Disappearing Dilemmas: Judicial Construction of Ethical Choice as Strategic Behavior in the Criminal Defense Context

Abstract

Imagine the following scenario: A criminal defense attorney represents a man accused of kidnapping and murdering two children in a residential neighborhood. During the course of interviewing key witnesses, the defense attorney becomes convinced that her client was present at the scene of the murder. While her client denies having been present, his alibi changes entirely from one interview to the next. The two main witnesses that the client offers to corroborate his most recent alibi recant, suggesting to the defense attorney that both they and the defendant were actually present at the scene of the crime. Third parties confirm that these two witnesses were indeed together in the vicinity of the crime along with an unidentified male with the same height and build as the defendant. The defendant declines to take the stand at his trial, but he asks his lawyer to make his alibi the centerpiece of his defense and to emphasize the argument during her opening and closing remarks. Sensing that his counsel may harbor misgivings, the defendant adds: "Look, we both know this alibi is the best shot I've got."