Todd A. Berger


Whether the criminal defense attorney may ethically discredit the truthful witness on cross-examination and later during closing argument has long been an area of controversy in legal ethics. The vast majority of scholarly discussion on this important ethical dilemma has examined it in the abstract, focusing on the defense attorney’s dual roles in a criminal justice system that is dedicated to searching for the truth while simultaneously requiring zealous advocacy even for the guiltiest of defendants. Unlike these previous works, this particular Article explores this dilemma from the perspective of the techniques that criminal defense attorney’s use on cross-examination and closing argument to cast doubt on the testimony of a credible witness. It shows that, while it is ethically permissible to discredit the truthful witness, it is not uncommon for criminal defense attorneys to do so through unethical means. Further, absent voluntary compliance, current ethics rules cannot adequately prevent this type of professional misbehavior. Thus, a change in the culture of criminal defense lawyering is necessary to ensure that criminal defense attorneys recognize the value of increased compliance with the ethical dictates that govern the practice of law.