Are there any situations where bail should not be taken if offered by the authorities to an arrested person? Is it always to your advantage to spend the money if you can afford it? What do people do when they’ve posted bail? In other words, what should they do to get ready for their court appearance? If they know they’re guilty, what should they do when they post bail that would help them in the court proceedings against them? What kind of disadvantages do people not have (legally) when they have to stay in jail? I mean, they are provided a lawyer in any case, right?
If you’re not given bail, doesn’t that mean you are denied the chance to attend to your affairs (e.g. Pay bills, arrange childcare, etc.?). Doesn’t this mean that law enforcement may be creating more problems than it solves by not giving a person a chance to make sure that they can make arrangements with people or companies that depend on them?
Law enforcement must gather sufficient evidence to arrest a politician on suspicion of corruption. So why do we see so many politicians declare that they will be vindicated and/or proven innocent? Do they really believe they are innocent, or is it a show of bravado? How could they say such brazen statements knowing that the police must have gathered a good amount of evidence against them? Or does this point to general incompetence of police and law enforcement authorities? What’s the track record of famous people declaring their innocence and their confidence that they will eventually be vindicated? After being vilified by the media, are a good number actually found to be innocent? What made me think about this particular question is the corruption case against Robert Menendez of NJ, who has publicly said that the charges against him will be proven false.
The Tsarnaev trial prompted this question. Throughout the Boston Bomber Trial, Tsarnaev’s lawyers argued that his brother Tamerlan was the mastermind behind the plot. Do lawyers who have to defend an obviously guilty suspect have to come up with the best defense possible anyway? Is there any fun or joy in defending the most evil people in the world? Are they constantly having mental issues having to represent someone who did commit a heinous crime and trying to get them declared not guilty? Do some lawyers purposely not try as hard as they can for a really disturbed/crazy/evil client? What kind of codes compel defenders of these criminals to do whatever’s necessary to exonerate their client? Why would someone want to take such a thankless job??
Unless the defendant violates terms of the bail the money get’s returned eventually.
So it’s not exactly like spending the money. If one can come up with bail I don’t see how sitting in jail until their trial would do them any good. Unless they think they are going to be convicted and figure they’ll get credit for the time.
And it’s not law enforcement setting bail, it’s the courts. The police don’t even get to give an opinion on it, the prosecutor does. For most charges there is a set table of bail amounts and the judge will decide on that. He/she has leeway though.
The amount of evidence needed to charge is not the same amount needed to convict. And if you’re a public figure, you pretty much have to tell everyone you’ll be vindicated. If you say, “well, shucks, I did it,” you can kiss your career goodbye even if you are ultimately acquitted.
The best defense that is consistent with the rules of ethics, yes. You can’t lie, or put a witness on the stand who you know will lie.
Joy? Doubtful. But there is a certain satisfaction in ensuring that everyone gets their day in court. Our entire system of justice depends on what criminal defense attorneys do.
This is flat-out, categorically, unequivocally wrong. The attorney is an officer of the court and is effectively under oath at all times.
From the ABA Model Rules of Professional Conduct:
[QUOTE=Rule 3.3]
A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
…
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
[/QUOTE]
[QUOTE=Rule 8.4]
It is professional misconduct for a lawyer to… engage in conduct involving dishonesty, fraud, deceit or misrepresentation
[/QUOTE]
From the Florida Oath of Attorney:
From the Rules Regulating the Florida Bar:
[QUOTE=Rule 4-3.3]
A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
…
(4) offer evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
[/QUOTE]
You will find substantially the same rule in every US jurisdiction and in just about every code of conduct governing foreign lawyers too.
I don’t understand. Say you’re a politician that engaged in corruption. Isn’t it better to admit your mistake and promise to fix your errant ways? How many times have politicians made a comeback after a conviction? Plenty of times.
If you proclaim your innocence when you know you’ve done something wrong, it’s just going to be worse for you when you are ultimately convicted. What are you as a politician going to say then? Or would they even proclaim their innocence even after a court of law has declared them guilty? That seems really stupid because if the public chooses to believe these politicians, it makes our justice system seem incompetent. And if they choose not to believe these politicians, nobody is going to give a confirmed criminal and liar another chance representing the public! What am I missing?
I would also love if someone could shed light on questions 1 and 2, please.
#1: There are very few advantages to sitting in jail. Jail sucks. As was mentioned upthread, if you are guilty and it is a slamdunk conviction, you can be getting credit for the time you served. Also if your bail is set at, say, $50,000, you probably don’t have that money or property to post, so you would have to hire a bondsman. At least around here, the bondsman would require you to post $2,500 of that up front to get out of jail and you would enter a payment plan for the remainder of the 10% (an additional $2,500. Miss one payment? Go back to jail). And this money is non-refundable. So, by staying in jail, you save $5k.
If you have been living on the street or bouncing around from drug house to drug house, staying in jail might be a good “time out” to reflect on your life.
#2: “Law enforcement” doesn’t set bail, the courts set bail. Theoretically, they are supposed to take into account your dealings and presence in the community as a factor in setting the amount. (In practice, they spin their Rolodex, look up the crime you were charged with, and look at the amount) But they do that not as a personal convenience to the defendant, but as one of the factors that tend towards the two main goals of bail: 1) ensuring your appearance at trial, and 2) protecting the community from further criminal acts. If a bond is appropriately set and it causes you to lose your job or house because you can’t pay your bills, then that is too bad for you.
But at least around here, that rarely happens. If there are extenuating circumstances (“Judge, this man’s home is going into foreclosure! He simply cannot post this bail amount!”) then we will go over his finances and bond will usually be set at the most crippling amount that he can pay, but will also allow him to get out of jail.
So if an attorney knows his client is guilty, eg his client has told him that he committed the crime, is the attorney ethically bound to resign if his client takes the stand and perjures himself? Must he inform the judge that perjury has been committed? Or can he simply sit his client down and say something like, “What a shame you told me you were guilty, if only you’d been lying then.” “As a matter of fact I was”, says the client with a grin. Has the attorney covered his ass? Can he now put his client on the stand, if not in good conscience then at least in legal bullet-proof conscience?
This is a good article on the subject. The major issue is that the lawyer’s duty not to present perjury comes slam bang up against a criminal defendent’s unequivocal Constitutional right to testify and the attorney-client privilege.
The short answer is that resolving this conflict is complicated and there are several philosophical approaches (discussed in the article I linked to).
However, under the ABA rules (adopted in all states with some variation)
If the attorney learns after the fact that the testimony given was false, he must take “remedial measures” which can include informing the court. (ABA Model Rule 3.3)
Now what happens if the attorney has reason to believe in advance that the client will lie on the stand? Under the current ABA interpretation, if the lawyer knows the testimony will be false, he may try to persuade the defendent not to offer the evidence, and if he cannot be convinced, he should refuse to elicit or permit the perjured testimony. If that’s not possible or impairs the ability of the lawyer to offer competent counsel, the lawyer may request to be withdrawn. However, the lawyer must know the testimony is false to a degree of certainty. If the lawyer only suspects or believes that the testimony of a criminal defendent will be false, he may not refuse to offer the testimony.
In some situations, it is possible to let the witness testify in the narrative form–ie, without any questions from the lawyer.
Of course, this is an obvious tip to the Judge and other lawyer that the witness will be in need of a fire extinguisher for his trousers at the conclusion of his testimony on direct, and that the squeamish should look away during cross, because the witness is going to be brutalized.
One reason why an attorney in a criminal matter might not ask his client whether or not he is guilty is to maintain the option of allowing the defendant to testify on his own behalf. If the defendant then lies the attorney is not responsible.
Not testifying should be the default, but in my experience it was less often than “nearly always” where it was a bad idea for the defendant to testify.
In cases that are going to trial, I’d say I was comfortable with my client testifying 25 to 40% of the time. (not* comfortable*, per se, but thought it was necessary or advisable)
