Proposal is 'Anathema' to Constitutional System
Congress Considers Muzzling Defense Lawyers
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.