Student Review:

Simon's article challenges the justifications that allow criminal defense attorneys to use any legal means necessary to support their client.  Rather than agreeing with the traditional mode of thought, Simon proposes a different ethical basis for allowing an aggressive criminal defense in some cases.  The activities that fall within Simon's term aggressive criminal defense are not just a lawyer that pleads their client not guilty when they know that the are guilty.  [The reason this behavior is justified is to allow the entire court to determine guilt (rather than one lawyer in private), and to afford the defendant all the procedural rights of a fair trial.]  But some activities fall outside of this realm when lawyers decide to use other, less clear cut tactics to defend their clients.  Examples of these questionable behaviors include: delaying trial, presenting perjured testimony by defendants, impeaching the testimony of prosecution witnesses that the lawyer knows is truthful, and arguing that the evidence supports factual inferences the lawyer knows to be untrue.   In all of these situations, the lawyer is withholding information from judges and juries, and presenting serious ethical issues.
      Simon discusses the reasons why such tactics are sanctioned in criminal cases when they are disapproved of in civil cases, and determines that these historical justifications are not valid.  One argument is that aggressive criminal defense is necessary to counteract the power of the state.  Such tactics would protect the helpless individual against the abuse of state power.  However, Simon disagrees with this type of imagery.  Rather he suggest a defendant more often faces harassed, overworked bureaucrats rather than a power state force.  More compelling imagery would to see the defendant's opposition as the victim of the crime rather than the state.  Society desires the competing images of a prosecution that can be strong in convicting the guilty but weak in convicting the innocent.  Simon responds that aggressive defenses do neither, instead only hampering the state's ability to convict the guilty, and offering no substantial protection to the innocent.  Neither, Simon states, does aggressive prosecution really help to keep the state achieve a higher standard of practice.  Although the justification states that aggressive criminal defenses make the prosecutors and police work harder, this is not a forgone conclusion.  In fact, this may not be the result at all.  The state might work less since their efforts are not paying off, also decide to use coercive tactics, or instead get the legislature to enact such measures as increasing the severity of punishments.
      Simon also disagrees that aggressive defense provides for the dignity of the individual.  Simon feels that striving for dignity should not include delays, deceptions, and intimidation.  Likewise, Simon feels that the concept of equal opportunity for both the rich and poor do not justify an aggressive defense.  Another argument for aggressive defenses is that an individual should have the privilege against self-incrimination.  Simon points out that a lack of the privilege would not truly invade matters of privacy more than other aspects of the criminal trial.  Simon also discusses how the burden of proof, disclosure to counsel, and punishment would not be greatly effective by lawyers refusing to use aggressive criminal defense maneuvers.
      After rejecting all of these justifications, Simon asserts that there is one reason for defense attorneys to use aggressive defense tactics.  Many times lawyers are faced with situations in which punishments are disproportionately heavier on racial minorities and the poor.  In these cases, Simon believes it is justified for lawyers to use aggressive tactics to subvert excessive punishment for their clients.  However, in these cases, Simon feels that aggressive defense should not be broadly used, but rather specifically tailored to eliminate injustice.  It is only in these limited situations where defense lawyers should use aggressive defense tactics.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999