Suppose a lawyer knows that his client’s best chance at acquittal is in trashing innocent people.
He can do his best to persuade the jury (and by extension, the public at large) that some other person actually committed the crime. Or, he may trash the integrity of someone who is testifying against his client, accusing them of assorted misdeeds. In his heart of hearts, he knows that these alternative suspects & witnesses are probably innocent of these charges, and they will probably carry the stain of these charges with them for life.
But his client’s fate may depend on getting the jury to believe them. Is this morally right?
Well, I’m not trying to convince the jury that a particular person committed the crime, just that there is reasonable doubt my client did - and if showing that someone else could have committed the crime, or had a motive to do it, then it would be unethical of me not to present that information to the jury.
Similarly if the witness has character flaws which make his testimony less plausible, then the jury has a right to know those and to decide how to weight them. Of course I’d bring it up.
To be clear, I was referring to cases in which the witnesses did not (or most likely did not) have these character flaws.
Another example would be if you were trying to build sympathy for your client by presenting them as a victim of someone else (e.g. by saying they were abused as a child or the like).
Well if they don’t, how on earth am I getting the jury to think they did?
“Did you previously work for my client, until he fired you for embezzlement?”
“No, I didn’t.”
“Oh, OK then.”
If it is relevant, of course. Do you think juries are in the habit of not convicting someone for armed robbery, for example, because they got smacked around as a child? (ETA - not just relevant, also admissible).
Every defendant in a criminal case is entitled to any legal defense available. Saying “Well, it is true that the dead body was found in my backyard, and that would be consistent with me killing him, but it’s also possible that someone else did it and left the body there when I was at work. Remember that nobody testified that I was actually at home during the time of the murder, and the alleged victim’s little sister’s whereabouts were unknown during the time of the murder, so how do you know it wasn’t really her? You have to find me not guilty.” is perfectly reasonable.
You do your best to convince them. Not everything is completely clear-cut and obvious in life (and if this were not so, there would be fewer trials to begin with).
Sympathy skews judgment and lawyers know this, so they do their best to get things in. Sometimes they’re more successful than others, of course, but they try.
What do you mean by heart of hearts? I knew in my heart of hearts that Pootie Tang was destined to be a classic from the opening scene. Turned out my heart of hearts was miscalibrated. The lawyer isn’t omniscient any more than anybody else connected to the proceeding; that’s where evidence comes in.
Do you mean that the lawyer is literally just standing up and saying shit that there’s no reason for anyone, herself included, to believe? That’s morally wrong, but more importantly, it’s a terrible strategy. Or is the lawyer presenting evidence that exists, but which isn’t a slam dunk proof of anything or which most people probably will not think is sufficient to relieve the defendant of guilt?
You say that the scenario you’re describing, which seems to be the former one, is very common. Maybe you have an example? Because I don’t agree that it’s very common that a lawyer will make accusations against third parties with no evidence, and certainly not accusations against a specific person, with no evidence, that will stain a person for life. I do think it’s common that a lawyer will bring out evidence that does exist, and which is suggestive for one reason or another of something that could mitigate the defendant’s guilt, but which people in general would probably agree is kind of a hurtful thing to do to the third party. But I think that’s a very different question from the one you asked. Maybe you aren’t asking a question at all, and you’re just getting your point of view out there that lawyers are jerks because they attack innocent parties. Maybe you have an example.
Well give me an example - something plausible I could do in this fashion, and I will tell you whether I would think of it as ethical to do (presuming I were a criminal defense attorney).
Of course. Why wouldn’t they? Again, if the defense is relevant and admissible, I would sure as hell use it. Do you honestly think juries are letting people off because of sympathy?
Maybe they have have a moral compass that tells them that there’s something wrong about harming an innocent person in the interests of helping their client.
You have said this happens a lot. Give an example.
My responsibility is to my client. Not to the prosecution’s witnesses. I won’t lie, I won’t elicit perjury, but if showing the jury another person could have committed the crime may help my client, or if demonstrating that his accuser has a motivation to be dishonest may help my client, I am sure as hell going to do it.
There’s a classic example, one that is forbidden in most (or all) of the US now: defending a client against a charge of rape by insinuating that the victim was a slut and that she probably was asking for it. This is a lousy technique, as it plays off jury prejudices, but it was often effective at securing an acquittal.
If you were defending a client in a jurisdiction in which this approach were allowed, and if you thought both that it would be effective and that a victim’s previous sexual history does not speak to whether the act in question was consensual, it seems to me that you’d have an ethical dilemma: do you fight the hardest you can for your client, even if doing so means smearing the victim of the crime?
That at least is a credible situation. Of course it is key to note, as you do, that such questioning isn’t permissible in (every state that I know of in) the U.S. Even without the rule, if I thought it didn’t speak to whether the act in question was consensual, it wouldn’t be admissible under whatever the state equivalent of FRE 401 is - “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
If it met that bar, and was admissible, then yes. I don’t see that as “smearing the victim.” I see that as providing relevant information to the jury to fulfill their role. Now, if I didn’t think it impacted whether the the action was more or less probable, and I still thought it could get past the judge and admitted, I would be foolish to use it. Unless I am sitting there thinking I am this great smart guy, and that the jury is dumb, and that I can see it isn’t impactful to the guilt or innocence determination but that these 12 rubes would be.
I said “ISTM” that this is very common. The purpose of the qualifier was because it’s a judgment call in any given case. I don’t claim I can prove it’s very common or even that it has ever happened in the history of the world. ISTM that it’s very common. That’s all. The OP was not dependent on it being common or not common.
If you had some rationale for focusing on this question I might address it, but I don’t want to get bogged down in a debate over whether this or that case is a valid example of the phenomenon, or whether I’ve proved that it’s very common.
Probably and most likely is what I’m having trouble with. If there’s evidence of something that bears on reasonable doubt of the defendant’s guilt, it is literally the only job of the defense attorney to present that. That evidence either exists or doesn’t. Probably this or most likely that, or innocent of the charges, doesn’t come into it. Only one person on trial, and all the evidence either bears on that person’s guilt or it doesn’t.
If the attorney was in the business of making ultimate determinations about the defendant’s guilt, and presenting or not presenting evidence based on how convinced she personally was, we wouldn’t need a trial at all.
Again, an example of this would be nice.
Since the thread is moving quickly - Left Hand, here’s my answer to your question - if I was in a jurisdiction where specific pieces of evidence about promiscuity were allowed and considered relevant for the purposes of consent, I’d put those pieces of evidence on. I wouldn’t call the victim a slut, or suggest that she couldn’t be raped, or anything like that. But I would consider it my job to put on all relevant evidence for the jury’s consideration. I do think that’s different from a smear job that might work because of the jury’s perception, though - even with new evidentiary rules, there are always ways to do that sort of thing, and I think it’s unethical and not my job.
(On preview - er, even quicklier now.)
In that case, I would like to amend my previous posts and just say “this doesn’t happen.”
Don’t weasel. You said you think it happens a lot - sorry, it seems to you that it happens a lot. Why do you think this?
The reason I focus on this is that I think your information on this comes from TV crime dramas, which isn’t a very good source of what goes on in a court room. The attorneys from the Practice would have been disbarred multiple times by now. Which is why I, and others, have asked you to provide an example of what you mean.
There’s “evidence” to all sorts of things that are completely bogus. There’s evidence that Obama was born in Kenya, and there’s evidence that the Holocaust is a hoax, to take two of many many examples. And there’s also evidence to all sorts of things that are more likely than either of these two things, but are still far less likely to be true than untrue.
Whether my information is valid or not - and indeed the entire question of how often it happens - is not especially relevant to the OP. Your request is therefore dismissed as irrelevant and prejudicial, and not admissible.
So, in other words, you don’t know of a way this can happen. It just seems to you it happens a lot.
Maybe it is because, yet again, you want to make a point about what bad people lawyers are, without ANYTHING to back it up. If you want a genuine answer to a real ethical question, you have to give people something to work with and answer.