If a criminal lawyer sees his or her role as trying to get those who are (in the judgment of that lawyer) guilty to confess, the whole system breaks down. The lawyer’s job is to zealously represent his client. It is most likely not in the best interests of the client to confess. No, wait, I take that back. Sometimes it may actually be in the client’s best interest to confess. That’s what plea bargaining is all about. But sometimes (for example, when a plea deal is not being offered), it may be in the client’s best interest to go to trial, whether or not the accused actually committed whatever he’s been charged with.
It’s also not the lawyer’s job to prove his or her client’s innocence. The accused is presumed innocent. Proof is the prosecution’s job. It is certainly the lawyer’s job to show that the prosecution has not proved guilt, which is not the same thing at all as proving innocence.
And we should remember that many of the rights we value so highly were secured by criminal lawyers representing their clients, many of whom may well have done what they were accused of. The accused (and even the guilty) still have rights, and defending those rights is a good thing.
No. I’m too impetuous and passionate about right and wrong, and I’ve never been good at professional detachment. I do believe that it’s better to have 99 guilty men walk free on a technicality than for one innocent man to go to jail, but I don’t want any part in that process.
Yes, I could. My understanding of the system (IANAL) is that it really isn’t up to me as a lawyer to make decisions about guilt or innocence. Would the legal system, and the idea that everyone is entitled to representation, even work at all if lawyers could arbitrarily pre-empt the courts and deem someone to be guilty of a crime?
I know plenty of criminal defense lawyers and think most of them are not only ethical, but also good people. That doesn’t mean that I have the stomach to defend people who are most likely guilty. There’s nothing wrong with what defense attorneys do, and someone has to do it, but it won’t be me. Just like most of the defense attorneys I know don’t think there is anything wrong with being a prosecutor, but they would never take that job themselves.
Same here. I did do some defence work, years ago, and did not have any trouble with it. I moved on to another area of law that I found more interesting, not because of problems with defence work.
If a criminal lawyer sees his or her role as trying to get those who are (in the judgment of that lawyer) guilty to confess, the whole system breaks down. The lawyer’s job is to zealously represent his client. It is most likely not in the best interests of the client to confess. No, wait, I take that back. Sometimes it may actually be in the client’s best interest to confess. That’s what plea bargaining is all about. But sometimes (for example, when a plea deal is not being offered), it may be in the client’s best interest to go to trial, whether or not the accused actually committed whatever he’s been charged with.
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I’m glad Saintly Loser posted this - I was going to say something much the same. It is not the role of defence counsel to try to persuade his/her client to confess because the defence lawyer thinks the client is guilty. Defence counsel’s role is to defend.
I’ve done criminal defense work, and I’m another “other” vote. In my opinion, it’s not so much “somebody has to do it,” as it is “yes, absolutely, because everybody deserves representation.”
Well, one that comes to mind is the inadmissibility of evidence that is wrongly discovered even where the police were acting in good faith. I for one however, believe that the rule on inadmissibility is wrong in toto. Where the police are acting in bad faith in discovering the evidence, but the evidence itself is beyond question I think it should be admitted but the police officers should be sanctioned. Where they are operating in good faith how does the suppression of the evidence advance the cause of justice? The police cannot stop themselves from acting in good faith but mistakenly. The guilty party going free will certainly not change the police action. In any case I am sure there are others but this is my pet peeve. Punish the wrongdoers police and ordinary criminals both.
I do not believe, BTW, that improper interrogation can ever be justified, before someone gives us that example of bad faith. so I guess the “in toto” is not accurate.
No way. I understand that everyone’s considered innocent until proven guilty, and everyone deserves a fair trial. But if the guy is guilty and I know it, then a “fair trial” would find him guilty. I’d hate to be the one responsible for sending a murderer or rapist free.
This may be the thing. When I defend, I do not ask the accused if he or she is guilty. In fact, I do not want to know–it can create ethical problems. For example, as a lawyer, I may not lie to a court, so I cannot represent a client whom I know is guilty to a court as “not guilty.”
Of course, if Crown discovery (for our American colleagues, that is the DA’s evidential paperwork that is the case against the accused) indicates that the accused is guilty and that fact will come out at trial, then I advise my client accordingly. Should he or she choose to plead guilty based on my advice, I will do the best I can to minimize punishment in a sentencing argument. And naturally, at all times, I protect my client’s constitutional rights.
But at no time do I ever ask the accused if he or she is guilty, and have often said to a client, “I don’t want to know.” Asking and knowing create ethical problems that don’t exist if I do not know.
Can you get around the knowledge issue by saying the evidence will show etc. I thought lawyers were not permitted to testify that they “know” their client is innocent anyway.
Yes, I could because it would be an interesting exercise. (Not saying I could do it long term, career-wise.) I could divorce myself from the emotional and try to make the pieces fit, logistically and legally. I would want to “win,”—not so much the defendant’s freedom as acknowledgement of my better argument. (I’m not spell-checking, so sue me.)
Lawyers representing clients don’t typically testify in their client’s matters, so that point is off the table.
If I believe (note the word believe) that there is a hole in the Crown’s evidence, I will exploit it. Here is where I can use an “evidence will show” argument. But without knowledge of my client’s guilt or innocence, I am always presuming, as does the Constitution, that my client is innocent, and argue accordingly.
Ok, I totally agree with you, the thing is, I was considering the question as in the OP that the client is caught in act, therefore guilty. There was a case recently in my country where a husband killed his whole family including his wife, then tried to kill himself but didn’t succeed. There is no question about his guilt and the act is heinous. So the defense lawyer, in my opinion, should not allow his client to go for the innocent plea. That would be offensive to the victims and their relatives and everyone affected. The case is clear and the defense should focus on the factors that might bring a punishment that works better for the accused - maybe an asylum instead of jail or whatever the facts point in that case. But to go for innocence is insulting.
I don’t know how that works in the States or other countries but our top of the line defense attorneys work this way. There is no way they would try to get the guilty party out of it with no punishment - if the accused do want to pursue with the innocence idea, they have to choose another attorney which mostly ends up hurting their case. That rarely happens, the most awful cases always end up with these top attorneys because the accused want them to present themselves because they make a good solid case within the parameters. And if one of these esteemed ones do go in with the innocent plea you can be sure there is something there that makes you question the whole case. One of them said in an interview once that if his client has confessed already but tries to revoke it for the court he will drop the case at once because he expects the client to act honorably no matter what the crime is. The deed is done, but you can still try to be a man to face the consequences.
Personally, I believe that our “criminal justice” system has devolved into a “punish at any cost” system. We have no interest whatsoever in even exploring the possibility of any alternative methods that will move out society in the direction of healthy social order. “Do the crime, do the time” is the mantra of the system, irrespective of any societal objectives or results. When a person misbehaves, the entire thrust is to mete out some form of punishment in the form of barbaric incarceration, with “closure” high on the agenda if there are any victims.
If I were an attorney, I would feel it my moral duty to do anything possible to disrupt our headlong plunge into incarceration as the default resolution for every offense. Since there are only two possible outcomes (incarceration or acquittal), I would seek acquittal, as a moral position, in every prosecution, even for the guilty…
Question and poll are too vague. “Pretty sure” he’s guilty isn’t cutting it, so yes I could. If I KNEW he was or was sure beyond any reasonable doubt, I’d do it and try to lose without being obvious about it. I might also run him over in the parking lot if nobody is looking. Ditto this Denver POS and Vick and a wide variety of other slime who’s demise would make the world a better place.
