I’m sure someone will be along to correct me if I’m wrong or at the very least Bricker will be in clamoring for my finger, but are not some defenses in criminal cases “affirmative” defenses, meaning that the defense has to prove some elements? For example, if a murder defendant pleads self-defense, I believe s/he needs to prove that s/he reasonably believed his/her life or safety was in danger. This isn’t the same as proving that one is innocent but it is a shifting of the burden of proof.
I think your finger is safe, Otto, although things aren’t quite as you say.
It’s true that some affirmative defenses require the defense to prove something. But this doesn’t “shift” the prosecution’s burden; the prosecution must still prove all the elements of the crime beyond a reasonable doubt. An affirmative defense does not disprove an element of the prosecution’s case – it instead offers additional facts which, if also proved, vitiate or negate criminal responsibility for the act. Since the defense is the side offering those additional facts, it falls to that side to prove them.
- Rick
Thanks, Jodi, I appreciate the corrections. However, I did a poor job of defining the two comments regarding which you said that (2) was a subset of (1). It was my intent to distinguish between facts and law by them – (1) being that the prosecution had failed to establish the set of facts that would constitute the breach of the law charged, and (2) was that, the facts being conceded, the defendant’s acts were not a violation of the law in the sense charged because of reason X. On seeing your comments, I realize I did a poor job of saying that.
In cases where the attorney DOES know of his client’s guilt, does he/she just:
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Not put the defendant on the stand.
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Invoke attorney/client priviledges for themselves, aside from current life in danger situations.
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Try and show the jury reasonable doubt, by trying to show what COULD HAVE happened?
Maybe I have seen too many movies, but I would just tell my attorney everything so he/she wouldnt get sandbagged with some facts he/she didnt know.
Especially if I was guilty. 
Gosh, there must be alot of fraud going on out there. (Just a light hearted joke)
OMAR –
This is not entirely up to the attorney. The defendant has the right in the U.S. to testify on his/her own behalf, and if he/she insists upon it, the attorney cannot prevent it. What you can do is have a “come to Jesus” talk with your client, in which you explain to them in no uncertain terms that if they perjure themselves, you’re outta there.
“Attorney-client privilege” refers to keeping the confidences of your client, and prevents those confidences from being extracted. So the fact that you know Client is guilty is not something you can be compelled to divulge. But ATC is for the client’s benefit, and though the attorney may invoke it, he or she cannot waive it. And it can’t be invoked “for themselves” (meaning for the lawyer). So your knowledge of the true state of Client’s guilt is almost certainly covered by ATC, but that really doesn’t help you.
Yes, if you know Client is guilty then you cannot say otherwise, but you can certainly still try to prove reasonable doubt as to his/her guilt – in fact, at this point, that’s all you can do. But as I said, that’s probably what you’d be doing anyway, even if you didn’t know Client was guilty.
This is the wisest course, because in the event the attorney is “sandbagged” by some fact he or she didn’t know, and the case goes in the crapper because of it, it isn’t the attorney who’s going to prison.
Well, not by the lawyers. IME criminal defense lawyers take their ethical duties very seriously. There are exceptions of course, but there are bad practitioners in every profession. The criminal defendants, OTOH – well, in my limited experience (I did a defense clinical as part of my practicum in law school) they lie their heads off, to everyone, including their lawyers. Again, there are exceptions, of course, but that was my experience.
From my experience discussing this issue in real life, I think the analysis gets a bit bogged down by using terms like “the lawyer knows his client’s guilty”. That’s a legal assessement, left to the jury or judge.
I’ve always found this issue easier to approach by the twin principles that a lawyer cannot lead evidence that he/she knows is not correct, but is always entitled to test the Crown’s case.
To illustrate, let’s suppose I’m defending a client who’s charged with killing someone in a small room. The Crown has one eye-witness who’s going to testify that he saw my client leave the room.
If my client assures me he wasn’t there, and brings up an alibi in support, and I’ve got no reason to disbelieve him, then regardless of how strong the Crown’s case may be, I’m entitled to lead the alibi.
But suppose the client’s story is different. He’s told me that he was in the room, but didn’t kill the deceased. Even if he doesn’t testify, I can’t do anything that suggests to the Court that my client denies he was there. But, it’s still open to me to see if the Crown’s identification can be shaken in any way. I can cross-examine the eye-witness to find out things like:[ul][li]how good is his eye-sight? does he need to wear glasses? if so, was he wearing the glasses at the time?[/li][li]what were the light conditions? dark? bright?[/li][li]how far away was he when he say the fellow leave the room? 5 feet? 20 yards? was he looking directly at the door, or did he just see the fellow leave out of the corner of his eye?[/li][li]how long a time did he have to observe the fellow leave the room? 5 seconds? a minute?[/li][li]how did the police do the line-up? was it a photo line-up or in person? did the police observe the normal standards, or did they in some way suggest that the witness should pick my client?[/li][li]does the witness have any personal interest in the proceedings? was he just a passer-by, or did he have any personal dealings with the deceased (e.g. - he doesn’t happen to owe a large amount of money to the deceased, does he?)[/ul]All of these are questions that probe whether this witness should be believed and whether he truly was in a position to identify the person leaving the room as my client. And, properly put, none of them amount to a positive statement that my client was not there. Rather, I’m testing the strength of the Crown’s case. [/li]
If the witness collapses on the stand, says that he needs glasses but wasn’t wearing them, it was pitch-dark, and he only saw the guy leaving the room for a couple of seconds out of the corner of his eye, then the Crown’s case suddenly looks very weak and a conviction unsafe. And far from undermining the justice system, blah, blah blah, I’m doing my duty to my client and to the public to ensure that the Crown is doing its job. I’m making sure that a citizen isn’t convicted except on the constitutionally mandated standard of the Crown proving all elements of the charge beyond a reasonable doubt.
As is frequently the case, the Great Cham, Dr. Johnson, expressed himself on this point:
This is one area where the Canadian and American jurisprudence differs. In our law, an accused need only raise a reasonable doubt about a defence, and the Crown must then disprove it beyond a reasonable doubt. The Supreme Court has held that the principle of innocent until proven guilty does not just mean that the Crown must prove its case beyond a reasonable doubt. It means that an accused is not to be convicted when a reasonable doubt exists about his/her guilt. If the accused were required to prove a defence, and failed to do so, then the Court could have a reasonable doubt about the accused’s overall guilt, and yet be required to convict. See R. v. Whyte.