Defense attorneys and guilty clients

Factual Questions
1

Hey all,

Years of courtroom dramas on TV and in movies have left me confused about the responsibilities of defense attorneys representing clients.

To state it simply: If a defendant blurts out a confession to his attorney (in private, no witnesses), how can the attorney continue to put on a defense?

Assuming the defendant is not legally insane, wouldn’t his lawyer be encouraging perjury if he brings witnesses or introduces an alibi when he knows his client is guilty?

I know in the real world, defense attorneys represent people they know to be guilty all the time, but what is their technical, legal or ethical duty in this case?

Thanks
first time Doper

2

You can only commit perjury if you are testifying, lawyers don’t testify, they just present their clients case and their obligation is to present the case as the defendant requests.

3

Let me state first that I am a lawyer but I do tax and not criminal law. I took the class, though :smiley: and this is the kind of thing discussed ad nauseum in professional responsibility courses, etc.

My take on this is that if you aren’t going to believe the defendant when he said he didn’t do it, why do you automatically believe him when he says he did? Other lawyers have not been very receptive to this, and normal people even less so. I like it, though.

The more traditional answer is that every defendant deserves a good defense even if he’s guilty as sin. It’s the job of the defense attorney to muster up the evidence in favor of his client and put it up in front of the jury to try and create a reasonable doubt in the jury’s mind about the defendant’s guilt. So, a defense attorney doesn’t really say “he didn’t do it,” he only says “there’s a reasonable doubt about whether he did it or not.”

Also, remember that it’s not always about whether he did it or not. Sometimes it’s about what exactly he did. For example, maybe the charge is murder 1 but the defense attorney thinks the facts don’t show premeditation (or whatever), so the charge should really only be murder 2.

No. The first two items below are kind of my own ideas, and many people find them wrong, and some even think I’m evil because I think like this. The third one is more straightforward.

First, by definition a defendant is not guilty of anything until the jury finds him guilty, so it is impossible for a defense attorney to know his client is guilty.

Second, just because a defendant tells his defense attorney that he committed the crime doesn’t mean that the defense attorney knows his client committed the crime.

Third, perjury is lying under oath about facts. When a defense attorney puts a witness on the stand, the witness simply relays facts, what they saw, heard, etc., and when and where. They don’t simply say “the defendant is not guilty.”

Also, welcome aBoard! I hope you like it here.

4

Clockworko, are you by chance a high school debate student?

Since the Sept.-Oct. Lincoln-Douglas topic relates to privileged communication vs truth-seeking, I had to ask. Hope you get some useful info.

5

One defense tactic (probably used more in courtroom dramas than in actual courtrooms) is to mount a defense by casting suspicion of guilt on some other person. If you, as the defense attorney, know that the defendant is guilty (because he told you so), are you ethically precluded from attempting this?

6

In a practical sense, I think a defendant needs a good defense because the offense (prosecutor) is pushing for the maximum penalty. The defense pushing in the other direction would result in a more reasonable sentence.

7

IANAL, but It is my impression, especially after the VanDamme case, that Lawyers can’t KNOWINGLY mislead a jury as to a client’s guilt. (Disclaimer:I’m basing this on Bill O’Reilly’s take on the case).

8

Its something of an ethical grey area, but I don’t believe its not allowed anywhere in the US of A.

9

I think this needs to be demonstrated. I don’t think as a theoretical matter that a defense attorney “knows” his defendant is guilty simply because the defendant says he’s guilty.

I wish one of the more criminal-savvy attornies (Bricker, paging Bricker) would get in here and let me know what extra responsibilities a defense attorney would have if his client says he’s guilty.

10

There are two areas in tension here - the ethical duty that every lawyer has to not mislead a tribunal, and the duty of zealous representation that is owed to every client.

It’s true that the mere confession by an accused to his attorney does not seal the issue. People make false confessions all the time. However, we can’t balance the fact that defendants lie about their guilt by proclaiming innocence to juries all the time, so we may equally well believe that a defendant is lying about his innocence by proclaiming guilt to his lawyer. The statement to the jury is obviously self-serving; the self-inculpatory statement to the lawyer is more likely to be true than not.

In any event, there is no bright-line rule. If the attorney is convinced that his client intends to presents witnesses who will offer perjured testimony, he has an ethical duty to prevent such testimony. What it takes to convince him is not carved in stone. I’d say that whatever reasoning he’s using to convince himself that the testimony is not perjured is something that he should feel good about explaining to bar counsel at a disciplinary hearing, should one ensue. If his client’s confession was consistent with the other evidence and the prosecution theory of the case, I don’t think he can simply say to himself, “Well, I don’t know for sure he’s telling the truth when he confesses.” If the confession is inconsistent with other facts, or incredible on its face, he’s on surer ground.

What’s more difficult is when a client intends to offer perjured testimony himself. Unlike the calling of other witnesses, which the lawyer can refuse to do, the client has an absolute right to testify in his own defense.

A lawyer placed in that position should first seek leave to withdraw from the case. Without divulging the reasons - “I feel my client and I have sharply divergent trial strategies in mind…” - he can ask for substitute counsel to be appointed.

Assuming this is not permitted, his only course of action is to put his client on the stand and let him testify in narrative, and then argue other facets of the case, ignoring the perjury. He is thus conforming both to his ethical rules and to the requirement of offering the best legally-permitted defense for his client.

  • Rick
11

Note that with the sort of “noisy withdrawl” that Bricker mentions, the judge and the prosecution will probably understand that the client is going to perjure himself (or at least that the defense attorney thinks so) but the jury will probably not understand this. (Indeed, I expect that in most cases the jury won’t even hear it tho’ I don’t have experience in the area.) This may assist the government in presenting its case in indirect ways – it might suggest to the prosecutor that he look more closely at the defendant’s corroboratory witnesses, for instance.

–Cliffy

12

It’s doubtful that the jury will understand the reason that the accused is testifying in narrative form, and of course any attempt by the prosecutor to argue that they should infer he’s lying because he testified without his attorney asking him questions is edging into mistrial land.

The actual request to withdraw from representation should NEVER be done in open court. Even a sidebar is questionable.

In fact, depending on the circumstances, this is one time in which an ex parte communication to the judge might be permissible, although you must be careful to limit your communication strictly to the issue of withdrawal.

If circumstances don’t warrant ex parte, at the very least, this request should be made on the record in chambers – on the record because, while you want to zealously represent your client, you also want to zealously protect yourself from your client’s future appellate attorney, who will be looking to make Strickland hash out of whatever you do. Zealous advocating for your client does NOT include helping him make a Strickland appeal.

  • Rick
13

The above assumes you’re an appointed counsel for an indigent defendant. As a private attorney, assuming you or your client can arrange alternate counsel, it’s a simple matter of asking that the new guy substitute in for you as attorney of record. Unless this is the morning of trial, the last in a string of continuances, or otherwise perceived as dilatory, it’s no problem.

Because, you see, the life of a private defense lawyer is wine and roses, I’m convinced.) :smiley:

14

One variation on a theme -

OK, the defense attorney is required to present the best case he/she can.

Q: How ethical is it to really, really HOPE your client is convicted?

I’m not talking about a plain old railroad job - I mean, given that you have presented the best case you can, are you permitted to (secretly) hope the twit fries?

Would such sentiment require you to withdraw?

Is the concept of hoping against your client’s interests absolutely impossible to imagine?

15

No criminal-defense lawyer starts a trial with a guilty client – though he may very well finish with one.

This is not a semantic quibble.

A client is charged with a crime, perhaps several counts of various crimes relating to the same incident.

What that means is that the state (crown, etc.) is alleging that he committed acts that meet the definition contained in the penal statute, which usually reads something like" A person is guilty of X when he knowingly, intentionally, and maliciously does Y," sometimes “under circumstances Z.”

It is entirely plausible that perpetrator X, accused of crime Y, did exactly the act contained in the information, indictment, or whatever is the document under which the case begins – but did not commit crime Y for reasons contained in the adverbs or because of the inapplicability of circumstances Z.

Even if he did apparently commit crime Y, he is still entitled to the best advocacy available to him, because there may be mitigating circumstances not warranting the maximum sentence.

And there was an article a while ago in Reader’s Digest by a criminal defense lawyer in which he represented a client who was convinced that he himself was guilty of a crime, which he didn’t recall committing owing to a head injury occurring shortly after the crime was committed – who proved to be completely innocent of the charges and only circumstantially involved in the case at all, once the facts were fully uncovered.

16

Far as I know, your personal feelings as a lawyer are irrelevant. You’re being paid to do a job so you do that job to the best of your ability.

A doctor might have to operate on someone he really, really hates but whilst he is operating he is under an obligation to perform the operation as best he can even if he secretly hopes the bastard doesn’t make it through.

Likewise the lawyer will represent his client as best he can, even if he hates the guy. Even if he thinks the guy is guilty, he doesn’t know the guy is guilty - there’s a difference. If the client tells him he’s innocent then as far as the lawyer’s concerned, he’s innocent.

The lawyer doesn’t have to believe him. It doesn’t matter what the lawyer personally believes. He’s being paid to do a job, he can’t let his personal feelings get in the way.

Yes.

No.

Not at all, lawyers do it all the time.

Imagine you’re some small town criminal lawyer who’s been working for 30 years. You get to know who all the local petty criminals are. So when you get called into the police station to see Joe Criminal for the 50th time you start to get the idea that he probably did it (since he was guilty the previous 49 times and has only been out of jail for a few weeks).

But if he claims he didn’t do it then you have to represent him like it’s the first time you’ve ever seen him.

Obviously there’s all kinds of caveats as mentioned by Bricker and Polycarp - maybe he did commit Crime Z but he’s not legally guilty of it because of Circumstances Y so even if he thinks he’s guilty, he may not be.

Should mention that I’m in the UK not in the US, but the basic principles of US law are the same as UK law. I’m qualified as a lawyer in the UK (although not working as one at present), if I wanted to practice in the US then all I would have to do is a one year conversion course.

17

It’s perfectly ethical to hope you lose as long as this does not effect your ability to zealously advocate your client’s interests. A lawyer in this situation would have to think seriously about whether he really was doing his job or whether he was letting his private desires interefere with his professional conduct.

–Cliffy