Perjury and Plantinga

So, in my largely worthless legal ethics class, one of the things we've been discussing is when a lawyer can allow someone to testify, believing that that someone might lie. The general rule is, as far as I understand it, that as long as you don't know someone's going to lie, you can put them on the stand. But, given the fact that lawyers are often prone to rationalizations, you can easily get a lawyer saying something like "Well, I strongly suspected he was going to lie, but I didn't know it." And part of the problem, it seems to me, is that the law hasn't thought too carefully about what it means to know something.

The reason likely stems from other areas of the law than legal ethics. In criminal law and tort, knowledge is often an important element. However, it's hard to prove any sort of mental state in court, and especially hard with knowledge. How do you prove I knew she was going to kill him with my handgun, as opposed to believing she might? So we tend to dodge the issue by saying 'know or should have known' in these sort of circumstances. But this doesn't help with the lawyer and the perjurious client. The lawyer is supposed to trust his client, and act on behalf of the client, and so to a certain extent, the lawyer should exercise a sort of wilful ignorance. But only up to a point.

I've been wondering if the use of philosophical concepts of knowledge might help this. Two caveats. First, I'm not an epistemologist by any stretch of the imagination. Second, I've not thought about this for very long, so these are just preliminary musing. But then, you're used to that.

For centuries, knowledge in philosophy was defined as 'justified true belief'. That is, a belief counts as knowledge if it is both true and you have good reasons for holding it. If you believe that the moon is a big ball of rock because your tribal shaman told you so, and he believes it because of that ancient story about the god Fayon knocking some giant's head into the sky, you don't have knowledge. Your belief is true, but it just happens to be true. In any case, there was a famous paper in the 60s where Geddier proved that knowledge can't be justified true belief. So most philosophers don't hold to that anymore. But it's still their starting point, and so I'm going to go with it until I can think about it some more. Like I said, epistemology was never my strong suit.

It seems like if we just said that "A lawyer acts unethically when he calls a witness to the stand 1)believing that that witness will perjure himself and 2) having a reasonable basis for that belief," we could avoid alot of the problems involved in lawyer's weaseling out of what they should know is unethical. And it's not that lawyer's are especially unethical, it's that a lawyer's primary ethical duty is to her client, not to anyone else, and that has a tendency to obscure other ethical duties that she may have. But like I said, these are just preliminary thoughts, so I'd be interested in commentary.



*By the way, I titled this post "Perjury and Plantinga" mostly for the alliteration. Alvin Plantinga is one of the foremost philosophers working in metaphysics and ethics these days, and happens to be a professor at Notre Dame (and a former Calvin professor). He defines knowledge as "warranted true belief", but I've never been quite clear on what distinguishes warrant from justification.