In say a murder case. The client is pleading not guilty even though he did it. Does he usually tell the lawyer everything, or does he lie to the lawyer too? Maybe it’s just implied, but not spoken about directly? I realise that this may be difficult to answer, but does anyone have a general idea?
IANAL, but…
[ul][li]Most criminal defendants are factually guilty.[/li][li]Defense lawyers aren’t stupid, as a rule, and so they realize this.[/li][li]I don’t know how often it happens, but one shouldn’t confess to your lawyer. If you do, your testimony will be perjury (if you testify in your own defense) and the lawyer is ethically bound not to let you perjure yourself.[/li][li]The defense lawyer’s job is to raise reasonable doubt about his client’s guilt. So he will tend not to ask, or want to know, if you really did it. He is more likely to try to challenge the evidence against you - the clerk at the store you robbed couldn’t pick you out of a line-up, there are no finger prints at the store, the pistol you had couldn’t be proven to be the one you used to rob the store, your girlfriend says you were drinking with her when the store was robbed, etc.[/li][li]Unfortunately for criminals but fortunately for the rest of the world, criminals are mostly stupid. They incriminate themselves, they commit crimes right in their own neighborhoods, they tell clumsy and easily disprovable lies even to their lawyers, they get drunk and high and brag about their crimes, and generally fuck up being a crook as badly as they fuck up most of the other portions of their lives.[/ul][/li]Two illustrative anecdotes -
[ul][li]A criminal decided to act as his own lawyer (rarely a good idea). He was cross-examining one of the witnesses against him. His idea of cross-examination was to ask questions like “Did you get a good look at my face when I robbed you?”[/ul][/li][ul][li]There were a large number of defendants from the local jail being brought before a judge for arraignment. The judge was reading thru his list of cases. He got to one case, glanced up, and asked, “Which of you people are the ones who robbed the bank?”[/li]
Three of the defendants dutifully raised their hands. [/ul]
Regards,
Shodan
The job of the defense is to show that the prosecution has not made a strong enough case. Whether the defendant is factually guilty or not is not as important as whether the prosecutors can prove this guilt beyond a reasonable doubt.
The defense does not need to prove innocence.
Knowing whether or not a defendant has actually committed the crime may prevent a lawyer from applying an affirmative defense*.
*Not sure ‘affirmative defense’ is the proper term.
Will a defense attorney ever advise/allow his client to completely change his (false) story? Lets say I commit a murder. I claim that it couldn’t have been me, I was at work during the time the man was killed.
My lawyer says, “ok, so when the prosecution subpoenas your time card at work, that’s going to agree with you’re story right?”
Can I then just say “Ok, forget the work thing! I was ACTUALLY at the bar with my friend Jimmy all night, go ahead and ask him!”
“Ok, so if the prosecutor finds surveillance footage of the bar, you two will be on that tape right?”
“Ok, good point. Forget the bar! I was actually visiting my mom!”
Will the lawyer then say “Ok, as long as you’re mom agrees then I think that’s our best bet”.
Or would the defense lawyer instantly realize the prosecution will tear my phoney story to shreds, but is obligated to let me use that defense?
It seems the lawyer would be better off knowing the truth (that I committed the murder) that way he wouldn’t have to worry about my amateurish stories fouling things up.
He could better predict the prosecutors strategy. For example, what if I know that in a panic I left my wristwatch on the crime scene but the police haven’t found it…yet. Shouldn’t my lawyer know that so he can prepare for that in case it is entered as evidence?
An affirmative defense in the criminal context is one that assumes the defendant did commit the act alleged, but should not be found guilty anyway. For example, duress: “I only hacked into the Pentagon because a terrorist held a gun to my head.” Is that what you meant?
No, that’s not it. I remember the case of a guy in CA who kidnapped and killed a little girl. There was a big hubbub because he presented a defense that his client didn’t do it instead of simply attacking the prosecutor’s argument even though the lawyer knew the defendant had committed the crime. I’ll see if I can find some details.
Generally lawyers know their client is guilty. The difference is that if the client tells them that privately they can’t then use ‘someone else did it’ defences.
So if you want the best possible range of defences don’t tell your barrister you did it.
On the other hand trials are typically fixed length so you pay the same for either a number of defences in shallow detail or one or two defences in great detail.
I’m not a lawyer but I act as an expert in lots of criminal cases. Most accused are guilty as hell, but a few percent may actually be innocent. A small percentage go to jail when the they are either innocent or the evidence really is too weak to convict them.
If this lawyer ever gave you advise other than “Sit down and shut up” I would seriously suggest finding another attourney to represent you. Again, you don’t need to do or say anything to show you didn’t do it, the prosecution has the burden of proof.
You seem to be implying that the defendant just sits there and hopes the prosecution doesn’t present anything good.
“I didn’t do it” is just “a defense” rather than an affirmative defense.
Strictly speaking, an affirmative defense is one that the defendant has the burden of proving. What you’re positing is simply a defense, an attempt to raise reasonable doubt. (ninja’d by RNATB!)
I am a civil litigator, so I cannot speak directly to the OP, but certainly I want to know everything, good and bad, so that I can plan accordingly. It may be different in the criminal context, but I expect that the defense lawyer in such cases typically would not be arguing that someone else did it, but rather that the prosecution’s evidence does not prove the client’s guilt because it leaves open the possibility that someone else did it.
I think it’s this case, the kidnap and murder of Danielle van Dam. Reading the wiki and the references it’s not clear what the complaint was about the lawyer’s conduct, and it was also something heavily promoted by Bill O’Reilly, so that additionally clouds the details. It sounds like the complaints were about an “I didn’t do it defense” when there as knowledge that the defendant had done it based on an attempted plea deal before the trial.
Also, the lawyer is limited when his client wants to take the stand when he knows he may commit perjury.
Yes, but it’s not always black and white.
Maybe the prosecution has a bunch of suggestive evidence. The defense could argue ‘hey, it’s not absolute proof’, but maybe the jury/judge will think it’s good enough. If the defense could instead present a tight alibi, that’s a whole lot more likely to succeed for them.
So a good defense attorney won’t say “Tell me if you did it”, but she might say “Can you prove you were somewhere else at the time of the crime?”. Now, when the defendant gets to his third version of where he was, as in the example, she’ll probably say “OK, never mind about the alibi; we’ll just attack the prosecution’s evidence.”
This was a great answer and makes sense to me, thanks!
Good point. It seems to me, that anything other than a vigorous affirmative defense is proof that the defense lawyer harbors doubts (about his client’s innocence). I understand that it is the defense council’s job to create doubt about the prosecution. But if the defense knows that the client is guilty, are they reduced to just attacking the evidence?
Take the subject of DNA evidence-the defense can say that it was improperly handled, contaminated, etc…but does it have to PROVE this?
I disagree.
Sometimes all a defendant can say is “I didn’t do it.” A pleas of not guilty, ladies and gentlemen, is my client saying, I didn’t do it. Once he says that, the State must establish each element of the crime beyond a reasonable doubt.
Most people plead guilty because it is obvious to the defendant, the prosecution, and the defense attorney that he is guilty and will be found guilty at trial. Sometimes there is some doubt about the outcome at trial, or some mitigating factor, and a plea deal will be offered. Sometimes a plea deal is offered just to ease court congestion.
For the 5% or so that go to trial, there is either 1) a defense that can be argued with a straight face, 2) a client who might actually be innocent, or 3) such a terrible crime and such overwhelming evidence of guilty that there is nothing offered to make a plea attractive and the defense decides to see if something strange happens in court.
To answer the OP’s question. Some defendants told me they were innocent (and some of those I believed either were or might be) some told me they were guilty, but sometimes of a lessor offense. “Yes, I broke her door down and ran into her apartment, but not to assault her, but to tell her I loved her.” That could be the difference between trespassing and burglary.
Here’s the case in question and here’s a blog post about it, in case anyone is curious. The exact line is “How do you know it was me, when I had a handkerchief over my face?”
There is also the matter of discovery, where the prosecution is supposed to turn over names of witnesses and police reports and evidence like that. This is partly to speed things up - a defendant who is confronted by a pile of unimpeachable evidence that he is as guilty as Cain is more likely to accept a plea bargain. But I don’t see why a defendant who is claiming he was at work wouldn’t be advised by his attorney “they subpoena’ed your time cards - are you sure you were at work?” If the defendant then says, “Come to think of it I was at a bar” then the attorney could go to the bar and ask if they had surveillance cameras, and subpoena the tapes. If it turns out they do, but the client doesn’t appear on the tapes, it would be a bad idea to tell that story because the prosecution can show the same tapes and disprove the alibi pretty conclusively. And it sounds rather lame to be coming up with a string of alibis that are shot down one after another and then finish by saying “I was with my mom - really and for true, this time!”
Having your alibi exploded does not prove guilt beyond a reasonable doubt, all other things being equal, but it does prove that you are a liar.
And the prosecution is going to have evidence to show that their theory of the crime is true beyond a reasonable doubt.
But if the DA says "the victim says a guy in his early twenties wearing khaki pants and a red shirt robbed him at 2:42pm using a blue steel revolver, and got $423. The defendant was arrested twenty minutes later, wearing khaki pants and a dark red shirt. He had a blue steel revolver and $423 with him when he was arrested.
The suspect was advised of his rights. He signed a statement saying he was at work at the time. His timecard for that day is exhibit A. It shows he was absent from work that day.
Subsequently, the suspect said he was in a bar. The surveillance tapes are exhibit B. They show that he was not in the bar on that day.
Exhibit C is a wrist watch similar to one described as having been worn by the defendant. It has his fingerprints on it. and is inscribed on the back 'To My Son Upon the Occasion of His Graduation from Happy Sunshine Reform School. Love Mom".
And the defendant responds “It wasn’t me - I was with my mom” then he better hope his mom makes a really, really convincting witness.
Regards,
Shodan
ETA - Thanks, The Joker and the Thief.
Discovery, as demonstrated in the greatest and most accurate courtroom movie ever, My Cousin Vinny.