SECTION I: Being a Lawyer In his book So You Want to Be a Lawyer?, William B. Nourse defines a lawyer as someone ―who is trained in the knowledge, interpretation, and application of laws.‖ Lawyers must be both counselors knowledgeable enough about the law to give sound advice regarding it, advocates acting as dedicated spokespeople for their clients, and finally problem solvers ready and willing to help people resolve their legal issues. To fulfill these different roles, lawyers must have certain personal characteristics. First of all, they must enjoy working closely with people to resolve problems. They must be able to empathize while still remaining analytical. They must be good at educating others on subjects which they do not understand. They must be excellent writers and speakers, able to clearly articulate ideas and arguments. They must actually enjoy arguing, advocating a particular position; and they must be able to argue both sides of a conflict. Finally, they must be extremely detail-oriented, dedicated to finding the facts. Though being a lawyer is an exciting career, it is also very demanding, involving quite and bit of reading and studying as well as confronting complex moral and ethical issues. THE EDUCATIONAL PROCESS Aspiring lawyers start with an undergraduate degree, not necessarily in any field pertaining to law. A well-rounded liberal arts education is preferable, perhaps with a major in political science, English, history, criminology, psychology, sociology, accounting, economics, philosophy, or any other major which is tangentially related to the law. Some universities offer pre-law tracks in these majors, but this is not necessary for admittance into law school. Upon entrance, there is no expectation of legal knowledge. Accordingly, the Law School Admissions Test (or LSAT) does not require any specific legal knowledge either. It is a three and a half hour test containing four sections: two on logical reasoning, one on analytical reasoning, and one on reading comprehension. There is also a writing section, in which the test taker is presented with a case study of a controversial situation and asked to argue for one side of the issue. Entrance into law school programs is incredibly competitive. The programs usually last for three years, culminating in a J.D. or Juris Doctorate degree. The following is a sample list of course names that would be offered in a typical law school program: Legal Research & Writing Constitutional Law Legal Profession: Law & Ethics of Lawyering Professional Skills Contracts Criminal Law Torts Civil Procedure & Practice Equity Evidence Pleading Estates Family Law Tax Law Labor Law Environmental Law Health Law In addition to these courses, law students often participate in seminars on more specific topics, such as capital punishment or entertainment law. In addition, many law schools require internships or externships, which give students practical working experience at a local firm or other community organization. PASSING THE BAR After receiving their J.D. degree, aspiring lawyers still have to pass the State Bar Exam in order to be permitted to practice law. The test consists of 200 multiple choice questions on federal law regarding Contracts, Torts, Real Property, Criminal Law, Constitutional Law, and Evidence, followed by six essays which can be drawn from any number of subjects, many of them dealing with state-specific law. Once they have passed the bar exam (and many people do not without several tries), law students are awarded a Certificate of Admission to their state Bar Association, which certifies them to practice law. They also have to take the Oath of Attorney, which reads: I do solemnly declare: 1. I am fully subject to the laws of the State of Washington and the laws of the United States and will abide by the same. 2. I will support the constitution of the State of Washington and the constitution of the United States. 3. I will abide by the Rules of Professional Conduct approved by the Supreme Court of the State of Washington. 4. I will maintain the respect due to the courts of justice and judicial officers. 5. I will not counsel, or maintain any suit, or proceeding, which shall appear to me to be unjust, or any defense except as I believe to be honestly debatable under the law, unless it is in defense of a person charged with a public offense. 6. 5)I will employ for the purpose of maintaining the causes confided to me only those means consistent with truth and honor. I will never seek to mislead the judge or jury by any artifice or false statement. 7. I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compensation in connection with the business of my client unless this compensation is from or with the knowledge and approval of the client or with the approval of the court. 8. I will abstain from all offensive personalities, and advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which I am charged. 9. I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay unjustly the cause of any person. After being certified to practice law, beginning lawyers usually spend several years getting enough clients to establish a practice and reputation. Most lawyers start out by joining an established firm, then eventually start their own practice. Another common career path for lawyers just starting out is to go into government service. This can be parlayed into a career as a state prosecutor or District Attorney, a position doing pro bono work for public service organizations, or even a job with the Attorney General of the United States. After they have been working a while, lawyers often go into politics and become officials or judges. The possibilities are endless. SECTION II: Legal Ethics The American Bar Association’s Model Rules of Professional Conduct are the guiding force in legal ethics and the professional behavior of lawyers. Here are some highlights from the Pennsylvania Code, which relate to either to general proper conduct or the specific ethical issues raised in Minor Demons: PREAMBLE: A Lawyer's Responsibilities 1. A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having a special responsibility for the quality of justice. 2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others. 3. In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. 4. In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. 5. A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. 6. As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. 7. Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service. 8. A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. 9. In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. 10. The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts. 11. To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession's independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. 12. The legal profession's relative autonomy carries with it special responsibilities of self- government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. 13. Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship. RULES Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer (a) A lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Rule 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. Rule 1.4 Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Explaining Matters – The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent. Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. Withholding Information – In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interests or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c). (b) A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3. (c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interests or property of another; (3) to prevent, mitigate or rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or had been used; or (4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (5) to secure legal advice about the lawyer’s compliance with these Rules; or (6) to effectuate the sale of a law practice consistent with Rule 1.17. (d) The duty not to reveal information relating to representation of a client continues after the client- lawyer relationship has terminated. Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. In becoming privy to information about a client, a lawyer may foresee that the client intends or learn that the client has caused serious harm to another person. However, to the extent that a lawyer is required or permitted to disclose a client's purposes or conduct, the client may be inhibited from revealing facts that would enable the lawyer effectively to represent the client. Generally, the public interest is better served if full disclosure by clients to their lawyers is encouraged rather than inhibited. With limited exceptions, information relating to the representation must be kept confidential by a lawyer. Rule 1.7 Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent. Person Paying for a Lawyer's Services – Lawyers are frequently asked to represent a client under circumstances in which a third person will compensate the lawyer, in whole or in part. The third person might be a relative or friend, an indemnitor (such as a liability insurance company) or a co- client (such as a corporation sued along with one or more of its employees). Because third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer's independent professional judgment and there is informed consent from the client. Sometimes, it will be sufficient for the lawyer to obtain the client's informed consent regarding the fact of the payment and the identity of the third- party payer. If, however, the fee arrangement creates a conflict of interest for the lawyer, then the lawyer must comply with Rule. 1.7. The lawyer must also conform to the requirements of Rule 1.6 concerning confidentiality. Rule 1.14 Client with Diminished Capacity (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests. The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody. So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. The fact that a client suffers a diminished capacity does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client's interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client's behalf. If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. Mandatory Withdrawal – A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation. Rule 3.4 Fairness to Opposing Party and Counsel (a) A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value or assist another person to do any such act. (b) A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’ testimony or the outcome of the case; but a lawyer may pay, cause to be paid, guarantee or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying, (2) reasonable compensation to a witness for the witness’ loss of time in attending or testifying, and (3) a reasonable fee for the professional services of an expert witness; (c) When appearing before a tribunal, a lawyer shall not assert the lawyer’s personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but the lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to the matters stated herein; or (d) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information and such conduct is not prohibited by Rule 4.2. Rule 3.6 Trial Publicity (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of the matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) he identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). Rule 4.1 Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person, or fail to disclose a material fact to a third person when disclosure is necessary to avoid aiding and abetting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. Rule 4.2 Communication with Person Represented by Counsel In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation. This Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates. The Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule. Rule 4.3 Dealing with Unrepresented Person (a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. (b) During the course of a lawyer’s representation of a client, a lawyer shall not give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the lawyer knows or reasonably should know the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client. (c) When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer should make reasonable efforts to correct the misunderstanding. SECTION III: Cross-Examination The following comes from law professor J. Alexander Tanford’s textbook The Trial Process: Law, Tactics and Ethics (Third Edition, published by LexisNexis 2002). His description of cross- examination procedure and techniques (perhaps especially what he says not to do) gives a good idea of the sort of tactics Diane might have used in the ball peen hammer case. INTRODUCTION If cross-examination is not usually a battle of wits between a scheming witness and a clever attorney, how should it be understood? Like direct examination, it is primarily a method of proving your case by eliciting testimony from a witness. That witness has given information on direct examination that favors your opponent, and now you must pick over what remains to find the few nuggets that favor your own theory of the case. Its success depends not on your ability to ask clever questions, but on your ability to control the flow of information so that the witness’s testimony is limited to the selected items you want to bring out. Some witnesses will be hostile, some suspicious, and some defensive. None will react with gratitude when you attack their credibility. If you fail to control the cross-examination, the chances are that the witness will end up repeating the harmful direct examination and explaining away the weaknesses in it that you wanted to emphasize. On direct examination, witnesses are controlled through preparation and rehearsal. On cross-examination, however, it is usually impossible to rehearse, so you will have to rely on meticulous preparation. Cross-examination is a dangerous foray behind enemy lines. The only way such incursions can be successful is if they are carefully planned, tightly controlled, and thoroughly disciplined. THE RIGHT TO CROSS-EXAMINE It is safe to say that all litigants have the right to cross-examine witnesses who give adverse testimony. For defendants facing criminal charges, this right is found in the Sixth Amendment guarantee that the accused has the right ―to be confronted with the witnesses against him.‖ In civil cases the right to cross-examine is part of the fundamental due process to which all parties are entitled. However, this does not mean that cross-examination is completely unbridled in scope and duration. A party is entitled to a full and fair opportunity to cross-examine, but not to raise irrelevant issues, mislead the jury, or browbeat witnesses. The right of cross-examination encompasses not merely the right to ask questions, but also the right to elicit testimony. A witness can and should be compelled by the judge to answer proper questions. Continued refusal to answer may subject the witness to punishment for contempt. In extreme cases, where cross-examination is effectively denied, the court may strike out all or part of the direct examination or grant a mistrial — even if the denial of an opportunity for full cross- examination is no one’s fault. Whether the direct examination must be stricken because of the witness’s failure to submit to cross-examination is largely a discretionary decision for the trial judge. It depends not on whether the witness was justified in not answering, but on whether it is fair to permit the direct to stand unchallenged. CONTENT OF CROSS-EXAMINATION The scope of cross-examination is more limited than direct. You may go over any of the topics covered on direct examination, repeating favorable facts and bringing out new information related to them; and you may test the perception, memory, and credibility of the witness. All jurisdictions permit cross-examination that tests the credibility of the witness and the weight to be given his or her testimony. The courts recognize at least eight categories of permissible impeachment: 1. Lack of opportunity or physical inability to reliably perceive the events about which the witness testified, e.g. a witness’s intoxication at the time of the event 2. Memory problems, either inherent in an event long past or particular to the witness, including psychiatric history affecting ability to recall events accurately 3. Possible distortions caused by a witness’s poor communication skills 4. Bias, interest, prejudice, or other emotional traits that could cause a witness to testify falsely 5. Prior criminal convictions 6. Prior acts of misconduct or dishonesty reflecting adversely on veracity 7. Prior inconsistent statements 8. A bad reputation in the community for truth and veracity All cross-examination is subject to two provisions in the Rules of Evidence. Rule 403 permits the court to exclude evidence of slight probative value if there is a substantial risk of ―unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.‖ Rule 611(a) permits the court to curtail cross-examination to ―protect witnesses from harassment or undue embarrassment.‖ On cross-examination, a lawyer ethically may only ask about or refer to evidence if the lawyer has a good-faith basis for the question. This is a two-part standard requiring both a factual and a legal basis for your questions. You must have a factual basis for asking about, suggesting the existence of, or alluding to evidence at trial. That requires some objective indication that the fact you seek to elicit is true, such as a deposition, statement, interview, or document that leads you reasonably to believe the witness you are cross-examining will confirm it. For example, before you ask a witness if she was drunk, you must have some concrete basis for believing that she was. Wishful thinking, intuition, impressions based on demeanor, and simple curiosity are not adequate to justify asking a leading question that suggests the evidence might be true. Your basis does not have to be admissible evidence in its own right — it can be unsubstantiated rumors, anonymous phone calls, or confidential information gained from your client. You must also have a legal basis for asking a question. The evidence you seek must be admissible, you must lay the proper foundation, and you must put your questions in proper form. A recurring problem of cross-examination is the propriety of intentionally creating a false impression through the selective use of evidence, trickery, and half-truths. Some attorneys think there is nothing unethical about presenting and relying on truthful but misleading evidence if it is genuinely beneficial to the client and increases his chances of acquittal. Francis Wellman’s classic THE ART OF CROSS EXAMINATION, [on the other hand,] sets a higher ethical standard. The purpose of cross-examination is to ―catch truth,‖ not to make the false look true and the true, false. THE FORM OF CROSS-EXAMINATION Like direct examination, cross-examination is a question-and-answer process in which the attorney must ask proper questions and the witness provide responsive answers. Also like direct examination, the trial judge has discretion to control the mode and order of questioning. Unlike direct examination, however, cross-examination may be conducted (and usually is) by leading questions, although the judge has discretion to curtail questions that become misleading or abusive. The right to ask leading questions carries with it an obligation that you will ask clear, coherent questions. If a question is incoherent, vague, compound or ambiguous, and if it is likely to confuse the witness or jury, the other attorney may object and the judge can force you to rephrase the question in a clearer manner. Leading questions are permitted, but not misleading questions. Contrary to what we see on television, an attorney may not ask misleading or trick questions, misquote or distort the evidence, nor frame questions in such a way as to elicit half-truths or make unproven factual insinuations. Despite what you see on television, sarcastic comments, asides to the jury, and the browbeating of witnesses are not permitted on cross-examination. Asking rhetorical questions, making speeches and comments instead of asking questions, and stating one’s personal conclusions are prohibited as being ―argumentative.‖ The word argumentative refers not to arguing with a witness, but to making remarks that belong in closing argument. Arguing with the witness, making personal comments to the witness, shouting or engaging in intimidation of the witness is referred to as ―badgering.‖ Both are prohibited. To be argumentative, a question must be more than just leading. A leading question seeks information — the lawyer who asks it wants the witness to agree to the lawyer’s version of the facts. An argumentative question is one in which the lawyer wants to make a speech to the jury and does not care what the witness says. There are five common types of argumentative questions: 1. Speech-making (always recognizable, because lawyers turn toward the jury with smirks on their faces and raise their eyebrows just before asking the question) Q: So, Mr. Moutardier, since you testified you were looking the other way, you really have no idea what color the traffic light was, do you? 2. Summarizing testimony Q: You were fifty feet away? A: Yes. Q: It was night? A: Yes. Q: There was no moonlight? A: No. Q: And you saw the scar on his cheek? A: Yes. Q: So you are asking the jury to believe you could see a scar on a man’s cheek from fifty feet away on a dark night? Summarizing is not always objectionable. The judge may allow it when you are asking transitional questions, or refreshing the witness’s and jurors’ memories so that subsequent testimony will be in context. A summary question is also common when testimony is resumed after a recess. 3. Pursuing a line of questions despite witness’s denial of knowledge Q: Weren’t you the one who robbed the store? A: No, I wasn’t even in town. Q: You pulled the gun on the clerk, didn’t you? A: No. Q: And you asked for money? A: No. Q: And you pulled the trigger, didn’t you? 4. Comments to the jury (usually attempts at sarcasm not in question form) Q: You claim to have seen the scar on his cheek from fifty feet at night? A: Yes. Q: You have remarkable vision, Mr. Pryor. Did you see anything else? 5. ―Would-it-surprise-you‖ questions, in which the attorney states facts either not yet in the record or testified to by other witnesses Q: Is it your testimony that the defendant was driving normally? A: Yes. Q: Would it surprise you to know that he had .08 percentage of alcohol in his blood that day? Badgering a witness consists of making an irrelevant personal attack on or trying to intimidate the witness. It is also objectionable. For example: Q: You were a witness to the accident? A: Yes. Q: You went back to your S.U.V. to get your video camera? A: Yes. Q: Why didn’t you help the poor victim? A: I don’t know. Q: You just left her lying in the road bleeding? A: I guess. Q: You didn’t even bother to see if she were dead? A: No Q: You just walked away from a bleeding woman? A: Yes. Q: You never even tried to help her? A: No. Q: You didn’t even have the human decency to see if she needed help? The temptation to use a sarcastic tone or make sarcastic remarks when cross-examining a witness who has testified to absurd or ridiculous facts often is irresistible. It is one of the most dangerous tactics to adopt, since it depends entirely for its success on the jurors’ agreeing with you that the testimony was as ridiculous as you thought. If the jurors disagree, you have accomplished ―negative persuasion.‖ Sarcastic remarks also violate the rule against being argumentative during cross- examination, and any persistent use of sarcasm is ground for being held in contempt. In most cases, it is better to wait until closing argument to point out the improbability in the testimony. Still, there are successful trial lawyers who believe that occasional sarcasm, when you are certain the jurors will agree with you, can be effective. SECTION III: The Miranda Decision THE CASE On Saturday March 2, 1963, an eighteen year-old woman who worked at a theater concession stand in Phoenix, Arizona, was walking home from work alone in the dark when a car backed out of a nearby driveway and pulled up to the curb beside her. A man got out of the car and began walking towards her. As he passed her on the sidewalk, he grabbed her around the waist and put his hand over her mouth, saying, ―If you don’t scream, I won’t hurt you.‖ He then shoved her into the back seat of his car and bound her ankles and wrists. He held a knife to her throat and told her to stay quiet and still, then got into the driver’s seat and sped off. After driving for about half an hour into the desert outside Phoenix, he parked the car, climbed into the back seat and ordered the woman to remove her clothes. When she refused, he did it for her. Then, saying, ―you can’t tell me you’ve never done this before,‖ he pushed her down and raped her, ignoring her cries for mercy. Afterwards, he ordered her to get dressed and lie down in the back seat, facing the rear of the car, and he drove her back to her neighborhood. Before he let her out of the car, he said, ―Whether or not you tell you mother what happened or not is none of my business. But pray for me.‖ With that, he drove away. This man was twenty-three year-old Arizona resident Ernesto Miranda, who as a result of this heinous crime would become a symbolic household name in the United States. Miranda was apprehended soon after the crime thanks to the victim’s description of his car, which had a piece of rope attached to the back of the driver’s seat as a sort of handle. The young woman’s brother-in-law aided in the capture as well, obtaining Miranda’s license plate number when he noticed a car driving suspiciously slow around their block. The car indeed belonged to Miranda, but he had left the listed address a week earlier. Detectives were able to obtain his current address from the post office, however, and they quickly placed him under arrest. Before undergoing questioning, Miranda was presented to the victim in a lineup. She was unable to definitively identify him, but as an intimidation tactic, the police told him he had been positively identified. In the two-hour interrogation that followed, Miranda confessed not only to the rape in question, but also to the attempted rape and robbery of another woman, and the assault and robbery of yet another. The detectives had him write out his confession on a piece of paper which had a paragraph at the top stating that he understood his rights and was submitting his confession voluntarily. Miranda was charged with the crimes of rape and kidnapping the first degree, as well as with a lesser crime of robbery. As he was unable to afford a lawyer, attorney Alvin Moore was appointed to represent him by the justice of the peace. Though he was an older, established lawyer, Moore was paid only $100 for the job, and another $100 for the later appeal. Over the course of the entire trial process, he made no secret of the fact that he was disgusted by having to defend such a client. Miranda had been in a good deal of legal trouble before this, dropping out of school and spending several periods in a reform school for juvenile delinquents on charges of auto theft, burglary, and attempted assault and rape. He also spent time in jail after being arresting for peeping into people’s windows and later for vagrancy and driving a stolen car. He joined the army at the age of seventeen, but out of his fifteen months in the service (prior to his undesirable discharge), six were spent in the stockade. Moore decided to pursue an insanity plea for Miranda, claiming that he was mentally ill and therefore had not known what he was doing at the time of the crime and was incompetent to stand trial. Miranda was subsequently examined by several psychologists, one of whom declared him to be ―psychologically immature and unstable,‖ but not mentally impaired. Another called him ―emotionally ill‖ and thought he suffered from a sort of schizophrenia, but still conceded that he was able to determine right from wrong. This consensus prevented the insanity plea from going forward, and Moore was left without many options. Miranda’s original trial for robbery lasted only a few hours, as he was easily convicted on the evidence of his confession and the victim’s testimony. It was his trial for kidnapping and rape (which took place June 2, 1963), however, which would become famous. His attorney strategized to keep the jury from seeing Miranda’s confession because he had been originally questioned without a lawyer present to advise him. This tactic did not work, however, and the confession was received into evidence in accordance with the standing law of that time, which maintained that all voluntary confessions are admissible evidence. Moore also tried the tactic of proving that because the victim had not resisted Miranda strongly enough, she must have consented to the sexual act. The young woman had already been hampered by suspicions of dishonesty when she was examined at the hospital after reporting the rape, as she claimed she had been a virgin at the time but showed no evidence of bleeding. She was given a polygraph test at that time, but the results were inconclusive. However, Moore’s ―blame the victim‖ strategy proved ineffective also, as he presented no good evidence that she was lying. Miranda himself did not testify at the trial because if he had, his past criminal record would have been released to the jury, no doubt damaging his credibility. This also would have backed up the assumptions of the police officers who questioned him: they thought he must be aware of his rights by now, having been convicted of numerous previous crimes, and so did not need to be advised. Nevertheless, Miranda was convicted of both rape and kidnapping and sentenced to between twenty and thirty years in prison, with his robbery conviction adding another twenty to twenty-five years on top of that. After Miranda was sent to prison, Moore appealed the conviction to the Arizona Supreme Court, but they upheld the lower court’s decision. By the time this process had been exhausted, Miranda had already been in jail for two years (where he was working as a barber). Following the appeal, Moore abandoned the case, and it seemed that would be that. Miranda himself revived the case by writing a statement asking the U.S. Supreme Court to review his case. The Phoenix Office of the American Civil Liberties Union found out about Miranda’s case and took an interest, assigning two prominent lawyers to represent him, John J. Flynn and John P. Frank. In 1965, the Supreme Court agreed to hear Miranda’s case, along with three other cases involving issues of police interrogation. Miranda’s was listed first because it was the first brought to the court’s attention, and that is why it is his name which has become synonymous with the decision. The argument which Flynn and Frank pursued was not that Miranda was innocent, but that he was entitled to a new trial. The focus was not on the circumstances of his particular case, but on the broader issues of constitutional law it raised. Miranda’s attorney’s cited the Supreme Court case Escobedo v. Illinois as precedent. In that case, the Court ruled that suspects in custody must be allowed to consult with their lawyers if they request it. The accused in that case, Danny Escobedo, had been deliberately lied to by the police, who told him that his lawyer did not want to see him. The argument placed by Flynn and Frank was that this right to counsel should not be available only to those who are ―well-educated enough to know about it,‖ but to anyone accused of a crime. The cases reviewed at the same time as Miranda v. Arizona were: Vignera v. New York, in which the accused had been interrogated and signed a confession, but was not informed of his right to remain silent California v. Stewart, in which the defendant was convicted despite not being informed of his rights at all; this case had actually been reversed by the California Supreme Court, and it was that decision which was being appealed Westover v. United States, in which the defendant signed a confession like Miranda’s, with the paragraph at the top of the form being the only information given to him regarding his rights On June 13, 1966, the Court ruled, with a 5-4 majority, that all four of these cases were entitled to new trials. The justices at the time of the case were Earl Warren (the Chief Justice), Hugo Black, William O. Douglas, William Brennan, and Abe Fortas, who favored the decision, and Tom Clark, John Harlan, Potter Stewart, and Byron White, who dissented. This decision, which would quickly become known as the ―Miranda Decision,‖ contained several rulings. First, that suspects must know before interrogation begins that they have the right not to answer questions and that what they can and say will be used against them. They must also know that they have the right to have an attorney present during questioning, and that they are entitled to a government-funded lawyer if they cannot afford their own. In addition, the police must be able to prove that, in the event of a confession, the suspect know his or her rights and freely decided to give them up. This ruling would be formalized with what we now know as the Miranda warning (―you have the right to remain silent . . . ‖), initially printed onto cards for police officers to carry around with them. Soon they, along with just about everyone else in the country, had the warning memorized, as it completely changed law enforcement and pervaded pop culture. To waive their rights, suspects had to sign forms that stated those rights and their acknowledgement of them. It is estimated that around 80 percent of suspects still agree to waive their rights and submit to questioning, regardless of the warning. Now, due to the 1979 Supreme Court case North Carolina v. Butler, the waiver can even be oral instead of written. Ernesto Miranda was retried in 1967 and eventually convicted on other evidence – namely the testimony of his ex-girlfriend Twila Hoffman, who said that Miranda had admitted the rape to her when she visited him in prison. She also claimed that he had asked her to visit his victim, to show her their baby as a play on her sympathies, and even to tell the young woman that Miranda would be willing to marry her if she dropped the charges! Miranda was sent back to prison for the duration of his original sentence; by now he was very popular with the inmates for his involvement in this landmark case. His attorney attempted to take the case back to the Supreme Court, but they declined to hear it. After his release on parole in 1972, Miranda made money by selling signed ―Miranda rights‖ cards. He was sent to jail again in 1975 for parole violation but was released soon after. He died in 1976 at the age of thirty-five, stabbed to death in a bar fight. The man accused of his murder reportedly invoked his Miranda rights to remain silent and was never convicted of the crime. CONSTITUTION & CONTROVERSY The Miranda ruling was based on the Fifth and Sixth Amendments to the Constitution. The Fifth Amendment states, among other things, that no one ―shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.‖ The Sixth Amendment guarantees the right to a ―speedy and public trial,‖ as well as to the ―assistance of counsel for his defense.‖ The latter is what Miranda’s attorneys based his Supreme Court appeal on. These Constitutional rights were generally only applied in federal cases until 1963, when the case Gideon v. Wainwright determined that they should be equally and fairly applied to all cases in which the suspect was accused of a felony punishable by a year or more in prison, as per the Fourteenth Amendment’s clause guaranteeing ―due process of law.‖ Another Supreme Court case, Powell v. Alabama in 1932, had already determined that a defendant was entitled to the ―guiding hand of counsel in every step of the proceedings against him.‖ Despite this Constitutional justification, the Miranda Decision sparked controversy immediately. It was understandably unpopular with prosecutors and police officers, as it made their job potentially much more difficult. Detractors to the ruling argued that it would cause many criminal cases to be thrown out on mere technicality (which, of course, it has), thus protecting criminals rather than the law-abiding. Boston police commissioner Edward L. McNamara was a particularly strong dissenter at the time, declaring that ―criminal trials no longer will be a search for truth, but a search for technical error.‖ Supporters of the ruling saw it as a way to safeguard against police abuse and coerced confession. Prior to this case, the only real restrictions on police interrogation of suspects was that they could not induce confession through means of violence or deprivation of sleep or food, or through the threat of these means (once very common tactics). Miranda supporters also believe that the warnings give a chance of avoiding self-incrimination to suspects who are, for example, young, in shock, developmentally impaired, or not fluent in English. Some law enforcement officials even recognized a bright side to Miranda, deciding that eventually the changes would force police investigation techniques to improve, becoming more specific, scientific, and effective. The statistics regarding the Miranda Decision are just as controversial, often directly contradicting each other. For example, one study concluded that over 70,000 criminal cases go unsolved each year due to disputes over improperly-conducted Miranda warnings, while another statistic claims that only one percent of cases are thrown out due to defective confessions, and only a fraction of those have anything to do with the Miranda law. One suggestion for a better monitoring system of police interrogation and confessions is the mandatory videotaping of all interactions with suspects. This would be expensive and difficult to implement, however, so it remains difficult to verify these opposing claims. In his opinion on the Miranda case, Chief Justice Earl Warren recognized the potential problems with the ruling by inviting Congress to attempt to come up with other ways of addressing the issue. Congress responded in 1968 with the Omnibus Safe Streets and Crime Control Act, which tried to curtail the Miranda Decision’s powers. Section 3501 of the act states that the presence or absence of a Miranda warning in a police interrogation should not be the only factor used to determine the voluntariness of a confession. Thus, if a Miranda warning was improperly administered or not given at all, the confession could technically still be admissible evidence if other factors pointed to a completely voluntary confession. This statute, however, was largely considered to be unconstitutional and was therefore widely ignored in the legal system. This is the heart of the controversy about the Miranda Decision: though the ruling came from the Constitution, is a Miranda warning actually a Constitutional right? This was the argument addressed by the 2000 Supreme Court case Dickerson v. United States, which dealt with a case in which a confession was admitted as evidence on the basis on Section 3501 despite the lack of a proper Miranda warning. In a 7-2 ruling, the Supreme Court upheld the Miranda Decision, ensuring that it would continue to be the law of the land for some time to come. SUBSEQUENT CASES Many court cases following Miranda v. Arizona have subtly changed or made exceptions to that initial ruling. Generally, a distinction can be made between just a technical violation of Miranda and a truly involuntary confession. Severals rulings have actually contradicted one another, though. For example, Ochoa v. State concluded that all questing must cease as soon as a suspect makes any reference to wanting to invoke Miranda rights, while People v. Krueger required that a suspect make a clear statement that they wish to invoke their Miranda rights. Another case, State v. Robinson, determined that if a suspect makes vague references to Miranda rights, then questioning may continue, but only in order to determine whether or not the suspect truly wishes to invoke his or her rights. Here are just a few more relevant examples: Oregon v. Elstad (1985) – if a confession is given right away, before Miranda warning can be given, but the suspect is later read the warning at the police station and reiterates confession, then the latter confession may be used even though the initial statement must be thrown out Harris v. New York (1971) – a confession obtained without Miranda procedure can be admitted as evidence if the defendant testifies on their own behalf at the trial and commits perjury by claiming innocence despite their previous admission of guilt New York v. Quarles (1984) – if the police pursue or apprehend a dangerous criminal who has concealed a weapon or another item detrimental to public safety, the officers are allowed to ask informational questions such as ―where is it?‖ without reading a Miranda warning Michigan v. Mosley (1975) – if a suspect is question by one officer and then at a later time questioned by a different officer, they do not have to be re-Mirandized, unless the two interrogations involve different law enforcement agencies MIRANDA & MINOR DEMONS There are actually quite a few technicalities about the Miranda Decision which are ignored in Minor Demons but are nonetheless important to understand. It is legally possible to make an argument against throwing out Kenny’s confession, despite the fact that Vince did not follow proper Miranda procedure. First of all, Miranda warnings are only required if the suspect is both in custody and under interrogation. These qualifiers are often the source of debate, but basically, ―in custody‖ means that the suspect has been placed under arrest and is not free to leave. ―Under interrogation‖ indicates that the suspect is being specifically asked about his or her involvement in the crime and is being pressured to answer. Kenny voluntarily went to the scene of the crime and could not definitively have been considered ―in custody‖ when he confessed. To be in custody, the suspect must be ―placed in unfamiliar and hostile surroundings,‖ and the back of a police car does not automatically qualify, particularly since Vince got in with him. Also, Kenny voluntarily led Vince to the precise scene of the crime and showed him the pipe – all when he was not in custody and was technically free to leave. He was not read his Miranda rights until they arrived at the police station, but if at any time following that reading he reiterated all or part of his confession, those later statements could certainly have been admitted as evidence. Even given the circumstances of Kenny’s confession and all the ―fruits‖ of that confession (i.e. the pipe, or any other evidence that the police would not have found on their own) being suppressed as tainted, a case might still have been able to be constructed based on the forensic evidence of Christine O’Brien’s body, which would still have been completely admissible. Furthermore, if the case had gone to trial on this basis, and Kenny had testified in court with a different story than his initial confession, the prosecution would have been able to use that previously-suppressed confession to impeach his testimony.