But as Cap and Drum have pointed out, one does have an “unlimited” right to make the State prove its case. It’s right there in the 14th Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).
–Cliffy
So, is it ethical for an att’y to ask the client, “I suspect you did the crime but think the police and DA have not put together a good case. However, to construct the best case, then I want you to tell me the details of how you did the crime so I can better refute the DA’s theories and evidence. Knowing you did the crime will prevent me from allowing you to testify, although either way it’s better if you didn’t…”
Is it common? Or do lawyers not want to hear anything about a person’s guilt?
It would be one thing if the defense lawyer made sure that the defendent weren’t forced into a confession, that the evidence presented were true, that his client wasn’t railroaded into a harsher sentence than he deserved, etc, etc.
But, in fact, the defense lawyer is going to go on the attack. They’ll:
[ul]
[li]attack the evidence, which they know to be accurate, to get it excluded (if even on a technicality) so that the jury won’t even hear the information[/li][li]attack the police and the investigators, whom they know perfectly well to have done a competent job[/li][li]attack the victim, or in this case the victim’s reputation, to set up the “some people just deserve to be killed” sentiment with the jury, even though the victim had done nothing wrong.[/li][li]attack the victim’s family and any witnesses and experts put up by the prosecution, again without real regard as to whether the attack is justified.[/li][/ul]
… and all because they need to put up a “vigorous defense” that looks the same as if their client really were innocent and being prosecuted by a corrupt government that’s out to get them.
To extrapolate all of this from the constitutional guarantee of “due process” seems to me like an adolescent thought exercise gone amok - you can only keep it up as long as you only build up the logic in your head and never step back to look at what the results are doing to people in real life.
I’m not a lawyer of any kind, but I do think that the advocacy system tends to do a good job in practice, and when it doesn’t, the problem is more likely in the details than the spirit of it. A lot of your bullet points I would like to attempt to counter:
The legal precedents on which evidence can be exluded may be ‘technical’, but they aren’t, I think, trivial: they’re based on intuitive concepts of fairness that most of us would agree with. If evidence is excluded… it may be ‘accurate’ but if it was seized without a warrant say, then I think it’s better that it not be available at trial. Guards against the police force going too far… and it might be a lot harder to say if illegally seized evidence was genuine or planted.
How exactly would the defense attorney ‘know perfectly well’ that the investigators have done a competent job? The job of the defense is to give it a trial by fire, and also to ask questions about details that might tend to reflect favorably on the defense case - details that the prosecution wouldn’t want mentioned.
I think I’m going to break off at this point, because some of the other details you mentioned are more controversial. I hope that I didn’t paint myself as incredibly naive, and that I made some sense. Obviously, no legal system is perfect, and ‘eternal vigilance’ is the watchword. But giving a defendant access to an advocate who knows the way the criminal justice system works and how best to fight for defendent rights is, I would think, better than the alternative.
This is a pretty common perspective from people outside the “system,” those who do not spend their time considering the larger issues of justice, constitutionality, and due process. If one gathers one’s information from the mass media (with their generally garbled “explanations” of what happened in court), and one has not considered what “justice” actually entails, it is quite easy to fall into this mindset.
This is the mindset that says, if he did it, he can go hang. And it doesn’t consider the strains on a society whose government grows fat and complacent when it isn’t challenged.
For me, I would much rather live in a society where I am guaranteed a vigorous defense, whether my lawyer believes I am innocent or guilty, than I would live in charizard’s world, where a purportedly guilty person (regardless of whether he is actually guilty of the crime, or whether he has been coerced into confessing, or has failed to meet all the elements, etc.) gets no defense at all.
And “what the results are doing to people in real life”? I believe we call that “protecting their rights.”
On preview, chrisk, you’re not naive at all.