Does the lawyer usually know if their client is guilty?

[Mijin]

I think it makes sense for a lawyer to remain open-minded even if their client confesses to them. There’s always the possibility that they are under duress, or are trying to protect someone, or are just confused.
Of course a confession shouldn’t be ignored, and puts a defence lawyer in an awkward position.

An innocent person confessing to their lawyer though is probably not very common.
However, many of the examples people have given in this thread – where the defendant just says something that implies guilt to their lawyer, or changes their story several times – I would think would be much more common, as innocent people can get scared and misremember just like anyone else.

[Northern_Piper]

@Melbourne

A conviction like that is the result of a legal process. Asking “who convicted him” is a nonsense question.

No, I’m asking a factual question, trying to understand your anecdote. Was it a trial before judge alone, or judge or jury?

[Kobal2]

@Spoons

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.

Why do you call it a “fiction”?

Is your contention that whether or not the defendant factually did whatever the prosecution alleges they did is retroactively determined at the point in time the jury/judge make their final decision on the case ?
Unless it’s Schrödinger being tried, I mean. Then all bets are off.

[Northern_Piper]

Whether the individual factually did what the prosecutor alleges is not the end of the inquiry. A finding of guilt is a legal finding, based on the application of the law to the facts. There can be a situation where the accused concedes he did what the prosecutor alleges, but that it does not support a finding of guilt, as a matter of the law applied to those facts.

[Kobal2]

@Northern_Piper

Whether the individual factually did what the prosecutor alleges is not the end of the inquiry. A finding of guilt is a legal finding, based on the application of the law to the facts. There can be a situation where the accused concedes he did what the prosecutor alleges, but that it does not support a finding of guilt, as a matter of the law applied to those facts.

I admit to being a bit confused here. Are we talking of a situation along the lines of “yes I did shoot him but it wasn’t murder, I was defending myself”, or something entirely different ?

[Really_Not_All_That_Bright]

Possibly. But there is more to it than affirmative defenses. A jury could make a factual finding that Steve shot John and that no affirmative defense applies, and still find him not guilty.

[Bricker]

@Kobal2

I admit to being a bit confused here. Are we talking of a situation along the lines of “yes I did shoot him but it wasn’t murder, I was defending myself”, or something entirely different ?

“Yes, I admit that I, Steve, held the gun, aimed it at John, and pulled the trigger, and John was shot and killed. But my action wasn’t a crime. We were shooting a movie, and the scene called for me to aim the gun at him and fire. The prop master incorrectly loaded the gun. It had blanks, but a bullet from a previous load stuck in the barrel, and when the blank fired, the stuck bullet was discharged. It was a complete accident.”

[Kobal2]

OK, I think I got it now.

[Quercus]

@Bricker

“Yes, I admit that I, Steve, held the gun, aimed it at John, and pulled the trigger, and John was shot and killed. But my action wasn’t a crime. We were shooting a movie, and the scene called for me to aim the gun at him and fire. The prop master incorrectly loaded the gun. It had blanks, but a bullet from a previous load stuck in the barrel, and when the blank fired, the stuck bullet was discharged. It was a complete accident.”

In this case, wouldn’t either the prosecutor have failed to allege an element of the crime of murder (i.e. intention of harm or however the particular statute is worded) or the defendant is disputing that particular allegation of fact?

So the defendant is not conceding all the facts alleged by the prosecutor, in this example?

[Bricker]

@Quercus

In this case, wouldn’t either the prosecutor have failed to allege an element of the crime of murder (i.e. intention of harm or however the particular statute is worded) or the defendant is disputing that particular allegation of fact?

So the defendant is not conceding all the facts alleged by the prosecutor, in this example?

Not necessarily – although I admit that this hypothetical isn’t how things would likely play out in real life.

But ordinarily, the prosecutor alleges intent, and proves intent in a case like this, by relying on the permissible inference that people intend the ordinary consequences of their actions. So if the prosecutor shows that Steve pointed a gun at John and pulled the trigger, that’s enough for the jury conclude that Steve intended to shoot John; people can be presumed to intend the ordinary results of their actions. Intent is almost always shown that way; seldom does a murderer announce loudly, “I intend to kill you with the following action.”

So the prosecutor doesn’t mention the movie – legally, he doesn’t need to. (Practically, of course, he knows the accused is going to say that movie prop mixup is what’s to blame, so practically speaking, his case-in-chief will address disproving that story).

[Really_Not_All_That_Bright]

The latter. See Northern Piper’s post that started this small tangent.

Whether the individual factually did what the prosecutor alleges is not the end of the inquiry. A finding of guilt is a legal finding, based on the application of the law to the facts. There can be a situation where the accused concedes he did what the prosecutor alleges, but that it does not support a finding of guilt, as a matter of the law applied to those facts.

ETA: that was a response to Quercus.

[Danger_Man]

I was watching American Crime Story today and there is lawyer flat out asks OJ if he did it. Is it known if that actually happened?

[Shodan]

@Danger_Man

I was watching American Crime Story today and there is lawyer flat out asks OJ if he did it. Is it known if that actually happened?

What were the circumstances under which it was supposed to have happened? I can’t imagine the defense team would ask him that - they don’t want to know. And I don’t see why the prosecution would ask. My extensive legal training (read: I watched Law and Order, Perry Mason, and To Kill A Mockingbird) tells me that you never ask a hostile witness a question unless you know, and can compel, the answer.

What was the point of the question? The prosecution asks OJ “did you do it”, he says “No”. How can they force him to say “Yes”? I would think they would be more likely to ask questions to show contradictions in his testimony, and to highlight the evidence against him.

Regards,
Shodan

[Boyo_Jim]

No defense lawyer knows their client is guilty before a trial, because their client is not guilty until convicted of the charges. They may or may not the their client acted as the prosecution claims they acted, but their client is still not guilty as the legal system defines it.

[Muffin]

@Danger_Man

I was watching American Crime Story today and there is lawyer flat out asks OJ if he did it. Is it known if that actually happened?

A lawyer is not permitted to knowingly mislead the court, so it behooves a defense lawyer to not ask their client if the client did the deed, for that would limit what the lawyer could present at court.

[md2000]

@Muffin

A lawyer is not permitted to knowingly mislead the court, so it behooves a defense lawyer to not ask their client if the client did the deed, for that would limit what the lawyer could present at court.

IANAL, but I assume what this means is the lawyer cannot say things that contradict what he knows to be the truth.

Does this mean he can say “how definite is it that the DNA is my client’s?” but cannot say something misleading like “is it possible that the DNA is from one of the crime scene investigators?” He can say “how could you possibly identify my client as the perp, it was pitch dark and you were 200 feet away?” but I assume he cannot say “could it have been Joe instead”? I assume the quality of his leading questions are limited if he explicitly suggests an untruth? Obviously during the summary he cannot say “it is also entirely possible some unknown assailant did it…” if he knows this not to be the case. Obviously he cannot parrot an alibi he knows to be untrue, and he cannot (if his client is stupid enough to demand to take the stand) as questions that elicit a perjury.

As a good example of the defence, look up the travails of Paul Bernardo’s lawyer. His first lawyer retrieved the tapes of the torture and murder and dismemberment of two teenage girls. They were hidden in the house and after the police tore the house apart, he went in and got them in five minutes. He held on to the tapes for several months without watching them per his client’s instructions (although he had a good idea what was on them.) He later had someone else watch them and not tell him what was on them, and then he felt obliged (after consulting a lawyer himself) to turn them over to the prosecution.

Bernardo was trying to claim that his wife, Karla Homolka, was the murderer not him. The tapes would have been his Perry Mason moment after she testified how she was coerced to help with the murders. She had meanwhile played the “battered wife” card and made a deal - the tapes showed she was far more complicit than she claimed and had even “failed to mention” another drugged rape in violation of her agreement. For revenge on proof of their incompetence, the prosecutors charged the lawyer but eventually lost that case.

She’s been out of jail for almost a decade, happily(?) married with two kids now, he’ll be in jail for life.

[Flyer]

@Tom_Tildrum

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.

This is a very surprising thread for me. I thought that all lawyers operated this way, but evidently not.

@Muffin

In the criminal context, knowing everything can hinder a defence attorney.

Two scenarios:

1. Client does not tell his lawyer that he did it. At trial, the client testifies that he did not do it.

2. Client tells his lawyer that he did it, including all the gory details. At trial, the client testifies that he did not do it, and denies all the details the prosecutor puts to him.

#1 is OK for the lawyer, whereas #2 is very problematic for the lawyer when trying to balance the lawyer’s duty to the client against the lawyer’s duty to the court. The lawyer may not rely on the perjured testimony in submissions, and (depending on the jurisdiction) the lawyer may have to withdrawal from representing the client. (In my jurisdiction, Kanukistan, withdrawal would be required unless the lawyer could forthwith get the client to admit to the lie to the court.) A criminal lawyer must take care to limit what the client tells him so as to not restrict what the client can tell the court.

@Spoons

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.

This is exactly opposite to everything I have ever seen or heard on the subject before now.

It was my understanding that a defense lawyer always wants to know everything, including whether his client is guilty. The theory is that otherwise, he runs the risk of being blindsided by something that the prosecution finds, and thus has little or no chance to prepare an adequate defense. I have read from several different sources, “Never ask a question in court that you don’t know the answer to.” It was my understanding that a lawyer whose client lies to him, or conceals part of the truth, has an excellent chance of being unpleasantly surprised at some point before the trial is over.

But you people are saying that a defense attorney is actually better off not knowing the whole story. I suppose I will have to bow to your expertise, but I still find that very difficult to believe.

[magnusblitz]

Yeah, the problem with the idea that the lawyer should “limit what his client tells him” is that doing so means the lawyer isn’t getting the full story and facts. I’d much rather my client tell me everything, including whether or not they did it, so I can then advise and construct the case accordingly. Unsurprisingly, that advice will often be “take the plea” but every case is different in terms of whether there’s a good offer, how much evidence the prosecution has, etc.

If the client makes it clear he intends to testify and commit perjury (or takes the stand and starts doing so) then there’s really three options for the attorney:

1. ask to withdraw,
2. allow the client to testify in a narrative, and ignore client’s testimony in your arguments;
3. continue on and present your client’s testimony as the truth.

Each one has it’s problem. For #1, the request to withdraw may not be granted (especially in cases where the attorney has been appointed), and in any event it’s just kicking the can down the road for the next attorney to deal with. #2 satisfies both the client (who gets to testify) and the lawyer (who isn’t using perjured evidence) but can ‘give away’ the case in that people may realize what’s going on when the lawyer doesn’t ask the questions or refer to the testimony in closing. #3 is probably the best in terms of providing for a zealous defense, but is of arguable legality and may result in getting in trouble with the Bar.

Basically, the way the rules are now, the lawyer can be put in somewhat of a tough position. There probably needs to be some reworking to decide if the lawyer has a higher duty to their client or the truth for matters like these.

[Muffin]

ABA Model Rules of Professional Conduct

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal.html

Advocate
Rule 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/comment_on_rule_3_3.html

Comment on Rule 3.3
Advocate
Rule 3.3 Candor Toward The Tribunal - Comment
[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See Rule 1.0(m) for the definition of “tribunal.” It also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such as a deposition. Thus, for example, paragraph (a)(3) requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false.

[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

Representations by a Lawyer

[3] An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client’s behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the Comment to that Rule. See also the Comment to Rule 8.4(b).

Legal Argument

[4] Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

Offering Evidence

[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client’s wishes. This duty is premised on the lawyer’s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity.

[6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.

[7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. In some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements. See also Comment [9].

[8] The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.

[9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer’s ability to discriminate in the quality of evidence and thus impair the lawyer’s effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify. See also Comment [7].

Remedial Measures

[10] Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer’s client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer’s direct examination or in response to cross-examination by the opposing lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done — making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing.

[11] The disclosure of a client’s false testimony can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 1.2(d). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer’s advice to reveal the false evidence and insist that the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court.

Preserving Integrity of Adjudicative Process

[12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer’s client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding.

Duration of Obligation

[13] A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

Ex Parte Proceedings

[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.

Withdrawal

[15] Normally, a lawyer’s compliance with the duty of candor imposed by this Rule does not require that the lawyer withdraw from the representation of a client whose interests will be or have been adversely affected by the lawyer’s disclosure. The lawyer may, however, be required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the lawyer’s compliance with this Rule’s duty of candor results in such an extreme deterioration of the client-lawyer relationship that the lawyer can no longer competently represent the client. Also see Rule 1.16(b) for the circumstances in which a lawyer will be permitted to seek a tribunal’s permission to withdraw. In connection with a request for permission to withdraw that is premised on a client’s misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by Rule 1.6.

Lawyers from several countries, including the USA weigh in: How often do lawyers lie to judges? - Factual Questions - Straight Dope Message Board

[magnusblitz]

@Muffin

ABA Model Rules of Professional Conduct

FWIW, I should’ve made it clear that I’m in California, which is the only state that hasn’t adopted the ABA Model Rules (I know some states have only partially, not sure where the rules we’re talking about fall on a state-by-state basis). While California still contains a rule that lawyers need to be truthful to the court (Rule 5-200), unlike the ABA Model Rules, that rule does NOT trump the duty of confidentiality. So different answers for different jurisdictions, what fun.

From a California MCLE on the subject:

The CRPC do not provide express guidance on how to handle this situation. While CRPC 5-200 places upon the lawyer the duty to not offer false evidence, the California rule does not create a duty to disclose to the tribunal testimony that the lawyer knows is perjurious. California case authority makes it clear that a lawyer is required to reconcile the duty of confidentiality to a client with a lawyer’s duty of candor to the court (People v. Guzman, 45 Cal.3d 915, 945 (1988); People v. Johnson, 62 Cal.App.4th 608, 627 (1998).) Neither duty takes precedence over the other.

For civil suits, they recommend first speaking with your client and letting him know that he needs to tell the truth, and try to rectify it with new testimony. If not, then try to withdraw, and if the court doesn’t let you, proceed without using the perjured testimony. At no point can you disclose that the testimony was perjured.

As for a criminal case, they recommend what I called option #2, which is let your client testify in a narrative and ignore client’s testimony in closing arguments. I still think this is a dead giveaway, both to an educated jury and the judge, but I suppose you can say client deserves it by lying.