The following appeared in Volume 98, Number 1 (Fall, 1998) of the APA Newsletters

About the Lake Pleasant bodies case,¹ Alan Donagan wrote as follows:

These not exactly elegant sentences suggest two questions. (Q1) Is there an obligation to confess one’s own wrongdoing? (Q2) Is it permissible for anyone to assist (professionally) those who refuse to confess to the wrongs they do?

Donagan implies that the legal right against self-incrimination requires that the guilty client should be free to sustain whatever concealment already exists and, notably in [3], not be "coerced into refraining from a wrong," that is, not be forced to undo the wrongful act of concealing the deed. The meaning of [3] is that the guilty should confess – voluntarily. Undoubtedly, there are good moral and practical reasons for disabling (or limiting) law officials from using force (and tricks) to obtain admissions or evidence from suspects (in custody). And these same reasons would equally block any official from coercing or duping lawyers into betraying a client’s secrets. But, Donagan says, those reasons as they legally regulate official conduct do not morally exculpate a private lawyer who would choose to hide the truth in service to a guilty client. Nor – as implied by Donagan’s claim – would those reasons morally exculpate wrongdoers themselves though they exercise their legal right of silence. Donagan’s thesis – as I see it – is that no one has a moral right to conceal her (or another’s) immoral illegality despite the existence of a legal right against self-incrimination and a right not to suffer official coercion.

If there is no moral right to conceal, then the answer to (Q1) above is: Yes, there is an obligation to confess.³ Hiding bodies or lying about one’s whereabouts are clearly acts of wrongful concealment, yet one must wonder about being silent on such occasions. Is there no moral right of silence? What is the exact relation between an obligation to confess (or the absence of a moral right of silence respecting one’s wrongs) and an obligation not to conceal wrongdoing? Concealment might seem to require an identifiable act, like lying or hiding, done in the face of a search, whereas a confession could come, as it were, out of the blue unbidden. It might therefore seem that the duty to confess is less stringent (as being triggered only by a search). The problem is to get the logic right. If one is asked questions (by officials in a moment of accusation), legally one need not answer. When one does not exercise this legal right, one should speak the truth as best one can. When one is guilty, is refusing to answer a species of lying? Or better, is not silence by the guilty – though not a lie – a species of wrongful concealment? I think it is, on the assumption that one’s immorality is a matter of (sometimes, passive) interest to everyone.

Whether one denies guilt (and thus lies) or is silent, one conceals: concealment is the wider category and is not limited to acts aimed merely against active searchers. (That the logic of the argument must go in this direction does not preclude the value of discussing matters in terms of ‘the duty to confess’– it is just that consequents do not logically entail their antecedents and the broader concern, the antecedent, is the absence of a right to conceal one’s wrongs.) This conclusion, viz., that one must talk or else one is concealing, excludes silence as a middle or morally indifferent ground of response. (When we praise someone by declaring "at least she did not lie," we usually mean she spoke the truth. About a guilty person who has kept silent this praise seems, as it were, a little precious.) Lying about one’s action can, of course, heighten the harmful effects of a concealment, though there may, on many occasions, be little to choose between the effects of a false denial and those of a flat refusal to speak. It is clear that compared to the liar the silent guilty person has taken neither an intrinsically higher road nor found a way to nullify the duty.⁴ In short, when it is wrong to conceal (by lie or silence), there exists a duty to admit to the thing one did, to confess.⁵

There is no moral right of silence when the offense is a moral wrong.⁶ If this outcome looks unseemly, I think it is either because of concern about unfair religious or political manipulation or because of a mistakenly transferred value found in the legal right of silence – a value not at all disputed here. Of course, the law (and religion) has good reason to treat confessing as a free permission; no authority has (or should have) the legal right to force the unconcealing of concealment. The legal right against self-incrimination is a firm response to those who would reason that since confessing is what a guilty person ought to do, their job is to get confessions whatever way they can. It should be noted that the presumption of innocence in law has the logical effect of treating the guilty person as one who has nothing to confess. (Original Sin must be seen to have the opposite effect; there’s always something to confess.) It is a mistake, however, to think that those legal reasons which constrain official behavior will provide the guilty with a universal moral refuge behind a buttoned lip. To have a legal right to silence is one thing, being morally justified in its use is another. There is no moral right of silence about one’s wrongdoing any more than there is a moral right to lie.

Now if this obligation were more widely complied with, would there be harmful effects? I cannot see how. If the confession is voluntary, autonomy is unaffected. Confession does not require that people reduce themselves to sorry puddles of contrition; it does not entail humiliation, beyond the experience of self-accusation itself.⁷ Naturally, people do not enjoy admitting to (what they see to be) their own misdeeds. Still, people will sometimes confess as a matter of doing what they should, and no one of these ever compounds a wrong by confessing to it. What of stimulating busybodies in their work? My obligation to confess does not establish in others any moral duty to see that I do it (as distinct from any virtue there might be in hearing me out should I decide to talk). Of course, everyone has the simple right to make inquiries. Law enforcement officials do their jobs that way. Indeed, anyone who did question a perpetrator would be moving him towards, or at least providing him with the opportunity for, what in all likelihood he ought already to have done. Finally, those who would enact thought-crimes should not be encouraged (and those who oppose them should not be discouraged) merely for the reason that the only way in which such crimes could be known is by confession and one recognizes a duty to confess.

I am not arguing, however, that in the course of human events there never could exist, all things considered, any moral justification for keeping one’s misconduct dark. It is a familiar fact that one moral obligation may be more stringent than another. Prima facie, one ought to confess. The strength of this obligation is related to, but not exhausted by, the prima facie value of truth-telling. Politicians, for instance, may be morally justified when they refuse to admit to, and indeed lie about, some of their sexual peccadilloes; they act in the belief that they have a larger mission which could be compromised by their confession. They might even be right in that assessment. But when they will thus lie, the occasion at least should be for them one of ‘agent-regret’. One thing is for sure, the obligation to confess is not overridden by the desire merely to escape detection or avoid embarrassment to friends.

Of more interest in a legal context is the question whether the accused ought to confess even though she knows that the state’s evidence against her is inadequate. Does the guilty person now gain a moral right of concealment? The answer must still be no. It is not the place of the wrongdoer to test the mettle of the state, as if it were a duty or right of good citizenship. (If that testing were an (absolute) right, then she is (always) permitted not to confess when it is clear she is otherwise going to get away with it. If testing the state were an (absolute) duty, then the guilty person should never confess.⁸) At this point, therefore, my conclusion about (Q1) is that there is a prima facie moral obligation to confess when and only when one’s illegal acts are morally wrong. This basic obligation, I should remark, is merely augmented by, not created by, consequential contingencies related to the waste and cruelty of silence – say, by the suffering of the wrongly jailed.⁹

If you have no right to conceal your own wrongdoing, are you then compelled to hire someone else? Is that a silly question? The innocent, of course, are entitled to a legal defense, as are those whose situation is uncertain. The odd thing is, however, that the truly guilty are sometimes thought to be permitted morally – not just legally – to hire someone in order to pursue a legal right the exercise of which, for their part, they cannot justify. They should be confessing.¹⁰ Instead, as if to make the duty vanish, they hire a mouthpiece. Now what of this lawyer who knows he has a guilty client? Does the lawyer have a duty to reveal the wrongdoing, on pain otherwise of concealing it?¹¹ Of course he did not commit the original crime; so one might say that the lawyer has nothing to confess. But that argument begs the question: if concealing wrongful conduct is itself wrong, then the lawyer would have something to confess.¹² The question has now become (Q2). How could it ever be morally permissible for anyone to assist (professionally) those who refuse to confess to the wrongs they do?

Donagan’s claim, regarding sentence [1] above, is that the legal right against being forced into a confession does not permit the accused person morally to enlist professional associates – or presumably anyone at all – in hiding the inculpatory truth. About "Lake Pleasant bodies," it is clear that Donagan was not thinking only of what a lawyer did about the corpse of another of his client’s victims (it amounted to a desecration) but also of all the acts done as a lawyer in order to hide the facts up until revealing them was advantageous. In [2] Donagan goes further, claiming that no lawyer with "moral decency" can be a "client’s alter ego" except in the belief that the client had possibly exercised a moral right, or, presumably, is morally exculpable. This does suggest that the guilty, if they are to retain counsel at all, will seek it rightly only from among the profession’s morally indecent. Yet criminal defense lawyers, presumably without shame, regularly respond to just such invitations. Though Donagan seems correct in saying that the guilty person’s legal right against self-incrimination does not entail a moral right to use professionals to improve the concealment, might there be some other justification for a lawyer’s exertions – not merely at sentencing but at trial?

The defense lawyer does have a socially defined moral right (unlike the accused)¹³ to exercise a legal right to put the state’s evidence to the test. Despite this, there might be some psychological dissatisfaction in being reduced merely to testing the quality of each prosecution irrespective of guilt.¹⁴ It may become important for the criminal defense lawyer to sustain a belief for as long as possible that the new client is not guilty. This can be achieved when one’s idea of ‘guilty’ is exhausted by a legal verdict: until delivered, there is no guilt. A civil lawyer would normally not ask, "Well, are you liable?" And, likewise, the criminal defense does not ask, "Are you guilty?" because the answer would always be, "Let’s have a trial and find out." On the other hand, if ‘guilty’ also applies antecedently to the agent of morally wrong illegal conduct (as I have implied it does), the lawyer and the client can share full knowledge in advance. On those occasions, it looks as if the client should confess forthwith, not only telling the lawyer (he may have already done that) but the authorities as well. Certainly, to say that every untried client is absolutely ‘not guilty’ is mere pretence. Is the right conclusion that a lawyer may not defend the guilty except in the penalty phase?

What if it becomes clear to the lawyer that the state’s evidence will not wash?¹⁵ Again, the mere good chance of getting away with it neither provides the lawyer with a justification for having the client plead not guilty nor relieves the guilty person of the duty to confess.¹⁶ The lawyer, as we know, is positioned to test the state’s case. Yet to have this right and to be justified in its use are different matters. The defense lawyer is justified or permitted to exercise the right, for example, when there were known or probable prosecutorial incompetencies or police illegalities. So – and this is the conclusion I reach – one (or the) justification for testing the state (in a professional capacity) is that the effort will do something morally useful for the legal order. Some would speak loosely here of loyalty to an ideal; without something like that, the lawyer does merely assist the guilty in concealment. Is there a difficulty in this for the lawyer-client relationship? Serving the ideal makes the client into a means, though not a mere means: the client gets something back and is usually free to stop the process any time he chooses. But is not loyalty to the client missing in this justification?

One can distinguish the two questions: what is loyalty? and when is it justified? In the plainest way, all loyalties are to persons¹⁷ (whether in roles or not); how loyalties are justified depends upon the quality of the ‘ideal’ one has in being loyal to someone – such as Hitler. So I may be loyal to Fred because I value the ideal of longstanding friendship. Some might speak here – but oddly I believe – of being loyal both to friendship and to Fred. Also, being loyal to Fred is different from merely being his friend; it is logically possible to be a friend to all (including Fred) but one cannot be loyal to everybody: loyalty excludes. Loyalty – in this strict and proper sense – is a triadic relation of Alpha to Beta such that Gamma is not served; disloyal Alphas betray Betas by acting (being prepared to act) for the Gammas.¹⁸ Those who in the 1950s probed loyalty to the USA asked about membership in the Communist Party. Othello thought Desdemona had been disloyal, the special form of which was betrayal with another who had been excluded through marriage. Anarchists are not disloyal to any authority; they do not take sides among them. Equally the alienated citizen, who is apathetic and indifferent, is simply aloyal. Those who accuse conscientious objectors or pacifists of being traitors do so because they think their refusal must help the enemy. But then a traitor in time of war is the paradigm of disloyalty. So a disloyal individual does not merely renege on commitments or enjoy benefits without return, but is a turncoat. Now to justify Alpha’s disloyalty there must be good justification for Alpha to act for Gamma against Beta despite the initial relationship. Loyalty is justified by the value or ideal it serves – it cannot be an intrinsic good. Loyalty to the court should be so understood.

As everyone knows, the defense lawyer is both an officer of the court and attorney for the accused. There is nothing paradoxical in this duality when the defendant is innocent; finding the innocent not guilty is an ideal shared between court’s officer and attorney.¹⁹ But when a lawyer knows his client is guilty of an offense malum in se, she can justify loyalty to this client only if serving the ‘competitor’ would be wrong. The lawyer who dumps an unprofitable client achieves disloyalty only by taking up the adversary’s case (or its moral equivalent) – sometimes justifiably. The lawyer can justify loyalty to a guilty client in no other way than as an act in service to the ideals of the justice system. The justification for giving this assistance does not turn on any rights that this client possesses individually – not even the presumption of innocence.²⁰ Otherwise, loyalty would mean excluding the court without justification. It would mean that it is right to serve the side that’s wrong. That is paradoxical. The answer to (Q2), in short, is that it is permissible to assist those who refuse to confess to the wrongs they do when and only when this is useful to the morally proper ideals of the criminal justice system. This permission is not always present. The lawyer’s correct advice in many situations is "plead guilty," or, where that plea is not allowed, "confess." A final point. A defense lawyer can serve the ideals of justice objectively even if personally his motive for representing the client was fame and money. The thing is that when he writes his book he should not claim his journey was for justice.

HI would like to thank John Norris, John Kleinig, and members of our "Law Group" at UWO for helpful comments.

1. People v. Belge, 83 Misc.2d 186, 372 NYS2d 798 (1975), aff’d., 50 AD2d 1088, 376 NYS2d 60, 390 NYS2d 867, 359 NE2d 377. In this famous case, the two lawyers defending a murderer assisted him in not revealing evidence, i.e., the body, of a prior murder, despite requests to the lawyers from the victim’s parents for any information about their missing daughter.

2. Alan Donagan, "Justifying Legal Practice in the Adversary System," in David Luban, ed., The Good Lawyer (Totowa, NJ: Rowman & Allanheld, 1983), 143. (Bracketed numbers added.)

3. In many cases there will be uncertainty whether one should confess, so it might be said that my discussion necessarily concerns a narrow range of clear cases. But that is not exactly true; logically, the number of cases in this class may be any size. It is a function of the precision of the law and the nature of morality. Of course, philosophically, wide or narrow, it does not matter.

4. The duty is not if one confesses, one should do it honestly, but rather the duty is to confess – honestly. Of course, even the innocent who remains silent looks guilty to the interlocutor. If producing this impression when one is guilty is a higher road than lying, one could do even better by confessing.

5. One may say, without loss of important meaning here, either "there is no right to conceal" or "there is a duty not to conceal." I use both to the same end. The moral obligation not to conceal entails both giving up evidence and a confession. Someone who self-accuses but hides evidence still is concealing. Someone who merely gives up evidence leading to conviction has not confessed, for there was no self-accusation. Of course, the passivity allowed by the legal right of silence will prevent officials from extracting either confessions or other evidence. And, of course, a confession presented in evidence does not entail conviction or guilt.

6. There is a moral right of silence when one is innocent, because there is nothing to conceal or confess. There is equally a moral right of silence when one has engaged in an illegal but morally neutral act and also when the particular law one has violated is immoral in itself, for there is no moral guilt in either case. The right must also be available when the case is indeterminate. I offer no further independent defense of these propositions, which seem to me to stand up pretty well on their own. My assumption is that there is no duty to confess except when one’s action is immoral. Of course, this would not be a separate issue if there were a general moral obligation to obey all the laws: there would be no nonmoral illegalities. Another point. If scepticism were true and if we never know when our acts are morally right or wrong (or nothing is wrong at all), then no one would have an obligation to confess. But I am arguing here on the basis of nonsceptical assumptions.

7. To have confessed, as I use the notion here, is not merely having told someone. Confession is a (speech) act of admitting guilt, done by one who thinks that one is guilty, so that nothing need remain a secret held by others. When one ‘confesses’ to a priest one has not confessed in this public way – at least so one will expect. Equally, ‘confessing’ to one’s lawyer is not to have confessed to the offense; indeed, talking to a lawyer could be the occasion of continuing concealment (at least in some jurisdictions). On the other hand, the lawyer may be able to clarify what it is exactly that the client should confess to; nothing in what I have argued makes clients experts on the law, though I assume that they have beliefs about what is right and wrong.

8. Or, alternatively, one might argue that the guilty good citizen will have an obligation to confess. I have not argued that way because of the unclear moral demands of citizenship and because the duty is tied to the immorality of the conduct itself.

9. Such consequentialism would be directly relevant to cases in which the crime is not one that one has a duty to confess, viz., when the offense is not immoral. But when someone is serving your time or paying your fine, you have no right to conceal that fact, for reason of the pain you cause.

10. In this essay I am of course imagining a confession that is incompatible with a plea of not guilty. If a confession in evidence is recanted the argument at trial must be that either the confession was involuntary or false.

11. There is a duty recognized among lawyers to reveal clients’ ongoing crimes or conspiracies. The duty of confidentiality obtains only with regard to the fait accompli. As Donagan notes, this presents a problem of consistency in the Code of Ethics (pp. 143-44).

12. The principle basic to this essay is that it is wrong to conceal one’s own wrongdoing. If we recognize the wrongness of aiding and abetting, then it is wrong to assist someone engaged in a concealment. Alternatively, one might suggest that it simply is wrong to conceal any wrongdoing, including one’s own.

13. What of the person who defends herself – the one with the foolish client? The right to test the prosecution’s case is role-dependent and one person can be both defender and defendant in the same action. People who have "themselves for lawyers" (not those without representation) always plead not guilty and never advise their clients to confess.

14. I assume that a majority of criminal defense lawyers believe that murder, rape, and the like are morally wrong (malum in se) and that some prosecutions should succeed even as they themselves defend against that outcome. Any experience of dissonance would be reduced when the lawyer believes that no one should suffer specific kinds of penalty (e.g., capital punishment) or suffer punishment within a corrupt or incompetent jurisdiction. Dissonance would not exist if the lawyer thinks that the crime charged is itself either not immoral (e.g., marijuana) or should not be a crime at all though immoral (e.g., pornography). Dissonance would not exist for the lawyer who has worked herself into full-blown moral scepticism or nihilism. An anarchist lawyer, I should think, would be uncomfortable in the profession though testing prosecutions is the thing to do.

15. Of course there will be times when the defense is not well informed about the prosecution’s case. I am not considering that situation here. Just how often that occurs is irrelevant to the point at issue; it need not be rare. In any case, as the trial progresses the quality will come clear.

16. One might argue that the state ought not go to trial if it is aware of the weakness of its case. If so, then the defense would be countering the state’s mistake. I believe that it is merely imprudent of the state of proceed with weak evidence against someone who is guilty. It is clear that the duty to confess does not disappear because the state may not have the evidence needed to convict.

17. I do not mean much to turn on this claim, but it is nice to remember that Plato personified the Law in the argument with Socrates in the Crito.

18. Fletcher writes: "There are always three parties, A, B, and C, in a matrix of loyalty. A can be loyal to B only if there is a third party C . . . who stands as a potential competitor to B . . ." (George P. Fletcher, Loyalty [Oxford: Oxford University Press, 1993], 8). About loyalty and others, McChrystal in one place puts it gently: ". . . loyal action generally has consequences for other people" (Michael K. McChrystal, "Lawyers and Loyalty," William & Mary Law Review 33 [1991/92], 3700. This does not capture loyalty’s exclusionary aspect. When McChrystal writes of intentional disloyalty, he suggests a stronger triadic relation: the lawyer implements "a decision to privilege some concern over the lawyer’s loyalty obligation to the client" (id., 411). However, speaking of "some concern" allows McChrystal to consider whether the self-interested dumping of a client is "justified disloyalty;" the question is better put, I believe, as one about "justified withdrawal from representation." Of course, one might appreciate that there often is an adversarial aspect to the lawyer-client relationship itself (it shows up in the billings); when a client is dumped one might say that a disloyal Alpha betrayed Beta by acting for Gamma, where Gamma equals Alpha. The word ‘betrayed’ at least suggests an unjustified breach of loyalty.

19. One shared ideal of the system is to acquit innocent persons. The lawyer has another shared justification for appearing at sentencing: there is presumably nothing left to conceal about guilt while new issues involving risks, remorse, rehabilitation, and special circumstances need to be argued by someone in service to both the system and convicted person.