Human dignity and the right to counsel: Alan Donagan’s argument
Let us begin with the most basic question about lawyers in their role as courtroom advocates: Why should litigants have them? The answer that, over the years, has appealed to me the most rests on a principle stated by the late philosopher Alan Donagan: “No matter how untrustworthy somebody may have proved to be in the past, one fails to respect his or her dignity as a human being if on any serious matter one refuses even provisionally to treat his or her testimony about it as being in good faith.”[108] An immediate corollary to this principle is that litigants get to tell their stories and argue their understandings of the law.
A procedural system that simply gagged a litigant and refused even to consider her version of the case would be in effect treating her story as if it didn’t exist, her point of view as if it were literally beneath contempt.Once we accept that human dignity requires litigants to be heard, the justification for the advocate becomes clear. People may be poor public speakers. They may be inarticulate, unlettered, mentally disorganized, or just plain stupid. They may know nothing of the law, and so they are scarcely in a position to argue its interpretation, or to utilize such basic procedural rights as objecting to their adversary’s leading questions. Knowing no law, they may omit the very facts that make their case, or focus on pieces of the story that are irrelevant or prejudicial.[109] Their voices may be nails on a chalkboard or too mumbled to understand. They may speak dialect, or for that matter know no English. None of this should matter: human dignity doesn’t depend on whether you are stupid or smooth. Hence the need for an advocate. Just as a non-English speaker must be provided with an interpreter, the legally mute should have - in the very finest sense of the term - a mouthpiece.[110]
Thus, Donagan’s argument connects the right to counsel with human dignity in two steps: first, that human dignity requires litigants to be heard, and second, that without a lawyer they cannot be heard.
Of course, the argument represents an abstraction from reality. In real life, advocates create their theories of the case and assemble the arguments and evidence without caring much whether their theory is the client’s theory. Clients, for their part, generally won’t have a theory of the case, and what interests them is the outcome, not the fidelity with which their lawyer represents their own version of reality. This is not a decisive objection. The law forces an artificial and stylized organization on to the way stories have to be told; by trial-time, any legally coherent telling of the client’s story will bear only scant resemblance to its raw version. And, precisely if the client is inarticulate, unreflective, or simply stupid, the lawyer’s version of the client’s story will be stronger, cleaner, and more nuanced than the client’s own version. The lawyer will read between the lines, and perhaps imbue the story with more subtlety than the client ever could. It seems to me that this does not disqualify the story from being, in an important sense, the client’s story. I acknowledge, nevertheless, that if the lawyer embellishes too much, at some point the story ceases to be the client’s and becomes instead the lawyer’s fictionalized version of the client’s story. The difference is a matter of degree, not of kind, but that makes it no less real. For the moment, I will postpone exploring the implications of this point for our discussion of human dignity; but I take it up again shortly.If the advocate is the client’s mouthpiece or (to use a less offensive word) voice, telling the client’s story and interpreting the law from the client’s viewpoint, it follows that advocacy has its limits. The lawyer may not knowingly tell a false story, and perhaps under some circumstances this prohibition includes willful blindness whereby a lawyer affirmatively takes steps to avoid knowing that the story is false.[111] As Donagan puts it, the story has to have the minimum of credibility necessary so that it can be provisionally taken as a good-faith account.
Decades ago, Lon Fuller and John Randall drafted a quasi-official statement of the principles of adversary ethics, and argued that a lawyer “trespasses against the obligations of professional responsibility, when his desire to win leads him to muddy the headwaters of decision, when, instead of lending a needed perspective to a controversy, he distorts and obscures its true nature.”[112] I suspect that almost every trial lawyer would disagree with this conclusion; but, on the terms of Donagan’s argument, it seems to me largely correct.[113]At this point, let us return to the principle underlying Donagan’s argument:
No matter how untrustworthy somebody may have proved to be in the past, one fails to respect his or her dignity as a human being if on any serious matter one refuses even provisionally to treat his or her testimony about it as being in good faith.
What does the phrase ‘human dignity’ signify in this principle? Apparently, honoring a litigant’s human dignity means suspending disbelief and hearing the story she has to tell. So, in this context, having human dignity means, roughly, having a story of one's own.
I add the words “of one’s own” to emphasize the first-personal, subjective character of the story. Fuller once described the advocate’s job as displaying the case “in the aspect it assumes when viewed from that corner of life into which fate has cast his client.”[114] The client’s story is not just the story in which she figures; it is the story she has to tell. It is about her in both senses of the term: she is its subject-matter, and she is its center. It revolves about her, just as, to terrestrials, the Sun revolves about the Earth (no more and no less).[115]
Now, subjectivity is (if you’ll pardon the word-play) an elusive subject. As Wittgenstein observed, my subjectivity is not, properly speaking, part of the world at all: it is the limit of the world, just as my eye is the limit of my visual field rather than a part of it.[116] If I were to compose a book that enumerated every fact in the world, including every fact about me, about D.
L., my subjectivity would appear nowhere in it. The book (Wittgenstein suggests we entitle it The World As I Found It) would record every fact about D. L. except that I am D. L.[117]Intuitively, it seems plain that, elusive or not, our own subjectivity lies at the very core of our concern for human dignity. To deny my subjectivity is to deny my human dignity. Obviously, only a psychotic or a solipsist really thinks “the world revolves around me.” But, tautologically, my world revolves around me; tautologically, that is, I am the one necessary being in my world. This is what some have called the “egocentric predicament.”[118] Human dignity is in some sense a generalization from the egocentric predicament: human beings have ontological heft because each of us is an ‘I’, and I have ontological heft. For others to treat me as though I have none fundamentally denigrates my status in the world. It amounts to a form of humiliation that violates my human dignity. Hence Donagan’s principle: to honor a litigant’s dignity as a person requires us to hear the story she has to tell, because to ignore and exclude her treats her as though her subjectivity and the point of view it inhabits are totally insignificant.
It seems here that I am explaining human dignity through a metaphysical theory. Subjectivity gives us ontological heft, ignoring someone’s subjectivity denies that she has ontological heft, and that humiliates her. The trouble is that - as I indicated - subjectivity is not really a metaphysical fact about us; it appears nowhere in the Big Book of Facts, The World As I Found It.[119] So I want to propose another way of accommodating our key intuitions, and that is by reversing the order of explanation. Certain ways of treating people humiliate them; humiliating people denies their human dignity. One of those humiliations consists in presuming that some individuals have no point of view worth hearing or expressing, and that is tantamount to denying the ontological heft of their point of view.
Instead of beginning with a metaphysical theory of subjectivity, identifying subjectivity with human dignity, and using that to explain why humiliating people violates human dignity, I am proposing that we begin with the proposition that humiliating people denies their human dignity. We then explain what human dignity is by trying to isolate characteristic features of humiliation - in this case, treating a person’s story and viewpoint as insignificant. In effect, an explanation along these lines begins with a relationship between people - between the dignifier and the dignified - called “honoring (or respecting) human dignity.” Human dignity as such becomes a derived term - derived from the relation - rather than a primitive term. By taking Donagan’s argument at face value, we arrive at a common-sense or, as a philosopher might say, a “naturalized” account of human dignity as having a story of one's own, and the wrong of denying human dignity as humiliation. The courtroom advocate defends human dignity by giving the client voice and sparing the client the humiliation of being silenced and ignored.That brings us back to an earlier question. What about the advocate who constructs a story that has nothing to do with the client’s? Consider an example offered by William Simon. A man is arrested while placing a stolen television into his car, and charged with possession of stolen goods. He tells the police that he bought it from a stranger on the street and had no idea it was stolen. At trial, he does not testify, but his lawyer wishes to argue the client’s version of how he obtained the television. The lawyer, crossexamining the arresting officer, elicits the admission that the defendant was placing the television in the back seat of the car, not the trunk. Arguing to the jury, the lawyer points out that if the defendant knew the television was stolen, he would be unlikely to put it in plain sight. The fact that he was placing it in the back seat rather than the trunk strongly suggests his innocence.
But, unbeknownst to the jury and the prosecutor - yet known to the lawyer - the defendant didn’t have a key to the trunk.[120]Here, the lawyer has constructed a client story that is, we will assume, a fabrication that the client has not told in good faith. Criminal defenders will justify the lawyer’s tactic by the following argument: the lawyer has not lied, but merely shown that the evidence supports the client’s version of the story. Given this evidence, the jury should acquit, because if the evidence reasonably supports an innocent alternative, it cannot prove guilt beyond a reasonable doubt. All the lawyer has done is dramatize the reasonable doubt instead of arguing for it in an abstract matter. That seems like an entirely legitimate way to make the case for reasonable doubt. Every litigator knows that it takes a story to beat a story. Arguing abstractly for reasonable doubt will never shake a jury’s preconceptions.
I think this is a good argument, and it illustrates one of the things skilled advocates do: they construct and promote theories of the case consistent with the evidence even if the theories have nothing to do with reality. If so, then at least this function of the advocate has nothing to do with telling the client’s story or providing voice to the legally mute. And so this function of the advocate seemingly has nothing to do with defending the client’s human dignity, at least according to Donagan’s argument that I have endorsed.
In fact, however, it does. The reason lies deeply embedded in the unique character of criminal law. To honor the defendant’s human dignity - in the sense we have been exploring, namely to presume initially that the defendant has a good-faith story to tell - requires us to presume innocence if the defendant claims innocence. That by itself does not tell us what the burden of proof should be that overcomes this presumption. The choice of proof beyond a reasonable doubt arises because criminal conviction carries moral condemnation with it.[121] Because we presume innocence, we must be extremely careful to avoid mistaken moral condemnation. Hence we apply the “beyond a reasonable doubt” standard. In essence, this standard says that if a goodfaith story of innocence could be constructed from the evidence, it violates the human dignity of the defendant to convict - even if that story is untrue. And the advocate defends her client’s human dignity either directly, by telling his story, or indirectly, by demonstrating that a good-faith story of innocence could be constructed from the evidence.
This is a more complex account of the criminal defender’s role than our initial idea of the advocate as the client’s voice. The defender does serve as the client’s voice if the client wants his story told. But if he does not, the defender still protects the client’s human dignity by demonstrating that the evidence is consistent with the presumption of innocence. I take it that this dual role of the advocate as defender of human dignity derives from the fact that criminal conviction carries with it moral condemnation, that is, loss of stature. Outside the criminal process, losing a lawsuit can still carry moral stigma - think of losing a sexual harassment lawsuit, for example - but it does not quite carry the communal condemnation that criminal conviction does. And so, while civil litigators strive mightily to blow smoke in the eyes of the fact-finder if that serves their clients’ interest, I think they can scarcely claim that doing so has anything much to do with defending the human dignity of their clients.