Don’t you have to find out if something happens before you find out why something happens?
I gave several examples of how it can happen. 
Furthermore, both you and Jimmy Chitwood have already stated that in such a circumstance you would in fact bersmirch the victim in order to help your client. Unless I’ve misunderstood you.
I did not ask why it happens.
I asked if it was morally right to do something in a certain circumstance.
This is a more important question if in fact this is something that frequently happens, hence my closing remark. But the issue stands on its own.
Consider it a hypothetical, if you must.
No you haven’t. You simply made general statements. Tell us something a lawyer can say to a jury, something credible.
Yes you have. I’m not surprised, though. How on earth is the only example given - seeking to show that a sexual act was consensual, besmirching the victim? Not least because if the sexual act was consensual, there isn’t a victim to besmirch.
I think, more or less, that what you’re asking is whether it’s OK to Swiftboat the victim or a third party. And no, that’s unethical.
If you think we’re fighting the hypothetical or something, it’s because it doesn’t seem like you have a full appreciation of what the dividing line is that we’re using. And though you’ve downplayed it since, hopefully you can understand why “ISTM that this is very common” was always going to affect the responses you got from the people you’re, well, besmirching, by adding that.
The law says that every defendant gets zealous representation. That representation entails presenting (not fabricating and not buying) evidence that is relevant to whether or not the defendant committed a crime beyond a reasonable doubt. It isn’t the defense attorney’s job to decide whether that evidence adds up to reasonable doubt or not; it’s the jury’s. The jury can’t make that decision if they don’t get the evidence. Fotheringay-Phipps, sitting at home, can also make that decision for himself. And he’s free to say, from that vantage point, that the defense attorney’s asking a witness about that time she was fired for suspicion of stealing from her employer was an unethical and frivolous character assassination. And he can say that it doesn’t matter what that lady did, because there’s no way the dude didn’t kill the other dude. But the defense attorney isn’t free to do that, because the jury could dismiss what that witness said, and that could shift the weight of the evidence such that reasonable doubt exists. What’s the alternative? Decide that your client’s probably guilty, and then don’t present any evidence at all because, after all, it’s misleading in the end to put it on, the dude being ultimately probably guilty?
What isn’t clear is whether that kind of “besmirching,” which of course I would do to help my client, is the kind of “besmirching” you’re talking about, or whether you’re even making a distinction between that kind of evidence and the kind that goes “Ma’am, isn’t it true that you fucked a dog?! And a black one at that?”
As I understand it, rape shield laws were put in place because things would go like this:
Jill: Bob raped me!
DA: Let us go to the law. I will prosecute you.
Bob’s lawyer: Bob didn’t rape Jill. Jill’s got a reputation with the men in this town. She’s had sex with Bill, with David, with Leroy–she’ll pretty much screw anything with a dick, ladies and gentlemen of the jury. You know the kind of woman she is, not a fine upstanding woman like your wives and daughters and sisters, but a woman with loose morals. Is it really beyond reasonable doubt that she had sex with Bob, too?
Jury: Woah, dude. Not guilty!
Town: Shun the slut! Shun the slut!
Some other guys: Maybe I’ll get me a piece of Jill.
Is that beyond the pale? There certainly seem to us laypeople to be lawyers who know how to play on the prejudices of the folks in the jury box in order to secure a conviction or acquittal. Maybe they don’t see it as “I’m smart and the jury is dumb,” but I doubt you’ll contest that some attorneys play on irrational emotions during trial in an attempt to secure a verdict they couldn’t secure through reasonable means.
And that seems to be at the heart of this question: if you had an opportunity to secure a verdict through playing on irrational emotions that you couldn’t get through reason, and if the techniques you’d use to do so would cause harm to someone, would you do so?
That seems to me to be an example of “the lady doth protest too much”.
But you’re treating zealous representation for the defendant as an overriding concern, in the face of which no one else’s concerns have any value. I disagree with that.
It would seem that society does as well, in the case of the rape shield laws.
Your example seems to be just a more extreme case, but I don’t see any fundamental difference. (Unless you’re making a distinction between the lawyer making stuff up out of the blue and the lawyer presenting actual evidence - but I’ve been clear that I’m talking about the latter case.)
That’s one example. But there are others - e.g. the case cited by robert_columbia, where the lawyer tries to pin the blame on the little sister whose whereabouts were unknown at the time of the murder. That’s not an example of irrational prejudice. But that little sister may forever have to live with people murmuring about how she is suspected of murdering her brother, and even the defense lawyer probably realizes that it’s very likely that she’s innocent of the crime. (Same goes for any of the examples I gave.)
OK, so you’re now accusing me directly of some kind of moral failing. Could you at least try to be a little specific about what that is? I protest too much about what, because what?
What concerns does a defense attorney not care about that he should care about? What are the appropriate overriding principles in a he-said/ he-said/ she-said/ she-said/ they-said situation where nobody knows what happened, and one person is at risk of losing liberty as a result, and you personally are charged with the task of making sure that the jury considers all relevant evidence in the case, and no other job?
You tell me how this works. What’s the difference between a jury’s job and a defense attorney’s job?
I know! I know! Also ask him what the judge’s job is too!
I’m not trying to accuse anyone of anything. I apparently disagree with you about what constitutes moral behaviour in a given circumstance.
I made a general comment that something seems to be common and you said that I should understand why this would provoke a strong reaction among those who I was “besmirching”, which suggests some hyper-sensitivity about this issue.
The collateral damage to all sorts of innocent people who don’t happen to be his clients.
[Note FTR, since people are apparently pretty sensitive about this: I’m assuming you are being careless with your language - I’ve not said that “a defense attorney” does not care about these things.]
I agree that it’s a judgment call, but I don’t think anything goes as long as it has some bearing on whether the evidence is beyond easonable doubt.
Let me see if I understand what you are asking: Do (or possibly should) lawyers present facts (either true or that lawyers reasonably believe to be true) at trial that cast persons other than their client in a bad light in an effort to either discredit witness or establish reasonable doubt?
If that is correct, the answers are yes they do and yes they should. As long as the negative facts are relevant, it is their duty. Since you haven’t provided any examples, I will:
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Eyewitness was once convicted of perjury. Slam dunk, should be presented. Would potentially be legal malpractice not to. Directly relates to how much faith the jury should give their word.
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Eyewitness is same race/religion/ethnicity as victim. Should not be presented (by itself*). Not relevant and only purpose is to try and take advantage of jury prejudice.
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Victim of murder was dating someone involved with a violent gang. Should be presented. Offers a rational alternate theory of the crime.
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Victim of murder was in a same sex relationship. Should not be presented (by itself*). Not relevant and only purpose is to try and take advantage of jury prejudice.
*Additional facts could make these relevant such as prior acts of the individuals (being part of an anti-authority movement together for 2 or evidence of domestic violence for 4).
Note that attempting to introduce untrue facts in an effort to discredit witness or victims is never ethical.
IANAL, but :
So what? How do you know that the victim is actually a victim, and even if he is, that your client is guilty of anything?
The whole point of your job is presenting evidences that your client didn’t do what he is accused of, or that no crime occurred, or that the evidences presented by the prosecution are unreliable or flawed. How could you do that properly while refusing to tarnish anybody’s reputation even when doing so casts reasonable doubt?
Again, how do you know for certain that what you’re saying isn’t precisely what happened? That the apparently nice witness or victim isn’t in fact a lying piece of shit or a criminal? If you have informations that would let a reasonable person suspect that s/he isn’t necessarily as white as snow, why wouldn’t you share them with the jury? Wouldn’t doing so be a breach of duty not only to your client, but also to the court, that wouldn’t be as well informed as it should?
Point in fact : over here, two days ago, a guy was acquitted on retrial of the rape of a minor, after serving 7 years of his previous sentence. After the victim admitted to having lied (she wasn’t a lying piece of shit, but lying under pressure nevertheless). It seems also that some weird things were going on at her middle school at the time.
Now, let’s assume the lawyer would have had some informations about that but didn’t disclose them in order not to smear the reputation of the victim or of her schoolmates, because he had assumed, like everybody else, that she was above reproach. That he didn’t try to dig holes into the police officer testimony (sternly admonished during the retrial for his now obvious failures) because he was reluctant to publicly hint at a police officer in good standing being a liar or doing a piss-poor job.
If the now free ex-convict is then found to have strangled his previous lawyer in a fit of rage, wouldn’t you understand why?
You seem to want the lawyer, instead of representing his client, to determine in advance whether he is guilty or not, whether witnesses are lying or not, whether the evidences are good enough or not, and so on. In fact to decide exactly what really happened in this opinion and then presenting only facts that fit with this story to the court (because otherwise he could smear the reputation of someone he thinks is probably telling the truth). In other words, you want the lawyer to essentially do the job of both the prosecutor and the jury.
And of course the little sister might have actually killed his brother and forever enjoy her freedom and untarnished reputation (thanks for the lawyer not mentioning her) while your former (and innocent) client is rotting in jail (that even in the case where the accused’s lawyer himself strongly doubted she was the murderer)
Isn’t it up to the jury to decide whether the little sister’s opportunity to commit the crime is an information important enough to cast doubt? Again, isn’t it your duty to your client and to the court, and even to society at large, to disclose that information?
It is a lawyer’s professional ethical duty to do so, if the lawyer judges it will help the client’s case, and if the lawyer can do so without knowingly suborning perjury in any form. (N.B.: There is no requirement a criminal defense attorney be sincerely convinced of the client’s innocence before offering representation.)
And the situation you describe is, BTW, not even legally actionable – anything said in court is covered by “judicial privilege” and cannot give rise to an action for defamation.
The point was that you were responding as though your “ISTM” bit was completely irrelevant to the discussion. What you said was that it is common for a criminal defense attorney to “trash innocent people.” I said that you must have known that the people who know something about criminal defense might want to have a conversation about that, rather than act like it was dropped into your OP by gulls and just step around it and move on to some of the other, less obviously mistaken, parts.
You’re right, though, I only respond here to posts that make me cry for at least ten minutes. Your OP was a 12-spot, however, and I object to the “hyper.” I think it’s the right amount.
You have said that every defense attorney doesn’t care, because you’ve declined to distinguish whatever it is that you’re talking about from general criminal defense at large. Presumably you think some kind of criminal defense is acceptable, right? And drawing out exculpatory evidence is what a criminal defense attorney does.
It seems like you’ve forgotten that this is a thread that you started. People aren’t pointing out the things that you’re wrong or unclear about because they have some kind of obsession with lawyers’ reputations. They thought you, like, wanted to hear actual true things about the subject. That’s why you’ve been asked repeatedly to more narrowly identify the behaviors you think are OK and which aren’t, rather than making more cracks about moral compasses.
It is a lawyer’s professional ethical duty to do so, if the lawyer judges it will help the client’s case, and if the lawyer can do so without knowingly suborning perjury in any form. (N.B.: There is no requirement a criminal defense attorney be sincerely convinced of the client’s innocence before offering representation.)
And the situation you describe is, BTW, not even legally actionable – anything said in court is covered by “judicial privilege” and cannot give rise to an action for defamation.
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It might be their “professional ethics”, but it is the opposite of actual ethics and highly destructive to society and to the reputation of the profession - that sort of thing is one reason why many people look at lawyers as being vermin and monsters. It also encourages vigilantism.
I recall reading about two cases in the news years ago that happened nearly simultaneously. In one, the defense lawyer managed to humiliate and traumatize a boy on the stand in a molestation case to the point that he killed himself - a justified act by those “professional standards”, apparently. In another case, a parent killed the accused molester and went to prison for it - but their kid was still alive. I found it very symbolic.
No, what he did was ask a question and then get jumped on because the answer was obvious, as indicated by the people who actually answered it. Instead of answering it, several posters decided to nitpick it rather than try to understand it. They did the lawyer thing where you focus on one part that doesn’t make sense, and then use that to destruct the whole.
It’s a simple question. If saving your client would cause harm to someone else, would you do it?
Most people would say no. You are clearly saying yes. You are clearly saying that all that matters is the legal ethics of representing your client, and not the human ethics of not hurting someone to save yourself. Your legal ethics override
And just like when business ethics override human ones, you are being called unethical for having the improper priorities. Doing what right comes before doing what’s legal.
Stop acting like you don’t understand him because you don’t like the answer. Stop overcomplicating an easy question. As Der Trihs says, any lawyer who puts his professional ethics over the societally agreed ethics is a scoundrel and horrible person.
Ethics is not some legal concept that you can find loopholes in. Generalities is all it needs.
Again, IANAL, and I totally disagree with you.
To begin with, since when do you have a duty to not hurt someone to save yourself?
Second, people on your side of the argument obviously assume that the accused is guilty and the supposed victim and the witnesses are all beyond reproach. How do you know that? The reason why there’s a trial is precisely to settle this issue. That’s why I’m saying that you’re asking the lawyer not only to not defend his client to the best of his ability but also to assume the role of the jury. That is, you want the lawyer to determine beforehand if his client is guilty and if the witnesses/victims are blameless and to act accordingly. What the point of a trial if the lawyer representing the accused basically just says : “I’m not going to try to defend my client because I’ve already determined his guilt and I don’t want to hurt the feeling of this poor and innocent victim over there?”
Finally, I gave the (real) example of a man accused of child rape by a lying tween that nobody believed to be a liar. How do you reconcile your views of what a lawyer should do and the fact that the man could, in fact, despite the appearances, be innocent, and the girl, despite the appearances, a liar?
Your position would result in people, who, again, might be guilty or might be innocent not getting any serious defense because not even their own lawyer would be willing to propose alternate scenarios or to point at possible inconsistencies out of fear that it might hurt someone’s feeling.
The moral failure for lawyers would definitely be to act as the OP would want them to. As I said previously, it would be a dereliction of duty not only to their clients, but to us all, not to present to the court and the jury all the elements that could cast doubt on the guilt of his client. Since when a poorly informed jury is a good thing?
If you don’t want to possibly be in a situation where you might tarnish the reputation of someone who might not deserve it because your client might be guilty, just don’t become a lawyer. On the other hand if you’re a defense lawyer in criminal cases, and don’t do your best to defend your evil-looking client because the supposed victim is such a nice girl and the witness is such a sweet old lady, then you’re a piss poor excuse for a lawyer, a moral failure, and I definitely hope you’ll switch job to something more appropriate like being a social worker (and probably not even that because you’ll be in a position to have to help as much as you can people who might or might not deserve it. Including convicts).
A last sentence :
Even if you’re personnally totally convinced that your client is guilty, and nevertheless somehow took the case, you still have a moral duty to point at the little sister’s opportunity to kill her brother. Because it’s not up to you to decide on guilt. It’s up to the court and/or jurors, on the basis of the best information available, that you’re supposed to produce.
About besmirching others to get off of a crime and make your self look good.
Didn’t work twice, did it Juice the Asshole.
Thank you for the lesson in real world ethics.