Does the lawyer usually know if their client is guilty?

[UltraVires]

@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.

I am a criminal defense attorney and not only do I agree with this, but am shocked at the previous answers. In order to help my client, I need a complete picture of what happened.

If the client is really, for real, innocent of the crime, I need to know that so I can find evidence which will corroborate his story. If he says that he was at a sports bar when it happened, I need to go to the sports bar and preserve the surveillance video. How do you guys that never ask innocence or guilt handle that? If he is really for real innocent, then there is a hole in the prosecution’s case that the truth can exploit.

Conversely, I can now better focus my efforts. If the guy is guilty, then any further investigation of the facts will only confirm this true fact, and the time and money spent will not be of any help. If anything, I will only find evidence which confirms his guilt.

Now sometimes the client will lie to me and say he is innocent when he is not. I can usually figure out he is lying rather quickly. Better to do it now in my office, or in the conference room of the regional jail, than in the middle of trial when he is being ripped apart on cross examination. A good chance to ball out the client for wasting my resources that could have been directed in other ways that could actually help him.

Even if I know he is guilty, it doesn’t prevent me from attacking the processes of the investigation. “Officer, from the information you have, you can’t exclude Mr. X, Y, or Z from having committed the crime, can you?”

If I have a situation where a defendant is guilty but tells me he wants to lie on the stand, I will follow the ethical rules, but I’ll start by trying to convince the defendant that such a strategy is foolhardy and will lead him to the penitentiary. I’ll tell him how the prosecutor makes a living exposing lies from defendants. Even ones that think they are good liars. I’ll tell them, correctly, that knowing what I know, I could not bullshit the prosecutor on the stand without being twisted into knots.

I’ll give my clients a lot of leeway and listen to their concerns, but if they continue to insist on a poor course of action, I will have the “come to Jesus” talk with them. I tell them that they are screwing up terribly, and if they don’t trust my advice, then I will resign. I’ll tell them I can’t help them if I am fighting the state and fighting them at the same time. I give them the speech how we can go fight “the good fight” but we will lose and I don’t mind doing that, but when you get taken away to start your 15 to life sentence, I go home to my family. I tell them that when I do that, I will have one beer for them and then I go on with my life. Then I tell them to think hard about it now so they aren’t thinking about it every day for the next 15 years.

It’s worked so far, and I have had to resign a couple of times. I read in the paper how their next attorney took it to trial and the guy got convicted.

TLDR version: I very much need to know my client’s story. He is a crucial witness that has relevant facts.

[Martini_Enfield]

@jezzaOZ

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.

I studied law here in Australia for many years (but am not a lawyer) and this was basically what we were told at uni when someone (including me) inevitably asked the “So how do we defend someone who we actually know is guilty?” question.

As JezzaOZ says, you can make the prosecution prove their case and attack anything that doesn’t support their assertions (“So, you say my client was at the Wallaby Creek Hotel at that time, but you have not produced any eyewitness testimony or CCTV footage to that effect…”) but you can’t stand up and say “M’lud, my client is innocent and the accusations from the prosecution are vile and odious lies.”

We were also told that it if a defence client looked like they were about to confess to us as their lawyer, we might be well advised to employ a professional version of “Hey look, a big shiny change of subject!”

Basically, a lawyer’s first duty above everything else is to the court - and that includes not concealing things like “My client has admitted to this heinous crime, but L-dawg gots to get paid, yo, so I’m going to overlook that minor technical issue and instead tell the court that the butler did it.”

[md2000]

@Martini_Enfield

…

Basically, a lawyer’s first duty above everything else is to the court - and that includes not concealing things like “My client has admitted to this heinous crime, but L-dawg gots to get paid, yo, so I’m going to overlook that minor technical issue and instead tell the court that the butler did it.”

Other than telling the court the butler did it, isn’t that the very definition of attorney-client privilege that you CANNOT tell the court what your client told you?

Obviously, you cannot assert lies, but you can ask - “Is there any proof the butler didn’t do it, or the maid?”

[RivkahChaya]

My cousin who is a prosecutor, and doesn’t like defense attorneys, but considers them a necessary evil, explained it to by saying that it’s always possible his (the prosecutor’s) office has charged the guy with the wrong crime-- they charged someone with second degree murder who should have been charged with criminally negligent homicide. In that case, the defense lawyer can know that his client did the act he is accused of doing, but still innocent of the crime he is charged with, if that makes sense.

Now, Alex doesn’t think that happens much, although he admits it does slip through once in a while, when the original charge was designed to force a plea bargain, and the defendant resolutely refused, so they went to trial with the original charges still in place.

But a lawyer can admit that yes, indeedy, his client ran the victim over with his tractor, BUT NOT ON PURPOSE, as the prosecution is claiming, in spite of the neighbors’ long-standing feud, and might even show evidence of a mechanical failure with the brakes or the throttle release.

[md2000]

@RivkahChaya

…
But a lawyer can admit that yes, indeedy, his client ran the victim over with his tractor, BUT NOT ON PURPOSE, as the prosecution is claiming, in spite of the neighbors’ long-standing feud, and might even show evidence of a mechanical failure with the brakes or the throttle release.

And it’s possible the neighbour jumped in front of the tractor just to be a dick, not realizing that the tractor had faulty brakes. But try proving that in court…

[Shodan]

Am I reading this right - the defense has to turn over evidence to the prosecution that the prosecution doesn’t know about, but tends to show guilt? For some reason I thought it only went the other way.

As in, the client tells his attorney “I didn’t shoot the guy, but I hid my gun under a trash can on Elm Street because I was afraid they would frame me.” Does the defense attorney have an obligation to go and check under the trash can? Or is it just that, before trial, the defense has to say “my client says he hid a gun under a trash can on Elm Street” even if the prosecution finds the gun and they can match the bullet to it?

It seems that somehow or other that would be forcing someone to testify against himself.

Regards,
Shodan

[Northern_Piper]

What part of the discussion are you referring to, Shodan?

In the Canadian system, there is no general obligation on the defence to disclose, for the reason you give. There are a few exceptions to that: alibi is one, expert witnesses are another, but generally, no duty to disclose.

Not meant as legal advice, of course, but just to contribute to a discussion on a matter of public interest.

[Noel_Prosequi]

Some difficult issues here. First is the epistemological question of what it means to “know” someone is guilty. In the absence of a confession from the accused direct to the lawyer, any lawyer will have their own view about the strength of the evidence, and may on many occasions advise a client to consider pleading guilty on the strength of it. But that is not the same thing as “knowledge”, it’s merely a professional judgment.

You only “know” if your client tells you, and that leads to the ethical problems for the lawyer others have discussed. Parenthetically, I think the schism that has opened about whether you ask a client what occurred is more apparent than real. Of course you need the client’s version in some fashion or you could not conduct the case. But that doesn’t mean you sit him down in a chair and say “Tell me all about it.” You ask guided professional questions that address each of the pieces of evidence. “Mrs Jones says she saw you at the scene. Do you know Mrs Jones? Do you want to say anything about the accuracy of that claim?” The last question will invite a claim of alibi if there is one. “Police say they found blood at the scene, and say they have a DNA match to you. Can you remember any other way the blood, if it is your blood, might have got there?” The answer yes will take the lawyer down a path where the presence of the blood might be explained without having to challenge the DNA evidence, which is hard work for little result. The answer no simply means that you might have to challenge the DNA evidence. And so on.

An assumption that underlies the OP is that cases tend to be about whether an accused “did it” or not. There are some cases like that. Intrafamilial child molestation cases tend to be of that sort. But very many other cases involve tests that not even the accused can answer. Issues like self-defence, provocation, mistake, accident, etc, often have as elements consideration of what is reasonable in the circumstances, or of what an ordinary person would do, or of what is proportionate. These are “facts” of a different order from mere questions about whether it is historically true that D shot V. The facts I am discussing here are normative judgements, about which the question of “knowledge” of their presence prior to verdict means no more than an educated guess.

In my experience, most murder trials, for example, are not “whodunnits”, despite the impression TV shows give. Most do not challenge the question of identity. Rather, they run provocation or self-defence or the like. In such cases, the notion of a lawyer’s “knowledge” of guilt misses the point. There is, of course, a spectrum of likelihood of any such claim in any specific case, but the question of a priori “knowability” just doesn’t arise.

[Quercus]

@Shodan

Am I reading this right - the defense has to turn over evidence to the prosecution that the prosecution doesn’t know about, but tends to show guilt? For some reason I thought it only went the other way.

As in, the client tells his attorney “I didn’t shoot the guy, but I hid my gun under a trash can on Elm Street because I was afraid they would frame me.” Does the defense attorney have an obligation to go and check under the trash can? Or is it just that, before trial, the defense has to say “my client says he hid a gun under a trash can on Elm Street” even if the prosecution finds the gun and they can match the bullet to it?

It seems that somehow or other that would be forcing someone to testify against himself.

Regards,
Shodan

In most jurisdictions, I don’t believe the attorney has an obligation to disclose what the client said, and in fact cannot legally reveal it [I’m less sure about what the attorney’s obligations would be if the client physically handed over the gun.]

But the attorney does have an obligation not to let her client falsely testify that he never had a gun, though, as noted there’s not always a bright line about what to do if the client does that. In this situation, actively lying is much different than keeping quiet about possibly relevant information.

I assume in this situation a good defense attorney (at least, if they’re taking the ‘I don’t want to know’ route) would ask the client something along the lines of ‘if we recovered the gun and let the police try and match the bullets, do you think that would help our case?’

[Shodan]

@Northern_Piper

What part of the discussion are you referring to, Shodan?

I was talking about this quote from the model rules that Muffin posted -

(a) A lawyer shall not knowingly:

…

(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

I don’t speak [del]jive[/del] legalese - what does this mean?

Regards,
Shodan

[Tom_Tildrum]

That’s describing an obligation to disclose prior case law from a higher court in the jurisdiction that governs some legal issue in the case. It does not impose any obligation to disclose facts relating to the current case.

[Velocity]

@Shodan

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?”

:smack::D:D:D:D:D:smack:

[Shodan]

@Tom_Tildrum

That’s describing an obligation to disclose prior case law from a higher court in the jurisdiction that governs some legal issue in the case. It does not impose any obligation to disclose facts relating to the current case.

Thanks.

Regards,
Shodan

[Leo_Bloom]

@Noel_Prosequi

Some difficult issues here. First is the epistemological question of what it means to “know” someone is guilty. In the absence of a confession from the accused direct to the lawyer, any lawyer will have their own view about the strength of the evidence, and may on many occasions advise a client to consider pleading guilty on the strength of it. But that is not the same thing as “knowledge”, it’s merely a professional judgment.

You only “know” if your client tells you, and that leads to the ethical problems for the lawyer others have discussed. Parenthetically, I think the schism that has opened about whether you ask a client what occurred is more apparent than real. Of course you need the client’s version in some fashion or you could not conduct the case. But that doesn’t mean you sit him down in a chair and say “Tell me all about it.” You ask guided professional questions that address each of the pieces of evidence. “Mrs Jones says she saw you at the scene. Do you know Mrs Jones? Do you want to say anything about the accuracy of that claim?” The last question will invite a claim of alibi if there is one. “Police say they found blood at the scene, and say they have a DNA match to you. Can you remember any other way the blood, if it is your blood, might have got there?” The answer yes will take the lawyer down a path where the presence of the blood might be explained without having to challenge the DNA evidence, which is hard work for little result. The answer no simply means that you might have to challenge the DNA evidence. And so on.

An assumption that underlies the OP is that cases tend to be about whether an accused “did it” or not. There are some cases like that. Intrafamilial child molestation cases tend to be of that sort. But very many other cases involve tests that not even the accused can answer. Issues like self-defence, provocation, mistake, accident, etc, often have as elements consideration of what is reasonable in the circumstances, or of what an ordinary person would do, or of what is proportionate. These are “facts” of a different order from mere questions about whether it is historically true that D shot V. The facts I am discussing here are normative judgements, about which the question of “knowledge” of their presence prior to verdict means no more than an educated guess.

In my experience, most murder trials, for example, are not “whodunnits”, despite the impression TV shows give. Most do not challenge the question of identity. Rather, they run provocation or self-defence or the like. In such cases, the notion of a lawyer’s “knowledge” of guilt misses the point. There is, of course, a spectrum of likelihood of any such claim in any specific case, but the question of a priori “knowability” just doesn’t arise.

Excellent post. All three parts.