Defense lawyers are often extremely interested in whether the prosecution has all their witnesses. They will often base their legal strategy around whether they believe the witnesses will cooperate. For example, in a domestic violence prosecution, the two sides may confer at the beginning of the hearing. “What do you want to do?” the prosecutor will ask. “Do you have your witnesses?” the defense counsel will respond. If the witnesses are there, the defense may plea, but if they are not there, the defense has less of an incentive to come to a negotiated disposition. In fact, the defense may be hoping and praying that the People’s witnesses are uncooperative, as it may represent their only realistic hope of a dismissal.
I have wondered how prosecutors should handle this situation. The defense’s gamesmanship bothers me, and seems unjust. If the defendant is guilty and looking to admit his guilt, he should accept the punishment he thinks is fair. This fair punishment should not depend on the strength of the prosecution’s case. Should prosecutors tell defense counsel what their witness status is? Should they refuse to answer questions about their witnesses? Is it ethical to bluff?
The answer to the last question, at least, seems clear. The Business and Professions Code says that “[a]n attorney must employ, for the purpose of maintaining the causes confided to the attorney, only those means that are consistent with truth. (Bus. & Prof. Code § 6068(d). For example, an attorney cannot continue to represent someone who intends to commit perjury. (See Nix v. Whiteside (1986) 475 U.S. 157.) Although this section of the Code doesn’t seem to be intended to apply to plea bargaining, it does point to the larger issue: bluffing doesn’t seem to be “consistent with truth.” Criminal prosecutions are not poker games, at least not for prosecutors. The defense bar, on the other hand, seems to have no problem with acting like the courtroom is the wild west. The unfairness of the double standard applied to each side is glaring, and manifests itself in all sorts of ways.
If a prosecutor does not read the Business and Professions Code the way I do, and does bluff about his witness status, what may happen? Specifically, can a defense lawyer threaten to report her to the bar? The California Rules of Professional Conduct address threats in civil disputes:
(A) A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.
(B) As used in paragraph (A) of this rule, the term “administrative charges” means the filing or lodging of a complaint with a federal, state, or local governmental entity which may order or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature but does not include filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action.
(C) As used in paragraph (A) of this rule, the term “civil dispute” means a controversy or potential controversy over the rights and duties of two or more parties under civil law, whether or not an action has been commenced, and includes an administrative proceeding of a quasi-civil nature pending before a federal, state, or local governmental entity.
(Cal. R. Prof. Conduct 5-100 [Threatening Criminal, Administrative, or Disciplinary Charges].)
This rule, on its face, seems to apply only to civil disputes and not to criminal prosecutions. The phrase, “civil action” is specifically defined in the rule. So it seems like a criminal defense lawyer can threaten to report the bluffing prosecutor to the state bar. And it seems like prosecutors can threaten defense counsel with criminal, administrative, or disciplinary charges.
Why are threats allowed in criminal disputes but not in civil disputes? I took a very cursory look at this issue and I can’t find an easy answer. It would seem to me that the rule against threats in civil court is intended to keep both sides acting in a professional way. Why don’t we want the same professionalism on the criminal side? Threatening to have someone disbarred never helps the justice system arrive at the truth: it only leads to tension and acrimony. I think Rule 5-100 should be expanded to include criminal actions.