# Do defense attorneys feel remorse about helping guilty defendants get off scot-free? **URL:** \ **Category:** In My Humble Opinion\ **Created:** [March 5, 2015, 6:17pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297 "2015-03-05T18:17:16Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [March 6, 2015, 8:43pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/61 "2015-03-06T20:43:09Z")
> [@Bricker](#): > > Actually, even a bit more sticky. Your client has an absolute right to testify in his own defense. You have an ethical obligation not to suborn perjury. These two mandates can be in tension if you know your client intends to lie under oath when he testifies. > > Sometimes you might seek to withdraw, citing an ethical conflict. But that might trigger a mistrial, and the judge may not let you. In that case, since you have no choices left, you let your client testify in the narrative, and don’t argue his testimony at closing, walking the narrowest of lines between candor towards the tribunal and zealous representation. I never had to withdraw from a case. Usually clients would accept my advice not to testify (if their story is obviously a lie) or will tell the same story the jury that they told me, so even if untrue, it’s not my call to make. There is some ethical gray areas that are common, such as “I don’t want you to tell me what happened yet, I want to explain to you what the police are saying, and I want to explain the law to you. Then, you can tell me what happened…” ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [March 6, 2015, 9:16pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/62 "2015-03-06T21:16:18Z")
It’s just not true that it’s a defense attorney’s job to do anything and everything to ensure an acquittal for their client. A defense attorney is an officer of the court and they have a long and extensive code of ethics that they are legally obliged to follow. The obvious example is perjury. Even if a defense attorney thought that encouraging the defendant or a witness to lie on the stand would help the case, they are prohibited from doing so. And as was said above, most trials don’t come down to a test of skill between the champions of the two sides. Most trials aren’t like on TV where an impassioned speech sways the jury, or knowledge of some arcane rule turns the case inside out. In cases where both sides do their job with due diligence, the outcome would be the same regardless of what attorney is on what side. The notion that if a serial rapist got a superstar defense attorney they’d be able to rape with impunity knowing their lawyer could find some technicality to set them free is nonsensical. ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [March 6, 2015, 9:17pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/63 "2015-03-06T21:17:35Z")
isn’t it a practice of most defense attorney’s to never ask if their client “did it” ? this way, there is never a conflict and they are truly free to remain objective. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [March 6, 2015, 9:45pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/64 "2015-03-06T21:45:10Z")
> [@Enginerd](#): > > They’re not based on a contradiction at all - both sets of ethical standards are based on the idea that it’s less harmful to society to let a guilty defendant walk than it is to convict an innocent defendant. So the DA’s standard is that (s)he can’t prosecute unless convinced of guilt (more likely to let guilty go than prosecute an innocent), and the defense’s standard is to make the prosecution prove the case beyond a reasonable doubt (same goal). That’s not quite what I was talking about. In one case, a lawyer cannot exercise his judgment because a lawyer’s judgment is irrelevant. In the other, the lawyer must because it is. I understand the motive behind this, but it is still a contradiction. Regards, Shodan ---
**Author:** ![get\_lives](https://avatars.discourse-cdn.com/v4/letter/g/ecb155/32.png) [@get\_lives](https://boards.straightdope.com/u/get_lives)\ **Post date:** [March 6, 2015, 9:56pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/65 "2015-03-06T21:56:53Z")
> [@Aspenglow](#): > > Bit of a reach, don’t you think? Agree with **Princhester** , that most folks don’t understand the approach of attorneys in how they look at/try a case. No one sits around scheming on how to get guilty people off. They discuss the process. > > I think it could be inferred from the fact that I worked for 6 years at a public defender’s office that I have no problem working on behalf of guilty people. So why would any attorney I worked for assume that their efforts in “getting guilty people off” would be, as you put it, found unacceptable? > > The OP asked if defense attorneys had qualms about getting guilty people acquitted of crimes. My response is based on my personal experience only, and the answer to that – from my own experience alone – is no. My understanding of the reason for that is because they believe in the process of advocacy on which our system of justice is based. Not sure why you are trying to make this about me or my views, which are fully irrelevant. I was really referring to DAs that attempt to prosecute people they believe to be innocent. ---
**Author:** ![Calatin](https://avatars.discourse-cdn.com/v4/letter/c/439d5e/32.png) [@Calatin](https://boards.straightdope.com/u/Calatin)\ **Post date:** [March 6, 2015, 9:58pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/66 "2015-03-06T21:58:08Z")
Even though IAAL, I actually got to sit on a jury in a criminal trial years back. All the strikes had been used on jurors earlier, so they were stuck with me. The facts of the case (and the evidence against the defendant) were quite humorous, as the guy obviously did it and just ran into an enormous case of bad luck. (As soon as he stole a woman’s purse, he ran by a cop car, and officers got out and gave chase. They had DNA evidence on the purse and the chase route, as the guy punctured his hand on a pigeon spike when jumping a fence. They found the guy in a backyard surrounded by the purse’s spilled contents and later found the purse on the roof of the nearby house. And there’s more.) The defense hinged on (during a 30 second period in which the defendant was out of sight) the fact that the snatcher had on a shirt and hat, and when they caught the defendant, he was both shirtless and hatless, even though they found the items along the chase route. It didn’t take us long to find him guilty, but the interesting thing was, at one point in the trial, I saw a former law classmate walk into the court and had the defense attorney something. When he saw me, he gave me a quizzical “why are you here?” look, and I just shrugged from the juror box. After the trial, he told me that the defendant wanted to testify. He was going to explain the situation by saying that the reason he had cut his hand was because he had been smoking crack earlier that night, and broke his pipe. He was walking around and saw a purse on the ground and he picked it up. When he saw the police, he panicked and ran. (The full story is a lot more comical) I don’t know if they forbade him from testifying, but my friend told me that they \*STRONGLY \*advised that he just roll the dice as-is, and offer to plea bargain, depending on the verdict. ---
**Author:** ![handsomeharry](https://avatars.discourse-cdn.com/v4/letter/h/e9c0ed/32.png) [@handsomeharry](https://boards.straightdope.com/u/handsomeharry)\ **Post date:** [March 7, 2015, 5:11am UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/67 "2015-03-07T05:11:47Z")
> [@VinylTurnip](#): > > He already said they shouldn’t! Quit badgering him! Too late…he’s already confessed. ---
**Author:** ![Mr.Nylock](https://avatars.discourse-cdn.com/v4/letter/m/77aa72/32.png) [@Mr.Nylock](https://boards.straightdope.com/u/Mr.Nylock)\ **Post date:** [March 7, 2015, 6:01am UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/68 "2015-03-07T06:01:03Z")
> [@handsomeharry](#): > > Too late…he’s already confessed. Still doesn’t mean I’m absolutely guilty. ---
**Author:** ![get\_lives](https://avatars.discourse-cdn.com/v4/letter/g/ecb155/32.png) [@get\_lives](https://boards.straightdope.com/u/get_lives)\ **Post date:** [March 7, 2015, 12:07pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/69 "2015-03-07T12:07:49Z")
If I were defending someone I felt very likely to kill human(s) when set free, I’m going to do a barely-adequate job defending him or her, just enough to avoid a successful appeal based on the quality of my defense. However, this obviously is a rare circumstance. ---
**Author:** ![get\_lives](https://avatars.discourse-cdn.com/v4/letter/g/ecb155/32.png) [@get\_lives](https://boards.straightdope.com/u/get_lives)\ **Post date:** [March 7, 2015, 12:09pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/70 "2015-03-07T12:09:16Z")
> [@Mr.Nylock](#): > > Still doesn’t mean I’m absolutely guilty. If 5 Dopers are posting in a thread, 6 of them are guilty! Of Mopery! ---
**Author:** ![simster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/simster/32/1047_2.png) [@simster](https://boards.straightdope.com/u/simster)\ **Post date:** [March 7, 2015, 3:34pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/71 "2015-03-07T15:34:38Z")
> [@get\_lives](#): > > If 5 Dopers are posting in a thread, 6 of them are guilty! Of Mopery! Dopery Mopery, doc? ---
**Author:** ![get\_lives](https://avatars.discourse-cdn.com/v4/letter/g/ecb155/32.png) [@get\_lives](https://boards.straightdope.com/u/get_lives)\ **Post date:** [March 7, 2015, 4:54pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/72 "2015-03-07T16:54:30Z")
> [@simster](#): > > Dopery Mopery, doc? Heh 😉 ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [March 7, 2015, 6:15pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/73 "2015-03-07T18:15:01Z")
> [@Bayard](#): > > I know the real issue. You want the state to be able to lock people up _without a defense!_ Well, that may be well enough for you, but I wouldn’t want to live in a country like that, thankyouverymuch. > > So far **Procrustus** and **Calatin** seem to have provided insightful answers to the question **Velocity** actually asked. Can we get to three meaningful replies? Three? We can do it! There are plenty of people locked up in US prisons who were coerced to plead guilty or convicted when innocent with a defense that amounts to no defense. So, you do live in that country. ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [March 7, 2015, 6:23pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/74 "2015-03-07T18:23:18Z")
> [@get\_lives](#): > > If I were defending someone I felt very likely to kill human(s) when set free, I’m going to do a barely-adequate job defending him or her, just enough to avoid a successful appeal based on the quality of my defense. However, this obviously is a rare circumstance. In my experience, people who find excuses to violate ethical codes start making other exceptions. After all, if you think you’re above the rules, why would you abide by them? If you want the rules to be different for those accused of murder, make a case for the rules to be different. Just saying that the defense attorney should substitute their judgment is not a principled rule, it’s an attempt to push off the state’s responsibility to prosecute effectively onto the defense. ---
**Author:** ![RivkahChaya](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rivkahchaya/32/8919_2.png) [@RivkahChaya](https://boards.straightdope.com/u/RivkahChaya)\ **Post date:** [March 7, 2015, 7:25pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/75 "2015-03-07T19:25:53Z")
> [@Velocity](#): > > Good point. Maybe I’m overly cynical, but I suspect that there are a few lawyers who get a thrill out of ruining justice by getting guilty defendants acquitted (just like I suspect there are a few prosecutors who get a kick out of watching innocent people get convicted,) but they’re probably the tiny minority. The vast majority of attorneys are probably ethical and just doing their job. I suspect that the majority of lawyers on some kind of power trip satisfy it by just being part of the system. There might be a few prosecutors who get a kick out of seeing just how much they can charge someone with, rather than considering what is fair or just, but IME, the kind of “screw the system” people who would have fun mucking things up, probably would never get through law school. > [@Left\_Hand\_of\_Dorkness](#): > > Let’s say it’s the defense attorney for a serial rapist. She discovers that the police illegally obtained the rapist’s recorded videos where he confesses to his crime and the thrill of committing them, and moves successfully to have the evidence suppressed. The state’s case falls apart, and due to this series of events (a sieries in which the attorney played one key role, even if it wasn’t the only key role), the serial rapist is set free. How common is it for a defense attorney to feel guilt over such acts? I would suspect that in a case like this, the case would be dismissed “without prejudice,” in other words, the case would be too weak to proceed without the confession, but the police would be free to continue to gather evidence, and the DA could re-present at a later date. And the lawyer should feel good about her role in giving the police pause if they consider doing this again at a later date. > [@Bricker](#): > > If that’s the question, then the answer is: yes, undoubtedly there are instances in which a defense attorney feels conflicted over the fact that his vital and necessary role had the result of releasing a person who had committed an act that, had the Commonwealth been able to prove it happened, would be criminal. It isn’t always the act that is in question: sometimes it’s simply whether or not the defendant did it. It’s a point worth noting, because a lot of men who have been exonerated by DNA of rapes had been misidentified, but there was no question that a rape took place. > [@Left\_Hand\_of\_Dorkness](#): > > But if I were the defense attorney, I’d really be goddamned torn up over the additional victim. I might know that the system only works with a vigorous defense, but I wouldn’t be able to escape the idea that, necessary for the system or not, if I’d not filed that appeal, that victim wouldn’t have undergone that suffering. I would have been a link in the chain. It’s not ultimately up to the defense attorney to file an appeal. In some cases an appeal is automatic. In others, it’s up to the defendant to go ahead with an appeal. I believe that there is sometimes even still room for plea bargaining after the verdict that may involve whether or not the defendant appeals. Also, FWIW, attorneys don’t like to spend their time arguing losing cases. If they have a clearly guilty defendant, they’re going to advise him to plea bargain, and save their arguing to get the best deal they can. If the defendant knows he’s guilty as well, he’ll probably accept a good plea bargain. Sometimes trials happen because the defendant thinks he can charm the jury, and sometimes because he’s batsh!t crazy and wants a forum, but other times, the defense attorney truly believes the defendant is not guilty _of the charges_. For example, say the defense attorney truly believes the defendant’s claim of self-defense in a case where someone is being charged with attempted murder, and the defense attorney tried everything she could to get a plea bargain for assault that involved house arrest and community service, but the DA refused to budge in insisting on prison time, while holding the threat of the attempted murder charge out hoping it would pressure the defense into taking a plea with prison time. Finally, the defense said “Let’s go to trial,” because she knows that the evidence for attempted murder won’t stand up. In that case, the attorney knows for a fact that the assault happened, but doesn’t think the incident amounts to attempted murder, and may have a witness to say the victim provoked the attack; she’s pretty confident in an acquittal, or at least a hung jury. Maybe she thinks the defendant deserved community service for not stopping the assault when the victim clearly wasn’t fighting back, but she thinks getting off scot-free is fairer than 20 years in a maximum security facility, and she’ll sleep a lot better if he’s free, than if they lose, and he gets a long prison term. ---
**Author:** ![Ann\_Hedonia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ann_hedonia/32/319_2.png) [@Ann\_Hedonia](https://boards.straightdope.com/u/Ann_Hedonia)\ **Post date:** [March 7, 2015, 8:10pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/76 "2015-03-07T20:10:45Z")
> [@Left\_Hand\_of\_Dorkness](#): > > That might be true, but I don’t think that answers the question. The question isn’t, **should** attorneys feel guilt, but **do** attorneys feel guilt? > > As for folks defending clients from victimless crimes, that, too, is only part of the issue: nobody would expect attorneys to feel guilt in these cases. The real question is about defending someone that you think is guilty of a victimizing crime. > > Let’s say it’s the defense attorney for a serial rapist. She discovers that the police illegally obtained the rapist’s recorded videos where he confesses to his crime and the thrill of committing them, and moves successfully to have the evidence suppressed. The state’s case falls apart, and due to this series of events (a sieries in which the attorney played one key role, even if it wasn’t the only key role), the serial rapist is set free. How common is it for a defense attorney to feel guilt over such acts? > > There are certainly stories of soldiers who felt guilty about the wars they fought in, even though they also saw themselves as fulfilling their duty. It would surprise me if there are no defense attorneys who face a similar emotional conflict. In this hypothetical situation, I think the guy that should be feeling guilty is the cop that illegally obtained the evidence. ---
**Author:** ![Mr.Nylock](https://avatars.discourse-cdn.com/v4/letter/m/77aa72/32.png) [@Mr.Nylock](https://boards.straightdope.com/u/Mr.Nylock)\ **Post date:** [March 7, 2015, 8:26pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/77 "2015-03-07T20:26:25Z")
> [@get\_lives](#): > > If 5 Dopers are posting in a thread, 6 of them are guilty! Of Mopery! I don’t understand the charges, sir. ---
**Author:** ![Bouncer](https://avatars.discourse-cdn.com/v4/letter/b/9d8465/32.png) [@Bouncer](https://boards.straightdope.com/u/Bouncer)\ **Post date:** [March 8, 2015, 7:24pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/78 "2015-03-08T19:24:30Z")
> [@Bricker](#): > > a prosecutor has an ethical duty to refrain from prosecuting a person he believes is innocent, \*even if he could obtain a conviction with the evidence he has. Ahhhhhhhhhhahahahahahaha!!! No. With respect, and I believe you are actually an attorney, but no. Prosecutors or Commonwealth’s attorneys care about winning/losing percentages, and apparently after about six months on the job they don’t give a damn about justice. They are completely willing to prosecute or threaten to prosecute cases where they have direct evidence the person could not have committed the alleged crime. I’ve seen a prosecutor offer a “plea bargain” for an alleged crime they absolutely knew could not have been committed and threatened that if the offer wasn’t taken they’d go for the full trial. The person was financially able to afford to call their bluff, and they ended up dismissing the charge completely. That made quite the impression on me on how much they cared about “justice”. And that they only tend to take “justice” into account if the person has the financial means to defend themselves. I’ve also seen a prosecutor direct indict someone after a Grand Jury returned a not true bill. Which made me question the point of a Grand Jury completely. Why bother? They may have an “ethical duty” written somewhere, but they do not, as a matter of course, pay any attention to it. Winning/Losing percentages are what matter. Not justice. I respect that you are an attorney, but direct experience tells me that in this, you are incorrect as a practical matter. /shrug Regards, -Bouncer- ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [March 8, 2015, 7:44pm UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/79 "2015-03-08T19:44:20Z")
> [@Bouncer](#): > > Ahhhhhhhhhhahahahahahaha!!! No. With respect, and I believe you are actually an attorney, but no. Prosecutors or Commonwealth’s attorneys care about winning/losing percentages, and apparently after about six months on the job they don’t give a damn about justice. They are completely willing to prosecute or threaten to prosecute cases where they have direct evidence the person could not have committed the alleged crime. He said they have an ethical duty, not that they live up to the duty. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [March 9, 2015, 12:05am UTC](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297/80 "2015-03-09T00:05:49Z")
> [@RivkahChaya](#): > > I would suspect that in a case like this, the case would be dismissed “without prejudice,” in other words, the case would be too weak to proceed without the confession, but the police would be free to continue to gather evidence, and the DA could re-present at a later date. > > And the lawyer should feel good about her role in giving the police pause if they consider doing this again at a later date. Good point. > [@Ann\_Hedonia](#): > > In this hypothetical situation, I think the guy that should be feeling guilty is the cop that illegally obtained the evidence. In general, I think guilt is not a commodity: it’s not something that gets divided up like bread, but instead something that gets shared like the flu. Everyone involved in a chain of actions with a foreseeable unfortunate consequence gets to feel bad about their part in it, not just the first person, or the person with the biggest part, or whatever. [Previous page](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297.md?page=3) [Next page](https://boards.straightdope.com/t/do-defense-attorneys-feel-remorse-about-helping-guilty-defendants-get-off-scot-free/714297.md?page=5)