Law schools don’t teach how to won a case. They teach the law. Students read cases, from which they learn the principles that hold in law: unilateral contracts, the M’Naghten rule, contra proferentum, spousal privilege, and so on. They also teach legal research and procedural skills. But they don’t teach “how to win a case.”
The way I see it–and I am a lawyer–you shouldn’t. Knowing your client is guilty creates a host of ethical problems. Read the code of ethics for lawyers in your jurisdiction–it’s probably available online–and find where it states that is is permissible for a lawyer to lie to a court. You won’t find such a thing; in fact, I’d think you will find a statement that says “A lawyer must never lie to nor mislead a court,” or similar. A lawyer simply cannot present a client as innocent when the lawyer knows the client is guilty: that’s lying to the court, and the lawyer risks being disbarred for doing such a thing.
As for sabotaging the case … I’m curious to know what you mean by “sabotaging the case.”
How do you know the accused is guilty? Were you there when the crime was committed; did you see the accused do it? Or are you following the media; or worse, are you mistaking tough-on-crime op-ed columnists and bloodthirsty bloggers for news reporters? I’d suggest that unless you were there, directly witnessing the act, you don’t know and can only guess.
Of course, you’re aware of what happens when people think they know whether an accused is guilty before due process occurs–you get kangaroo courts with predetermined verdicts, and lynch mobs. You may think that’s an acceptable state of affairs, but what would you think if you were unjustly accused and tried by a kangaroo court that decided you were guilty before the trial got underway?
You’re also forgetting one of the most important tenets of criminal justice in all legal systems derived from English law: the accused is innocent until proven guilty in a court of law. If the prosecution puts together a case that is beyond a reasonable doubt, that proof will obtain. But if the defense can raise a reasonable doubt, then the accused will not be found guilty. You may not like Blackstone’s formulation, and I suppose you don’t have to; but that’s how the system is set up and you have to deal with it.
You might be surprised at how little weight confessions hold. Regardless of whether they are true or not, the circumstances under which they were obtained can invalidate them. No prosecutor would rely on just a confession; other valid evidence is usually needed to support the prosecution’s case.
You might want to read and study a bit of constitutional law. As you are no doubt aware, all accused have rights under the constitution; and part of the job of a defense lawyer is to safeguard those rights within the legal framework of the jurisdiction, and within the ethical boundaries of the profession. Not asking the accused client if he is guilty ensures that the defense lawyer can do his or her job legally and ethically.
People are not automatons, and cases are seldom cut and dried (or there would be plea bargaining and no trial.) If jurors got swayed one way or another because of extraneous information, the probability of a fair and correct result is reduced.
So the state is going to pay because some juror screwed up? That’s a lot different from being responsible by malfeasance by representatives of the state.
It destroys the flow of the trial. Plus, jurors should be listening, not trying to trick the lawyers. As for the second, unemployed people skew towards the less educated - are they a good set to have added influence?
The jury doesn’t have the legal training to judge legal relevance. (They can decide to discard testimony they think is irrelevant, though.)
A board claims John Smith eats babies. There are hundreds of posts. At the end, someone gives great evidence that he doesn’t. Discussion stops. Juror looks at the first hundred posts, and never notices it isn’t true.
I said that questions not involving researched evidence are fine to ask - I doubt that the judge is going to do much with them, but he’s not going to cite anyone for contempt, unless asking violates his ruling.
But you are incredibly naive if you think that a jury full of hardened fundamentalists, who have believe atheists are immoral and in league with the devil, are just going to ignore the knowledge of my atheism. How did that work for race, where membership in a group can’t be hidden? The jury not knowing is far better than the jury somehow trying to ignore something that they hold deeply. And if one researches it they all might, so the person not saying anything isn’t going to help either.
Jurors get asked all the time about their familiarity with a case, and sometimes trials are moved to another venue to get a jury without as much prior knowledge. So this problem is considered.
There are other systems where judges run an investigation. It is certainly not clear that these are better than ours. But even in those untrained citizens don’t get to run wild. Our system is based on the principle that truth is best found by the best arguments of two opposing sides - within certain rules.
I care more about the process. In any system there will be false positives (unjust convictions) and false negatives (unjust acquittals.) Our system tries to reduce false positives, because the power of the state is so great when compared with the power of an average defendant. If I ever got arrested, that’s the way I want it, don’t you?
That’s why the police often hold back data about the crime and crime scene. If a person confessing knows the withheld data, there is more chance of him being true. Lawyers (who haven’t even been appointed yet) don’t have this. The evidence does get released before the trial, of course.
Sorry. I probably spoke too quickly in saying that students are taught to “win”. I have a lawyer friend who told me that’s exactly how they do things. I guess I should clarify that I believe the focus of law-related ethics classes focus too much on things like doing your job as a lawyer instead of your job as a human being. There’s probably a lot of time focused on things like confidentiality, reason to recuse or not recuse yourself from a case, what can and cannot be said during a trial, etc. IMHO all of that should be secondary to finding out, once you are part of a case, what really happened instead of defending your client or prosecuting the defendant. But I’ll talk to her more to get specifics
That’s just the thing: it shouldn’t create any ethical problems. I’m glad it’s not permissable for a lawyer to lie in court. I’m not glad that a lawyer can’t ask if his defendant is guilty, then tell the court he is once he finds that information.
I mentioned sabotaging before somewhere, it’s a question that has come up. What I would like is for a lawyer who knows his client is guilty to not provide the best possible defense for him. Screw up purposefully, basically. Say things that the jury would consider damning to the defendant. Accidently mention things that show guilt. Not tell his client that other avenues of defense are available to him. Try to get the worse possible deal in a plea bargain. Advise the client that the case is unwinnable even if it is to force him into pleading guilty. Or hell, just tell the prosecution where the guy hid the gun if that’s the only thing that could tie him to the murder and no one thus far has been able to find it
In the example I always use, you’re the lawyer and you happened to witness the crime. The defendant doesn’t know that and ends up hiring you. A lawyer I’ve talked to told me that in that case, he would recuse himself from the case and become a witness for the prosecution.
To me, that’s not good enough. Another defense lawyer can still win the case for the guilty man.
I would stay on as the man’s lawyer and try to lose the case.
I think most people think that it would turn the legal system into some kind of free-for-all with every lawyer seeing himself as judge and jury. I don’t think that would come to pass. As things stand now, no matter what information a lawyer learns while on a case, they have to either fight for the defense or the prosecution. We are instituting forced guilt or innocence. By definition, in most cases, one side is going to be wrong, but still has to pretend like they’re right. That’s not justice.
Taking the OJ case as an example again, suppose Cochran, while investigating various aspects of the case, came upon indisputable evidence that OJ was guilty. If he recuses himself or simply makes the evidence available to the prosecution, it’s not a guarantee that OJ would be convicted. The prosecution bungled that case, they could yet bungle hard evidence as well. Or if he recuses himself, one of OJ’s other expensive lawyers could have found some way of suppressing the evidence. What Cochran should do as a human being is to start sabotaging the case from that point on, leaking the evidence to the prosecution and perhaps not try to make the prosecution’s experts look like racists or idiots
This would not create an atmosphere of chaos where lawyers decide men’s fates. Such evidence is hardly present in all cases, and for most cases there would still be a healthy dose of uncertainty. Lawyers can still do their job as they do now: assuming their client is innocent (or guilty, if they’re the prosecution). But when evidence is indisputable, no such waffling can be made. It’s laughable that the Arizona shooter was still being called the “alleged shooter” by newsmedia. Why? Maybe they’re afraid of being sued. In my world, Lougher would not be allowed to plead Innocent (remember, none of this “not guilty” crap in my world). He’s guilty, and the only trial he gets to have is to decide how long the sentence is. And no, I’m not afraid of possible abuses of the system. We’ve had hundreds of years where guilty criminals were basically given the benefit of the doubt. Switching to a more intelligent system where certain small percentages of guilty people are assumed guilty from the start won’t be the end of the world.
Lynch mobs are different from kangaroo courts. Besides, mobs would still be illegal. Just becaus a person is guilty is no reason to toss him into the rabble
Why do people never ask the opposite? What if you are guilty and still acquitted? Does that thought never cross your mind? Do you think it’s simply acceptable collateral losses that we have to live with?
And how did kangaroo courts get into the conversation from giving the jury more information? There are plenty of famous cases were jury selection took a long time because of the concern for fairness. Can we say for certain that all of the information the jurors in the Phil Spector case, or the Robert Blake case, or OJ, or Michael Jackson, knew about was ok, but once the trial got started and they were told to not google outside information, that suddenly the jury was fair? You and others assume more information will automatically create biased jurors. Why? My argument in this topic has always been that jurors will have such information anyways, and among jurors themselves there will be a different level of familiarity with the case or with legal information that may tip the deliberations. Allowing jurors to search for information themselves, and present that information to the court to be examined, lets EVERY juror raise their awareness to that of the most informed juror, thus making for a more fair deliberation.
And just because the laws states jurors can’t google doesn’t mean we don’t get kangaroo courts. Certain types of people and crimes are sensational and hard for jurors to look past. In the case of a kangaroo court, I would make equal time for the opposite case: what if the jurors come in predisposed to the belief that the defendant is innocent, and acquit him? I guarantee you that the defense wants to move the Arizona shooter’s trial away from the epicenter of the shooting at least. He’s guilty, and it would be hard to find people who are predisposed to thinking he’s not, harder still in Arizona. I would feel it’s an equal miscarriage of justice to try and find an unbiased jury for him, because his guilt is obvious and his trial should be short. Finding unbiased jurors would not serve justice in this case at all
In some cases, such as the one for Jared Lee Lougher, guilt is certain. It is not fair or just to assume the same for all cases.
Whoa! The end of that sentence was somehow cut off. Damn these long ass posts
Anyways, as I was trying to say:
"And even if that leads to less people confessing, well, that’s sort of where we’re at now right? With no lawyers asking that question? So either things will stay the same or there will be some small trickle into moving towards the more fair outcome.
I know that you can’t always trust a confession. We all remember John Mark Karr. But it’s a start. No cite, but I would imagine that most confessions are done by people who are actually guilty of the crime, and that only a small number are coerced or false. Maybe I’m wrong, I’m happy to concede that point if the numbers aren’t on my side
But when a guy you’re defending tells you he did it, with no prompt or police intimidating him, I’m willing to call a spade a spade. I would still investigate though, based on that fact that some confessions are false. But none of this “defending him as if he’s innocent” nonsense. It’ll change my defense if the guy I’m defending confessed and I do not doubt that confession. Either way, if he wants to go to jail, it’s less of a moral conundrum than if the guy’s guilty and I get him acquitted
So says the letter of the law. The law has to be written that way in order to encompass all of the people it governs. However, in real life, it allows the defense lawyer to shirk his duties as a human being and claim he was simply following the orders of his profession. It is not moral or ethical, it’s simply an excuse
I’m not a lawyer*. But I’m absolutely sure that what you’re advocating;
Are violations of the various state and American Bar Associations rules of Conduct and Ethics (or is it Ethics and Conduct?) that, at the least would get your license suspended, if not get you disbarred.
Are (very likely) violations of the legal expectations of lawyers as officers of the court that could very well result in criminal charges and prison sentences.
Are violations of the right of a defendant to effective counsel, such that, a conviction in these cases would be overturned in a heartbeat.
But, I’m actually strongly in support of lawyers who agree with YogSosoth’s suggestions acting on them. Because any lawyer that would do such things, shouldn’t be practicing law in the first place.
You might just want to brush up on your Sixth Amendment jurisprudence, here’s some linksto get you started, then you can start on the caselaw that develops from these basics.
CMC fnord!
*But I constantly feel obligated to play one on the Internets since the average persons understanding of the law is so dismal that I’m fucking SCotUS material, and that makes me teh sad.
