I don’t have too much knowledge of the law, but this is something I’ve been curious about for a while.
If a defendant in a criminal trial committed the crime he’s accused of, what does he tell his attorney? My wife maintains that he’d have to tell all, since he would want to be well-prepared for any surprise lines of questioning from the prosecution.
I was always under the impression that a lawyer didn’t want to know his client did it, because he’d be suborning perjury by allowing the client to plead not guilty.
Which is it? If it’s the latter, what happens if the client tells the lawyer he did it despite the lawyer’s objections? Must the lawyer excuse himself from the case?
The defendant can tell his attorney whatever he wants. Many obviously guilty defendants will maintain their innocence, even to their own attorneys, despite the fact that the conversation is priviledged.
That’s why defense attorneys almost never put their client on the stand. The prosecution cannot call the defendant as a witness (Fifth amendment.) However, if the defendant were to testify on behalf of himself, then the prosecutor could cross-examine him.
An vital element of U.S. criminal law (and other that of other contries, I assume) is that the burden of proof is entirely on the prosecution. That is to say, the prosecutors are required to prove all of the elements of the crime charged beyond a reasonable doubt before there is a conviction.
A key assumption is that a defendant is innocent until proven guilty. Under that assumption, a plea of not guilty is not required to be a statement by the defendant that he denies that the committed the crime. Rather it can be seen as a statement that the defendant is going to require the prosecution to prove him guilty by proving all of the elements of its case.
A plea is NOT under oath, so to lie then is not illegal. In fact if the defedant is mute, the judge enters a not guilty plea.Right about attorneys often not wanting to know, but they do KNOW because of all the other evidence. Legal ethics teaches if an atty knows the client is committing perjury, the client testifies in a narrative fashion- if the atty is still on the case. BTW, in Britain there is no 5th amendment. The defendant can’t be forced to testify, but his failure to do so can be commented on by the prosecutor, but not allowed in US.
IMO you are incorrect minty green. Also an attorney never claims the client is INNOCENT, but that the prosecution didn’t prove guilt beyond a reasonable doubt.
If you ever see an attorney argue only “reasonable doubt” you know the client is guilty. 95% of criminal TRIALS end in convictions; no way all those attys think their client is clean.
I suppose that this is true, but it is sometimes beside the point. An attorney does not have to claim or demonstrate innocence for an acquittal. All that needs to be done is to knock enough holes in the prosecution’s case. Get evidence and statements excluded, cast doubt on witnesses – there are still a lot of ethical options for a defense even if the defendant did it.
However, IANALawyer, and I may be mischaracterizing how the system works.
MINTY is not incorrect, but neither are you, my good DOCTOR.
An attorney who knows his client is guilty cannot represent that he or she is innocent because in doing so he or she (the attorney) commits a fraud upon the court and violates his or her duty as an officer of the court.
BUT if the attorney reasonably believes his or her client is innocent, he or she (the attorney) can certainly argue that he or she (the client) is innocent. You just can’t do that if you know it isn’t true. And that line is very fine, which is why many criminal defense attorneys I know (and although IAAL, IANACDL) either prefer not to know or consider the knowledge largely irrelevant because they’d present the same defense anyway (which is to say, a defense that pokes holes in the prosecution’s case).
Defendants certainly don’t have to tell their lawyers all, though it’s in their best interests to be honest rather than dis-. As the OP rightly points out, if you don’t come clean to your lawyer and he or she then cannot defend you adequately, to the extent you’re then SOL, it’s your own fault.
Jodi - I only know what I see on TV but sometimes I see cases where the attorney tells the client “you don’t want to tell me that / I don’t want to hear it” meaning “don’t admit your guilt to me because we’re going to fight the case in court.” Is that a breach of ethics?
Wrong. Attorneys declare their clients to be innocent to courts and juries every day. I have personally done so myself (and before you ask, I fully believe it).
As Jodi quite rightly points out, it’s a question of whether the attorney knows the client committed the crime, not whether the attorney “thinks” the client did it.
“In fact if the defendant is mute, the judge enters a not guilty plea.”
Under UK/Irish law, if a defendant refuses to plead there’s a new mini-trial arranged with a fresh jury to determine if the defendant is “mute of malice” or “mute by visitation of God”. “Mute by malice” means the defendant is refusing to plead,a pro-forma “not guilty” plea is entered on his behalf, and the case is litigated as if he’d pled not guilty. The alternative means he’s incapable of pleading and the trial is generally suspended.
As Minty Green says, the issue is not what the attorney thinks, but what he knows. So long as he just thinks the client is guilty, he can defend at full force. impugn prosecution witnesses, present alibi evidence, etc. If he knows the client is guilty, a different set of ethical rules apply … he can attack the prosecution evidence, since they still have to prove their case, but can’t present evidence he knows to be perjurious, for example he can’t call the defendant’s brother to present an alibi.
An attorney who finds out half-way thru’ a case that his client is actually guilty will generally make this known to the judge, by announcing he has “a professional difficulty”, so the judge doesn’t raise queries in front of the jury about why the defending lawyer has changed his approach so much.
You are quite right , we in the UK do not have a 5th amendment, however a defendant can still refuse to testify on the same grounds as you in the USA do.
Should he/she do so this would not go down very well with either judge or jury who would make the natural assumption that the accused is guilty…well at least I would.
It is interesting to note that, in England, until the Criminal Evidence Act of1898 the accused was forbidden from testifying and had to remain mute and it was up to the prosecution to prove their case beyond a reasonable doubt but they could not interrogate the accused. After 1898 the accused could testify voluntarily but cannot be forced to testify. Also. at common law, the wife cannot be forced to testify against the husband.
It seems to me that if the attorney tries to defend his client by only trying to find holes in the prosecutors case and not build his own (for eg. not summoning of the defendant’s brother as alibi), or suddenly changes his tactics 1/2way through the trial, the judge (and any other experienced observer) will then know that the defendant is guilty.
First, the knowledge of whether their clients are guilty will be reflected in the actions of the attorneys, and hence, by deduction, the guilt of the defendant will be obvious.
Second, that attorneys can knowingly defend the criminal seems to me a travesty of the integrity of the legal system.
Besides, attorneys that know that their clients are guilty will make a less-than-full-effort to defend their client, resulting in bias. How does the (supposedly blind) justice system account for this?
IANA Lawyer, but it seems to me that there is (or should be) a regulation stipulating that criminals cannot confess to their attorneys and still expect full protection and/or the attorney-client priviledge to hold.
Okay, we start any criminal proceedings with the presumption that the defendant is innocent (as opposed to not guilty). He is a citizen entitled to all his rights, save that, having been accused of a crime, he is compelled to be present at a trial, and may be confined or required to give surety that he will appear for trial.
This is not a game; it’s a legal basis for starting a trial. Just as in civil court if someone sues me for money, they are not automatically entitled to the money, but must prove that some action or negligence of mine or some debt that I owe them entitles them to that money.
The defence is not required to prove anything in either civil or criminal cases, though a good demonstration of the defendant’s case to refute what the prosecution or plaintiff is alleging to support his case is incumbent on a good attorney.
Remember too that there is a significant difference between the commission of an act and being guilty of a crime by that act, and that what may appear in one perspectve to be a criminal act may in fact not be. And that the D.A. is obliged to charge the highest crime which he has reasonable grounds to believe he can prove.
This means that a defense attorney, acquainted with the facts of the case, can argue convincingly that (1) the prosecution has not proved its case beyond reasonable doubt, or (2) that even if the defendant did do what it’s established that he did, doing so does not constitute the crime of which he is accused, because an element such as malice or intent required for that crime is not present.
For example, a man is walking the shore of Lake Ontario in New York during the winter. A lake effect squall blows up, and he takes shelter from it in a cottage closed for the winter, removing a peg-through-a-hasp that is all the securing the owners did. While in the cottage, he takes a Kleenex from a nearly-empty box and blows his nose with it. He is scrupulous not to disturb any other possessions left in the cottage. When the storm blows down, he re-secures the cottage and goes on his way.
Technically, he is chargeable with burglary under New York law – he entered a dwelling by disabling a lock, and converted the property of another (the Kleenex) for his own use. But no lawyer, judge, or jury in their right mind would find him guilty of the felony of burglary for his acts. (And presumably the DA would never bring the case – but it serves as an extreme example of unassailable facts vs. statutory definition of crime.)
Similarly, the same set of facts – Jack committed acts which led to the death of Joe – can, as anyone who’s ever watched a crime drama can attest, constitute murder, voluntary or involuntary manslaughter, an act of self-defense, or outcomes truly bizarre, as when we find that Jack is an undercover policeman sent to get evidence of Joe’s crime empire, and Joe discovers this.
A plea of “not guilty” does not translate to “I’m innocent” but rather “if you think I’m guilty, prove your accusations.”
Firstly it doesn’t matter if the the judge or other experienced observer realises the client is guilty … what matters is what the jury thinks. In that scenario,it’s part of the lawyer’s art to continue his case so the jury doesn’t notice anything has happened, and doesn’t deduce his client’s guilt.
Secondly, in this case the lawyer is defending his client to the extent that he’s making the prosecution prove it’s case. That’s not unreasonable, and the lawyer is being unprofessional if he doesn’t make a full and honest attack on that prosecution case. To a lawyer, the outcome of a criminal case should be determined by the evidence presented in court when the case is being litigated, not by the actual facts of what happened. If the prosecution case doesn’t stand up, (for example if a key witness has died in the interim), the defendant must go free,even if his lawyer knows him to be guilty. Pragmatically, if the prosecution case isn’t attacked throughly, a conviction will be overturned on appeal anyway.
BTW, a lawyer may receive confirmation of a client’s guilt by means other than the client’s confession …suppose a key alibi witness admits he’s being paid for his testimony to the defence attorney ?
I can only speak for UK/Irish law, but there’s definitely no such rule as you describe in those jurisdictions.One high-profile example I vaguely remember was the Jeffrey Archer perjury trial, where his defence attorney used the “professional difficulty” formulation and it was generally believed Archer had said something indiscreet over lunch or something.
Not usually. Here’s the distinction I’m drawing: A defense attorney who knows or thinks his/her client is innocent can argue “My client is innocent!” (What we’ll call the first argument.) Obviously a defense attorney who knows or reasonably thinks – more than merely suspects – his/her client is guilty cannot make that argument. But that attorney can still make the argument “The prosecution failed to prove the defendant is guilty beyond a reasonable doubt” (which is the standard for most criminal trials in the U.S., and the burden of proof is always on the prosecution). (What we’ll call the second argument.) This is what I was referring to by talking about the defense attorney “poking holes in the prosecution’s case.”
Now, the second argument – “the prosecution failed to prove, etc.” – can be made regardless of whether the defense attorney knows/thinks the defendant is guilty OR innocent. Because it’s not really addressing that issue at all; it’s addressing the prosecution’s failure to meet its burden of proof. It’s the difference between “he’s not guilty” and “you didn’t prove he’s guilty.”
But if you know the defendant is guilty, then you have to be much more aware of how far you can go in implying or stating that he isn’t guilty, because of your ethical duty as an attorney and officer of the court. If you don’t know, then you don’t have to care so much where that line is because, hey, if you say/imply he’s innocent, well, you don’t know that he’s not, right? For this reason, many defense attorneys prefer not to know. If you don’t know, for example, you can put your client up there and let him spool out his alibi. But if you put him up there and he spools out his alibi and you know he’s lying, you are in a big ol’ bind. This is because you have an obligation to the court not to suborn perjury (i.e., allow your client to lie on the stand), but you have an obligation to your client to put on as effective a defense as possible, which would not include saying “My client is lying like a cheap rug, Your Honor.”
So what do you do? Well, generally you stand up and ask to be recused from the case based on a professional conflict. The judge will correctly interpret this as “my client is lying like a cheap rug, Your Honor,” and maybe the jury will as well, but you haven’t actually said that. But no matter how you slice it, at that point you’ve got a big fat ugly nasty hairy problem. Better just not to know, and then if he perjures himself, it’s not your problem. Again, I am not a criminal defense lawyer (I am a civil defense lawyer), so I’ll gladly take correction from any of you criminal types.
Aside from that, when you think about it, the second argument is almost always the easier argument to make anyway. It’s easier to raise reasonable doubt regarding the prosecution’s case that it is to affirmatively prove (or convince a jury) your client is actually innocent. So most defense attorneys make the second argument regardless of innocence or guilt (or suspected innocence or guilt). That’s why knowing or not knowing usually doesn’t make much difference in how the attorney presents the case.
POLYCARP –
I must nitpick your post. It’s a disease. I apologize. But I’ll start by saying your post is largely correct.
He must be present to be tried unless there are grounds to try him in abstensia, but he doesn’t have to be present for the whole trial. If he flees or otherwise voluntarily absents himself from the trial after the jury is empanelled and double jeopardy attaches, he may be tried in abstentia. His failure to show will not prevent the continuation of his trial. But he does have to be present at the time the trial starts (I’m unaware of any case not following this rule though, again, IANACDL) because truly “in absentia” trials (meaning, ones where the defendant is not there at all, ever) are not held to comport with American ideas of due process – or international ideas of due process either, AFAIK.
Broadly true, but not always true in civil cases. Under certain circumstances the burden of proof in civil cases will shift from the plaintiff to the defendant. For example, if the plaintiff can show the defendant was negligent per se – meaning, violated some statute or law, where the mere violation of that statute or law is enough alone for the imposition of liability – then the burden will shift to the defendant to prove his actions were not negligent per se. This burden shifting is almost always illegal in criminal cases, because it is unconstitutional in criminal cases.
These are actually the same thing, becasue (2) is just a species of (1). (If you fail to prove intent, you’ve failed to prove your case beyond a reasonable doubt.) The burden of proof is always (1).
BASKERVILLE –
I had a couple questions regarding British procedure. I would e-mail you but your address is not listed. Would you be willing to e-mail me so I can ask them? They are general questions out of personal curiosity only. I’m not a stalker – so far as you know.
But I’ll start by saying your post is largely correct.