Most lawyers have made so profound a study of human nature as to
think that if they have shown a man to be of loose life with regard
to women they have shown him to be one that would tell needless lies
to a jury—a conviction unsupported by the familiar facts of life and
character. Different men have different vices, and addiction to one
kind of “upsetting sin” does not imply addiction to an unrelated kind.
Doubtless a rake is a liar in so far as is needful to concealment, but
it does not follow that he will commit perjury to save a horsethief
from the penitentiary or send a good man to the gallows. As to lying,
generally, he is not conspicuously worse than the mere lover, male
or female; for lovers have been liars from the beginning of time.
They deceive when it is necessary and when it is not. Schopenhauer
would say that it is because of a sense of guilt—they contemplate the
commission of a crime and, like other criminals, cover their tracks.
I am not prepared to say if that is the true explanation, but to the
fact to be explained I am ready to testify with lifted arms. Yet no
cross-examining attorney tries to break the credibility of a witness by
showing that he is in love.
An habitual liar, if disinterested, makes about as good a witness
as anybody. There is really no such thing as “the lust of lying:”
falsehoods are told for advantage—commonly a shadowy and illusory
advantage, but one distinctly enough had in mind. Discerning no
opportunity to promote his interest, tickle his vanity or feed a
grudge, the habitual liar will tell the truth. If lawyers would study
human nature with half the assiduity that they give to resolution of
hairs into their longitudinal elements they would be better fitted for
service of the devil than they have now the usefulness to be.
V
I affirm the right and expediency of cross-examining attorneys in
court, with a view to testing their credibility. An attorney’s relation
to the trial is closer and more important than that of a witness. He
has more to say and more opportunities to deceive the jury, not only
by naked lying, but by both _suppressio veri_ and _suggestio falsi_.
Why is it not important to ascertain his credibility; and if an inquiry
into his private life and public reputation will assist, as himself
avers, why should he not be put upon the grill and compelled to sweat
out the desired incrimination? I should think it might give good
results, for example, to compel him to answer a few questions touching
his professional career. Somewhat like this:
“Did you ever defend a client, knowing him to be guilty?”
“What, precisely, was your motive in doing so?”
“But in addition to your love of fair play had you not also the hope
and assurance of a fee?”
“In defending a client known to you to be guilty did you declare your
belief in his innocence?”
“Yes, I understand, but necessary as it may have been (in that it
helped to defeat justice and earn your fee) was not your declaration a
lie?”
“Do you believe it right to lie for the purpose of circumventing
justice?—yes or no?”
“Do you believe it right to lie for personal gain—yes or no?”
“Then why did you do both?”
“A man who lies to beat the laws and fill his purse is—what?”
“In defending a murderer did you ever misrepresent the character, acts,
motives and intentions of the man that he murdered—never mind the
purpose and effect of such misrepresentation—yes or no?”
“That is what we call slander of the dead, is it not?”
“What is the most accurate name you can think of for one who slanders
the dead to defeat justice and promote his own fortune?”
“Yes, I know—such practices are allowed by the ‘ethics’ of your
profession, but can you point to any evidence that they are allowed by
Jesus Christ?”
“If in former trials you have obstructed justice by slander of the
dead, by falsely affirming the innocence of the guilty, by cheating
in argument, by deceiving the court whom you are sworn to serve and
assist, and have done all this for personal gain, do you expect, and
is it reasonable for you to expect, the jury in this case to believe
you?”
“One moment more, please. Did you ever accept an annual or other
fee conditioned on your not taking any action against a certain
corporation?”
“While in receipt of such refrainer—I beg your pardon, retainer—did you
ever prosecute a blackmailer?”
It will be seen that in testing the credibility of a lawyer it is
needless to go into his private life and his character as a man and
a citizen: his professional practices are an ample field in which to
search for offenses against man and God.
The moral sense of the laymen is dimly conscious of something wrong in
the ethics of the “noble profession;” the lawyers affirming, rightly
enough, a public necessity for them and their mercenary services,
permit their thrift to construe it vaguely as personal justification.
But nobody has blown away from the matter its brumous encompassment and
let in the light upon it. It is very simple.
Is it honorable for a lawyer to try to clear a man that he knows
deserves conviction? That is not the entire question by much. Is
it honorable to pretend to believe what you do not believe? Is it
honorable to lie? I submit that these questions are not answered
affirmatively by showing the disadvantage to the public and to
civilization of a lawyer refusing to serve a known offender. The
popular interest, like any other good cause, can be and commonly is,
served by foul means when served at all. Justice itself may be promoted
by acts essentially unjust. In serving a sordid ambition a powerful
scoundrel may by acts in themselves wicked augment the prosperity of
a whole nation. I have not the right to deceive and lie in order to
advantage my fellow men, any more than I have the right to steal or
murder to advantage them; nor have my fellow men the power to grant me
that indulgence.
The question of a lawyer’s right to clear a known criminal (with the
several questions involved) is not answered affirmatively by showing
that the law forbids him to decline a case for reasons personal
to himself—not even if we admit the statute’s moral authority.
Preservation of conscience and character is a civic duty, as well as
a personal; one’s fellowmen have a distinct interest in it. That, I
admit, is an argument rather in the manner of an attorney; clearly
enough the effect of this statute is to compel an attorney to cheat
and lie for any rascal that wants him to. In that sense it may be
regarded as a law softening the rigor of all laws; it does not mitigate
punishments, but mitigates the chance of incurring them. The infamy
of it lies in forbidding an attorney to be a gentleman. Like all laws
it falls something short of its intent: many attorneys, even some who
defend the law, are as honorable as is consistent with the practice of
deceit to serve crime.
It will not do to say that an attorney in defending a client is not
compelled to cheat and lie. What kind of defense could be made by any
one who did not profess belief in the innocence of his client?—did
not affirm it in the most serious and impressive way?—did not lie?
How would it profit the defense to be conducted by one who would not
meet the prosecution’s grave asseverations of belief in the prisoner’s
guilt by equally grave assurances of faith in his innocence? And in
point of fact, when was counsel for the defense ever known to forego
the advantage of that solemn falsehood? If I am asked what would
become of accused persons if they had to prove their innocence to the
lawyers before making a defense in court, I reply that it is not for
the public interest that a rogue have the same freedom of defense as
an honest man; it should be a good deal harder for him. His troubles
should begin, not when he seeks acquittal, but when he seeks counsel.
It would be better for the community if he could not obtain the
services of a reputable attorney, or any attorney at all. A defense
that can not be made without his attorney’s knowledge of his guilt
should be impossible to him.