the halakhic and ethical considerations of issues such as defending a guilty client, aggressively cross-examining a witness, maintaining professional confidentiality when someone will be hurt, writing wills that are counter to Jewish inheritance law, litigating child custody in secular courts and much more. The complexity of these ethical dilemmas is matched by Rabbi Broyde’s clarity of thought and writing. Please read below the book’s chapter on defending a guilty client. This is a fascinating topic that impacts on the lives of many people.
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Having addressed the question of when it is permissible to assist the prosecution of criminals, it is now necessary to determine if one can aid accused criminals in their defense, and if so, what type of help is permitted.1 Within the American adversarial system of justice, while a lawyer may not lie on behalf of his client, he must defend his client zealously, even if he knows the case against his client is factually correct.2 This is even more so true, and of constitutional magnitude, in a criminal case, because the government bears the burden of proving guilt beyond a reasonable doubt in all such cases.
An initial question must be addressed. May a defendant, according to Jewish law, plead “not guilty” in secular court to a crime that he knows he has committed but which the government cannot prove, or must a Jew plead guilty when charged, if actually guilty? It would appear to this writer that one may plead not guilty even if one knows that he is factually guilty. According to Jewish law, a confession is not admitted in court, and in fact does not prove guilt.3 Requiring a person to plead guilty if he actually is, and thus waive his right to a trial, is tantamount to requiring a person to confess to his crime. A Jew thus may plead not guilty so as to force the government to prove its case according to law.4
While it might appear to some that a defendant is lying when he pleads “not guilty” if he knows he is factually guilty, such is a misunderstanding of the secular law involved. A defendant need not plead to any offense in American law. In the absence of any plea, a plea of “not guilty” is entered (in harmony with the American rule of innocent until proven guilty). Thus, by entering a plea of “not guilty,” a defendant does not assert that he is actually innocent-he can only do that through testimony-but only that he wishes to be tried in a court of law.5
So too, when the government has not proven its case, a defense lawyer may advise the jury to acquit his client simply because the evidence has not proven “beyond a reasonable doubt” that his client is guilty. This is true, in this author’s opinion, even if the client has told the lawyer that he is factually and legally guilty. In the American legal system, as in Jewish law, the government bears the burden of proving each element of a criminal charge, and in any situation in which the government has not done so, the defendant is legally entitled to an acquittal. Any other rule is tantamount to requiring a Jew who is actually guilty of a crime to plead guilty, even if the government cannot prove its case. A Jew, like all other citizens, is entitled to a trial in which the government meets its burden of proving guilt.6
Assisting the Guilty
Given the fact that a defendant may take steps to insure that he is given a fair trial, one might argue that a lawyer representing the defendant could take any action on his client’s behalf. This is not so. The scope of a lawyer’s role in aiding a criminal defendant is directly connected to a discussion in the Talmud which states:
It was rumored about certain Galileans that they killed a person. They came to Rabbi Tarfon and said to him, “hide us.” Rabbi Tarfon replied, “What shall I do? If I do not hide you, you will be seen. Should I hide you? The Sages have said that rumors, even though they may not be accepted, nevertheless, should not be dismissed. Go and hide yourselves.”7
The reason Rabbi Tarfon declined to aid is in dispute, and this dispute is critical to understanding the status of criminal defense work according to Jewish law.
Rashi states that the reason Rabbi Tarfon would not help these people was because if they were guilty, helping them would be prohibited. This would imply that Jewish law prohibits aiding defendants who might be guilty. Tosafot and Rabbenu Asher (Rosh)8 disagree and argue that the reason Rabbi Tarfon would not help them was because he was afraid that the government would punish him for helping criminals escape, but that helping them is halakhically permitted. Most early authorities accept the reasoning of Tosafot and Rabbenu Asher (Rosh).9 According to their explanation, any help which the government allows one to provide would be permitted, since it poses no danger to the provider (e.g., being a defense attorney).
Rabbi Shlomo Luria argues that this ruling of Tosafot and Rabbenu Asher only applies in cases where, in the aider’s mind, the guilt of the defendant is in doubt, as it was in the Talmud.10 In the case of known guilt, no help is permitted. Basing his opinion on this ruling, Rabbi Hershel Schachter states:
If a lawyer knows that his client has committed a crime, it is forbidden for him to help the criminal escape the consequences of his act, by relying on some technical legal points or other devices. The lawyer, just as any Jew, is directed by the Torah to “eradicate the evil from our midst,” and may not actively assist someone to avoid his punishment.11
Thus, according to Rabbi Schachter a lawyer may not advance “technical legal points or other devices” when the client is known to be actually guilty. On the other hand, it is apparent that the defendant must be presumed innocent by the lawyer.12
In addition, it is also important to distinguish between those situations in which the lawyer advances a defense of “technical legal points” for a client he knows to be guilty, and those situations in which the lawyer advances defenses that are true, that mitigate the seriousness of the crime, or that cast doubts on the validity of the government’s case. For example, under Rabbi Schachter’s ruling, it would seem that while a lawyer cannot advance at trial a defense of “my client did not commit the crime” when the client has informed his lawyer to the contrary,13 a lawyer may advance numerous defenses which indicate that a guilty verdict is inappropriate. Thus, he may advance an insanity defense, or a defense of necessity, duress, or inadvertence, providing that the client has told him that these mitigating factors are present, or that the lawyer reasonably believes them to be present. So too, any rule of evidence or law whose goal is one of “truth-seeking,” and whose violation by the prosecution casts doubt on the credibility of the evidence, may be invoked by a lawyer to the benefit of a client, since such rules promote justice by the court. Thus, for example, both hearsay evidence and a confession given after torture may be suppressed as the evidence’s validity may be reasonably doubted.
The status of the prophylactic rules occasionally promulgated by the Supreme Court in the field of criminal procedure could be debated.14 While these rules were not authorized in order to insure justice in a particular case, they are part of the government’s program to reduce violations of law by governmental officials and to promote justice in society at large. While the efficacy of such a policy could, and is, debated by lawyers, there is little doubt that the goals these policies seek to advance are ones which Jewish law respects, and also are a fulfillment of the obligation to eradicate injustice from society.
In the more typical case where the client does not tell the lawyer he is guilty and instead protests his innocence (notwithstanding the evidence to the contrary), it would seem that a complete defense would be permitted according to Rabbenu Asher and Tosafot. In such a case, a lawyer may advance all defenses which are tenable and which the client represents as correct.
Obviously a lawyer may also advance a defense that the facts, as stated by the government, do not constitute a crime under the relevant statute, and thus the client ought to be acquitted. For example, in a prosecution for criminal tax fraud, the defense frequently argues that not only was no crime committed, but that the tax return of the defendant was properly filed, and the IRS is misinterpreting the relevant tax law.15
Assisting the Guilty: A Second Approach
An understanding of Rabbi Tarfon’s dilemma, different from that advocated by Rabbi Luria, is possible and better explains the position of She’iltot, Tosafot, and Rosh. The She’iltot, Tosafot, and Rosh, might in fact make no distinction between known guilt and mere rumors of guilt. Rather Rabbi Tarfon might have hesitated to act solely out of fear of violating the secular law (and being punished for that violation). Under this explanation, the sole limitation upon aiding a person accused of a crime would be the danger to the aider. All aid permitted by the government (and hence without any danger to the provider), would thus be permitted. Rabbi Yaakov Ettlinger advances exactly such an explanation. He denies that there is any intrinsic halakhic obstacle to aiding criminals who seek help-and he asserts this as Rashi’s opinion as well as that of Tosafot and Rabbenu Asher (Rosh). He states:
In my opinion one could state that Rashi does not disagree with She’iltot. When Rashi states that it is prohibited to save the murderers, he does not mean that it is prohibited according to Jewish law to save them, but rather that secular law prohibits that conduct. Once secular law prohibits this conduct, Jewish law does also, since saving these individuals would involve great risk to the savior.16
If this approach is correct, and it certainly best reflects the formulation of Tosafot and Rabbenu Asher (Rosh), any form of aid legally permitted by the secular society (e.g., being a defense attorney) would be halakhically permitted, as it is only because of the danger that one may not help a criminal.17 According to Rabbi Ettlinger, the only type of aid prohibited is that which the secular government does not allow.18
Particularly in light of American law, Rabbi Ettlinger’s position appears logical. Since the secular government not only allows, but actually requires that a criminal be represented by a competent lawyer at trial (a conviction is invalid without this representation), a lawyer’s participation as a defense attorney simply insures that society fulfills its obligation to remove evil from its midst-but only in the manner that society has designated as just.19
According to both approaches, a lawyer may not assist a client in the creation of a false defense-i.e., allow his client or any other witness to commit what the lawyer knows to be perjury. Needless to say, such conduct is prohibited under relevant American law as well.20
Numerous individuals, whose guilt was never doubted when their trial began, have shown themselves through able defenses, to have been factually innocent of the charges leveled. Regrettably enough, history is also full of innocent people who were punished because of unavailable or incompetent defense attorneys. That is not to say that all defense strategies are permissible-many are not-but rather, the zealous advocacy of truthful defenses enhances, rather than detracts from justice in society. To the extent a lawyer helps his client to benefit from legal rules designed to ensure justice, such conduct is permitted, and perhaps even mandated, according to Jewish law.
One final note is needed. It is important to distinguish between the role of a lawyer in defending a particular client, and the role of a lawyer, as an informed citizen, in shaping public policy. Merely because Jewish law permits-in the opinion of some authorities-one to offer a full zealous defense for a specific client that a lawyer has agreed to defend in a criminal case, does not mean that lawyers should not seek reform of the criminal justice system even if that reform reduces either the rights of those accused of crimes or the role of attorneys in trials. However, these broader public policy issues are of no relevance when a lawyer defends a specific person charged of a specific crime. The lawyer’s goal in such a case should be to provide the best defense of that client permitted by Jewish and American law.
<![if !supportFootnotes]><![endif]> Certainly one may represent a defendant who wishes to plead guilty and only desires a reduced sentence. Such negotiations are the end result of more than 98 percent of the criminal indictments issued in the United States; see Donald Newman, “Reshape the Deal,” Trial 9:11 (May/June 1973) (“The frequency of conviction by plea approaches 98% of all those charged.”).
<![if !supportFootnotes]><![endif]> See for example, Washington D.C. Rules of Professional Conduct, Rule 1.3(a) (“A lawyer shall represent a client zealously and diligently within the bounds of the law”) and Model Code of Professional Responsibility, Canon 7 (“represent a client zealously within the boundary of the law”); but see Model Rules of Professional Conduct, Rule 1.3, which does not mention the word “zeal” in any form.
<![if !supportFootnotes]><![endif]> Maimonides, Sanhedrin 18:6; R. Norman Lamm, “Self Incrimination in Law and Psychology: The Fifth Amendment and the Halakhah,” republished in R. Norman Lamm, Faith and Doubt (Ktav, 1986).
<![if !supportFootnotes]><![endif]> See R. Yaakov Emden, She’elat Ya’avetz 2:9; R. J. David Bleich, Contemporary Halakhic Problems II:349-357 (and note 19). Rabbi David Cohen (of Gvul Yavetz) notes in a letter dated 17 Av 5754/July 23, 1994 to this author, that it is obvious that a person need not plead guilty to a crime, even if he is guilty.
<![if !supportFootnotes]><![endif]> Proof to this can be derived from the American law rule that a person who testifies that he is innocent when he is not actually innocent, can be prosecuted for perjury, but merely pleading “not guilty” when one is actually guilty is not grounds for a perjury charge as no testimony has occurred.
<![if !supportFootnotes]><![endif]> That Rabbi Tarfon (see Niddah 61a quoted in text accompanying note 7) did not advise the Galileans who came to him that if they are guilty they should turn themselves in to the authorities, indicates that a defendant can plead innocent when charged, as both fleeing and pleading innocent are a form of resisting imprisonment.
<![if !supportFootnotes]><![endif]> Niddah 61a.
<![if !supportFootnotes]><![endif]> Tosafot, Niddah 61a (s.v. atmarinkhu) and Rabbenu Asher, Tosafot ha-Rosh on Niddah 61a, both quoting R. Aha mi-Shabha, She’iltot, Numbers 129.
<![if !supportFootnotes]><![endif]> See e.g., Meiri on ibid (in the name of most authorities).
<![if !supportFootnotes]><![endif]> R. Shlomo Luria, Hokhmat Shlomo, commenting on Niddah 61a; this interpretation can also be found in the comments of R. Akiva Eiger on Niddah 61a.
<![if !supportFootnotes]><![endif]> R. Hershel Schachter, “Dina Di’Malchusa: Secular Law as a Religious Obligation”, at 121-122.
<![if !supportFootnotes]><![endif]> See Kitzur Piskei ha-Rosh, Niddah 9:5. One could argue that all defendants who have not told their lawyers that they are factually guilty, have the status of “in doubt” until conviction at trial. The overwhelming majority of defendants are in this category. It is clear that this type of reasoning does have some outer limit. For example, Rabbi Oshry concludes that Jewish law would prevent a Jewish lawyer from defending a Nazi war criminal, and discusses his response in a case when a lawyer wished to do so; see R. Ephraim Oshry, Responsa from the Holocaust 104.
<![if !supportFootnotes]><![endif]> This also violates many professional ethics rules; see chapter three. Obviously a lawyer may not use techniques at trial whose sole purpose is to confuse the finder of fact or to produce error and a reversal on appeal. Both of these tactics are unethical in American law.
<![if !supportFootnotes]><![endif]> E.g., Mapp v. Ohio, 367 US. 643 (1961). A “prophylactic rule” corresponds to the rabbinic concept of a “fence around the torah” (seyag latorah) and refers to those rules designed to remove the temptation to violate the law. Mapp, for example, ruled that illegally seized evidence will not be admitted into court. This rule created a “fence” around the Fourth Amendment’s prohibition of illegal searches and seizures by reducing the incentives on a police officer to violate the law, as the products of such searches may not be used in court.
<![if !supportFootnotes]><![endif]> It is permissible under Jewish law to challenge the IRS’s understanding (called Regulations) of the Internal Revenue code, as the executive branch of the federal government is not constitutionally given the power to interpret laws in a manner that binds citizen. That task is left to the judiciary, whose interpretation binds the other two branches, as well as the citizenry. Thus, in America, dina de-malkhuta dina only applies to laws that the judiciary sanctions as valid; see also note 13 of chapter eight.
<![if !supportFootnotes]><![endif]> R. Yaakov Ettlinger, Arukh la-Ner, commenting on Niddah 61a (emphasis added). For others who appear to adopt this approach see R. Yaakov Emden, She’elat Ya’avetz 2:9; R. Moshe Schreiber, Hatam Sofer 6:14; and R. Yaakov Breish, Helkat Yaakov 4:23. See also Asefat Zekenim, Niddah 61a and R. Yosef Shapira, Hiddushei Mahari Shapira, Niddah 61a, for other authorities who explain Niddah 61a in this manner.
<![if !supportFootnotes]><![endif]> Rashi could be arguing that secular law can halakhically prohibit this activity; see Rashi, commenting on Gittin 9b (“dinim”). Tosafot and Rosh reject this rule; see generally, R. Bleich, “State’s Authority to Punish,” at 852-857.
<![if !supportFootnotes]><![endif]> On a practical level, there is nearly no distinction between the positions taken by Rabbi Luria (Hokhmat Shlomo) and Rabbi Yaakov Ettlinger (Arukh la-Ner). The sole point in contention would be whether a lawyer could advance defenses at trial not on the issue of the person’s guilt but on procedural issues for a person who has acknowledged to the lawyer his factual guilt.
<![if !supportFootnotes]><![endif]> Such a conclusion is agreed to (albeit with somewhat different reasons) by Rabbi David Cohen (of Gvul Yavetz) in a letter to this author dated 17 Av 5754/July 23, 1994.
<![if !supportFootnotes]><![endif]> See Harry Subin, “The Criminal Lawyer’s ‘Different Mission’: Reflections on the ‘Right’ to Present a False Case,” Georgetown Journal of Legal Ethics 1:125 (1987) (stating that false defenses are improper and ethical lawyers do not use them); and Nix v. Whiteside, 475 U.S. 157 (1986) (lawyer may, and most states require that he must, inform the court of perjury by his client).
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