IAA Criminal L. I agree with your first point, but disagree with your second. At no time do I know if my client is guilty.
Among my first words to a new client are “I don’t want or need to know if you are guilty or not. Don’t tell me.” This allows me to look at the prosecution’s evidence against my client objectively, and advise him or her appropriately as to how to proceed. Of course, I ask questions of my client in light of the prosecution’s evidence, but none have to do with guilt or innocence; I’m simply seeing if the client has something that might negate or call into question the prosecution’s evidence.
Another reason I don’t ask is because to know might violate our bar’s code of ethics. Under it, I cannot represent a client whom I know to be guilty to a court as not guilty. I cannot lie to a court, in other words. If I do not know that the client is guilty, I can still represent him or her to a court as not guilty.
It is “innocent until proven guilty,” and I agree that guilt is only levied upon conviction by a court. But I find it easier and more ethical to represent criminal clients if I have no idea if the client is guilty or innocent before we get to court.
Does this extend to the initial plea? I.e. you may know he’s guilty but still enter a not-Guilty plea?
I’ve seen this done a lot here. The idea is to challenge the evidence and the only way that can be done is with a not-guilty plea. So even if you know (or suspect) they are guilty you can still do your best to negate prosecution evidence and create reasonable doubt in the mind of the jury.
As an aside, there are a fair number of false confessions. Can’t a defence lawyer assume that the client isn’t telling the truth about being guilty and act accordingly?
It may different in different jurisdictions, but in England (and I assume most common law countries are very similar) pleading not guilty or instructing counsel to defend you as not guilty after you have admitted your guilt privately to counsel would professionally embarrass counsel and they would have to withdraw.
Similarly, in Canada changing a plea from not-guilty to guilty can sometimes be problematic for the lawyer if the client appears to be not guilty but is pleading out to lessen time behind bars prior to a trial and to mitigate the possibility of a longer sentence should he be found guilty.
Nobody who knew the case thought he was guilty of attempted murder. Not the victim. Not the friends of the victim. Not the prosecutor, not the judge.
The prosecutor thought that they were never going to get less than four years, and they could have called it jaywalking or High Treason and still would have won.
The defense thought that they were never going to get less than four years, and they didn’t need the risk/aggravation of a trial, even if they could have got funding, which wasn’t there. The central fact of the case was never in question.
Of course, nobody ever knows exactly what was going on in his mind at the criminal moment, or even before or after, when he stopped the bleeding and called the ambulance. But those of us who knew the two people had pretty clear opinions, and by the time the case came to court the police and the defense had formed pretty much the same opinion: I’m happy to stick with the consensus view, rather than adopting the name of the conviction.
I’ve checked up on this in Australia. Yes a lawyer can enter a plea of not guilty but with a very restricted set of defences. Essentially all they can do is to make the prosecution prove their case and are not permitted to put in evidence anything they know is false - such as the defendant testifying he didn’t do it.
In reality very few lawyers continue with a defendant if they have admitted guilt because it’s too hard to win the case and the lawyer risks telling the court something they should have known is false.
In general the fiction the defendant is innocent is maintained to make it easier on the lawyer.
Appreciate the thoughtful replies everyone. I am taking away:
No one really knows, because there is no objective way to know guilt.
A very high proportion of those who go on trial are found guilty.
I don’t think I saw anything about what % of cases get dropped before trial, folks seem to be saying most of the innocent get filtered out there. Thanks for the interesting responses.
In my experience, very few (but some) cases get dropped by the prosecution before trial. If the police have charged the guy, and the prosecutor has filed charges and/or gotten an indictment, they’re usually going to go forward unless something dramatic shows up. Even then, they’ll probably offer a greatly reduced charge to get a “conviction” even then.
To her great credit, a prosecutor in one of my cases (Felony rape of a child) dropped all charges rather than offer a misdemeanor when we really established pre-trial that the crime was very unlikely to have been committed. More commonly, they would have offered a deal too good to pass up. This prosecutor, however, said “we either think he did it and offer no deals, or we don’t think he did it and we drop the charges.”
I wouldn’t say that. It is not a fiction; in my jurisdiction anyway, the accused (what we call the defendant) is indeed innocent until found guilty by a court.
Well certainly. By legal definition he is guilty of the crime he is convicted of.
But apart from that, nobody who was familiar with the case thought he was guilty of the crime of attempted murder. It was just what fell out of a system which requires prosecutors to present cases for trial if they think that there is a reasonable chance of conviction, and rewards criminals for accepting a guilty plea.
My point was that it’s not an unusual situation: there are people in prison who are guilty of crimes different than the crimes they are convicted of.
When running a case, a lawyer will try to estimate, given the admissible facts, if the client will be found guilty, so really it’s not a matter of knowing whether or not a client is guilty, but rather predicting likely outcomes and trying to steer the case to the best possible outcome.