Absurd Legal Defenses

Great Debates
1

Alright Dopers, let’s hammer this one out!

I am going to pose two questions to debate here. One deals with ethics, the other with law.

Q#1: Ethically speaking, do you think that defense attornies have a moral obligation to avoid presenting an absurd defense for a client?

Q#2: Legally speaking, would you support a law which allowed a defense attorney to be investigated/reviewed by the bar or other legal group, when the jury and/or judge felt that the defense put forward was absurd?

The problem is as follows. The judicial system has or is becoming a matter of glib persuasion and not a place of truth, law or justice. If you have a persuasive enough lawyer and can find experts to support you (and there are experts on practically anything these days) you can convince a jury of reasonable doubt with just about any excuse. Therefore, should the jury or judge, on finding a person guilty also be allowed to find that they found the defense’s argument to be especially absurd and that the lawyer should come under review for unethical practices.

An example to ponder just for fun.

Imagine you are on a jury with a defendent who is clearly guilty of murder. Lacking any serious defense, and rather than simply pleading guilty, the defense lawyer and defendent try for the 1 in a million shot and argue that space aliens forced him to do it. They present experts that testify that the defendent suffers from symptoms similar to those of other kidnapped people, and in fact, under hypnosis detailed a space-napping and mind-alteration experience. Then they present experts that testify to the real existence of aliens.

Okay, so the jury sees through all this junk and says “Guilty”. Should they, or the judge also have the right to claim the defense attorney was unethical in wasting the court’s time with such an absurd defense?

Personally, I support the idea, but I am not exactly sure how you implement since it sounds a lot like a thought crime (i.e. what were the intentions of the defense lawyer).

“Glitch … Window, large icons.” - Bob the Guardian

2

Sometimes the truth IS nuts, and while frivilous lawsuits are a problem, I don’t want to sent some poor clod to jail just because something really weird did happen to him (e.g. his dog ate his wife).

However, it is worth noting which lawyers make a practice of such outlandish defense and stigmatizing them in some way. :slight_smile:

3

Thanks for the reply meara. I didn’t mean to imply that they should be thrown in jail, rather I think a more suitable punishment would be a fine, repeated offenses resulting in suspension of their lawyer’s license, more offense resulting in being disbarred.

4

Whenever someone mentions absurd or frivolous legal defenses, I’m reminded of the “patriot” sovereign-citizen crowd, whose legal defenses consist of such “convincing” diatribes as:

  • The gold fringe around the courtroom’s flag makes it a court of Admiralty law, which should not have jurisdiction in a case arising on land;

  • Nowhere does the Internal Revenue Code explicitly say anyone is “liable” for paying income tax, therefore there’s no such thing as tax evasion;

  • The Constitution was suspended at the beginning of the Civil War when Lincoln declared martial law, and no president has ever un-declared martial law since then, so this isn’t a “real” court;

… and many other equally zany defenses, usually related to an attempt to get out of paying income tax.

The truth, as always, is more complicated than that.

5

Glitch, I didn’t think you wanted the lawyer to go to jail, but what if the defendant only has one legitimate defense and it’s so wacky that no lawyer is willing to represent him on it for fear of fine or disbarrment.

We’d probably do better to attack frivolous lawsuits than frivolous defenses since in the latter, at least the defendant isn’t the one who initiated the whole she-bang.

Meara

6

I could see trying to cop an insanity plea based on the fact that the defendant believed he was compelled to commit murder by aliens, but to outright claim that real aliens were controlling him? That’s absurd. I also think to make a defense like this fly, the defendent would have to have been diagnosed with a mental illness prior to the murder.

Attorneys should defend their clients based on factual evidence, not on some wacko belief. The same applies to the Gold Fringe around the Flag defense. Courtroom decor does not change jurisdiction. I think lawyers who use absurd defenses should be censured, if not disbarred.

The trouble with Sir Launcelot is by the time he comes riding up, you’ve already married King Arthur.

7

An excellent point!

How about if before giving what the defense lawyer feels is an absurd defense he can see the judge and explain that how he feels a seemingly absurd defense is, in fact, legitimate? The judge could then rule that the defense would be allowed without the possibility of action against the lawyer.

8

What about the principle that everyone is entitled to counsel of their choice? This is not just a high-minded ideal; it’s a constitutional principle.

A lawyer has a duty of candor twords the tribunal. He cannot offer perjured testimony. But the OP says, “If you have a persuasive enough lawyer and can find experts to support you (and there are experts on practically anything these days) you can convince a jury of reasonable doubt with just about any excuse.” This strikes at the heart of the jury system, and I don’t buy it.

Yes, there are some juries that are swayed by irrelevancies. And some with one lone holdout that won’t convict because the defendant reminds him of a son, or brother, or whatever. There are some jurors who, despite what they say in voir dire, are pretty sure that because the cops arrested the guy, he’s guilty.

But on balance, I don’t agree the jury system is as flawed as the OP would have us believe. And I don’t think we need to vitiate the accused’s right to present a defense. If it’s absurd, then the fact-finder will most likely see it for being absurd.

Now, where I do think there is merit for this kind of thinking is in the appeals process. The defendant is entitled to a lawyer and to raise his defense at trial. But if he’s found guilty - does he have a right to pursue a frivolous appeal?

Under a case called Anders v. California, an attorney can ask to withdraw from an appeal if he believes there is no merit to the appeal. But he must file a brief setting forth any grounds that might be arguable on appeal. If it appears from that brief that there may be meritorious grounds, he will not be permitted to withdraw.

I am very hesitant to strip from defendants any legally cognizable defense, and equally hesitant to hold lawyers liable for doing what they are supposed to do: be a vigorous advocate for their clients.

In the space alien example, assuming the judge doesn’t decide that such a defense is incredible as a matter of law… the weight to assign to the evidence is in the province of the jury. If they hear the experts testify, and submit to cross-examination, they can assign to that testimony the credit it deserves. For the most part, juries are made up of common-sense, ordinary people. They’ll know bullshit when they hear it.

  • Rick
9

Bricker wrote:

Unfortunately, since they don’t get to sit in trial courts every day and hear the kind of weaseling that the judge does, they might not know a bullshit sob-story when they hear it.

And thus, Dow Corning gets cleaned out of a bazillion dollars because women with silicone breast implants got diseases that probably had nothing to do with their silicone breast implants. Not that I’m bitter.

The truth, as always, is more complicated than that.

10

I just love it when people who have no knowledge of the subject debate it…

I could spend the next 30-60 minutes writing a comprehensive post discussing the pros and cons of being allowed to present unusual defenses to allegations of criminal conduct. I am not even certain on which side I would end up (I have successfully avoided criminal law since my internship in law school, thank God (assuming He/She/It exists!)!). But I don’t think it would be worth the time, because the postings so far convince me that such a discussion is well beyond the current understanding of anyone posting so far on this subject, and discussing/arguing with ignorant people who have a beef is never worth it.

My suggestion: go educate yourselves on what actually happens in a court of law, then read up on the development of the basic principles of jurisprudence which govern our criminal trials (including the development of the right to competent counsel). THEN, perhaps a discussion that will get somewhere can be started.

11

*I just can’t understand why you bothered to type that, DSYoung. Just like I can’t understand why you have bothered to post all those other I’m-not-going-to-say-anything posts. The OP asks a fairly cogent question, and you refuse to answer, because the other people on this board aren’t lawyers? Have you ever had a question outside your field of expertise? What is the point of a message board, in your opinion?

12

Man, we’d better shy away from those religious debates until we get our M.Divinity’s. Actually, why bother debating God at all since we’re clearly mortal. And what about all the men discussing abortion! Sheer folly!

Hmmm… unless I can find something controversial about Java Programming, I may as well leave altogether since I’m not expertly qualified to discuss anything else!

Thanks, DSYoungEsq! I was about to waste a lot of time on meaningless debate! You’ve saved me! You’re my hero!

13

Actually, DS, I don’t have a “beef” at all. It was a thought that passed through my head last night that I thought would make for an interesting debate. And after I thought about it a bit last night I thought that defense lawyers should be required to provide an ethically justifiably reasonable defense.

Of course, I really could care less if you are interested in posting or not. It isn’t like this is earth-shatteringly important to me, or likely to anybody else. It is also equally unlikely that even if were to “decide” that yes, defense lawyers should be HUNG and eaten by army ants just 'cus it would be fun that it would mean a whole lot since we don’t make the laws here on the board.

Must I break out the what happens when you put yourself on a pedestal speech AGAIN?

By the way, I will absolutely hold your words against you if you ever try to debate pacifism if you are the fellow I remember posting some crap about it awhile ago. If I am remembering wrong, I apologize, but I am pretty sure it was you.

14

And heaven forbid that somebody would shudder suggest a new or different way of doing things? Oh, the humanity! What ever shall we do? What has become of society when people can discuss and debate ideas with each other? It must be the devil’s work!

15

Glitch said:

[quote]
Actually, DS, I don’t have a “beef” at all. It was a thought that passed through my head last night that I thought would make for an interesting debate. **Slight hijack, forgive me. Did this thought happen to arise during the airing of ABC’s The Practice? The episode concerning the so-called “wild monkey defense”, or contagious deviance in a group setting? That was a load of hooey, IMHO.

16

::wincing::

sorry!

17

Talk about a case in point- this is going on right now… http://www.courttv.com/national/2000/0112/e-defense_ctv.html

Zette

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Not enough and you’re gonna die…
Click here for some GOOD news for a change Zettecity

18

Actually, it came about when I was on another message board (I know heresy) reading by the case of the 17 yr old in Florida and his Internet Intoxication defense. But sounds like last night’s “The Practice” would have been nice hypothetical example. I wish I would have watched it. Anybody care to summarize the episode as a hypothetical case?