Washington, DC, June 29, 1995 -- "If Congress is going to give federal
prosecutors the power to indict opposing lawyers for arguments they advance in court,
it might as well repeal the Sixth Amendment and burn the Bill of Rights," according
to National Association of Criminal Defense Lawyers (NACDL) President Gerald H.
Goldstein, of San Antonio.
In testimony on Friday, June 30, Goldstein will tell the House Judiciary Committee why
it should not legislatively overrule the recent decision of the U.S. Supreme Court in Hubbard
v. U.S. (Case No. 94-172, decided May 15, 1994). In Hubbard, the Court held that a federal
statute that makes it a crime to make a false statement to a federal agency does not apply to
statements made in judicial proceedings. Representative Bill Martini (R-NJ) introduced the
bill to reverse Hubbard by amending the statute (18 U.S.C. 1001) to include courtroom
statements.
"The Supreme Court clearly recognizes that giving government lawyers the power to
indict defense lawyers for courtroom arguments is anathema to our constitutional system of
justice," Goldstein will explain. "Lawyers often assert novel theories and test the limits of
laws as part of their vigorous representation of clients. If prosecutors were empowered to
indict them every time they misinterpreted or over-asserted law, lawyers for the accused would
have to weigh their clients' Sixth Amendment rights to effective assistance of counsel against
the risk of being targeted for prosecution themselves. The very existence of such an
intimidating power in prosecutors' hands would chill zealous legal advocacy by defense
counsel."
"Would you want to be defended by a lawyer who's worried about being charged with
a crime himself if he's too bold or ingenious in defending you? Why do we have appellate
courts to interpret the law and see that it is applied correctly? Should trial court judges be
indicted every time they're reversed on appeal?" Goldstein asks. "This proposal is essentially
the same as the new 'false pleadings' crime envisioned in the pending Senate crime bill [S.3,
section 501]. They both carry a staggering potential for abuse. It's the judge's job to decide
when lawyers go too far and censure them for it. This bill would criminalize traditional trial
tactics as common and proper as entering a not guilty plea or making a closing argument on
behalf of a guilty defendant."
Copies of Mr. Goldstein's congressional testimony are available from NACDL.
National Association of Criminal Defense Lawyers (NACDL)