What happens when a person accused of a crime talks to their lawyer? Do they tell the lawyer everything? Do they tell the lawyer if they did it? Or does the lawyer not want to know so they can defend the case as “not guilty” without necessarily lying.
If the client tells the lawyer, “Yep, that’s right, I done killed my pa,” or whatever, can the lawyer still plead “not guilty” and tell the jury the client didn’t do it? How is this not perjury by the lawyer?
In short, what takes place conversationally between the accused and their lawyer? Assume the rat done kilt his pa in this scenario.
We had an interesting thread that addresses some such questions about a month ago
[thread=311923]Guilty in a murder case?[/thread]
Basically:
Guilty clients tell their lawyers all kinds of things.
Good lawyers generally tell their clients to tell them the truth, even if they’re guilty as hell - their duty is to defend them as vehemently as possible no matter what, but they need to know as much as possible about the facts of the case to figure out the best way to do that.
No, a lawyer cannot ethically lie, but this turns out to really not matter, because it doesn’t really matter much what the defense attorney says in court about whether his client did it. Since he’s viewed (IIRC) as an extension of the defendant, his advocate, he doesn’t have a lot of credibility in the eyes of the jury. Prosecution has the burden of proof, and the defense attorney’s role is to refute the arguments that the prosecution puts forward, or possibly to come up with compelling evidence that his client could not have done the deed.
An extension of this establishes how the lawyer can plead not guilty when he knows the client is guilty… first off, it’s a plea, not testimony, so it can’t possibly be perjury. It’s done on the client’s behalf, and all it really means is that the defendant is not admitting his guilt openly to all the court. The prosecution has to try and prove it.
The part that always gets me, and I think the OP, is when lawyers counsel their clients (on TV, anyway) NOT to tell a certain part of their story to them, because then he (the lawyer) will know more than he needs to know. I always imagine that, if I were guilty of some crime, I would need to be very cagey with my lawyer, who would be at once asking me to tell him EVERYTHING about the case I could think of and NOT to tell him certain things that will hamstring my defense.
So in advance of standing trial on a felony, I’m already confused as to what and how much I should tell my attorney.
Remember too that a plea is not a statement about what the accused did, but an assertion regarding the crime alleged to have been committed. Suppose Smith kills Jones and is duly charged, after investigation, with the crime of murder. But it was a “crime of passion” (which may have nothing to do with sex, but rather means emotional impulse), not premeditated. So in pleading not guilty to murder, he is telling the truth; though in his heart he is well aware he killed Jones, he did not commit murder but manslaughter.
Hypothetically speaking, of course (I assume said felony has not yet occurred), tell your lawyer the truth. (If said felony already has occurred, I am not your lawyer, you are not my client, and this is not legal advice.)
Lawyers have an ethical duty of “candor to the tribunal,” which means they cannot lie or mislead the court. See here for California’s version, and here for one from the Law Society of Upper Canada. In fact, I really like LSOC’s rule, because it answers the OP better than I could:
Assume the client did not kill his pa. There is a linguistic difference between the following two statements, but neither statement is misleading and both statements are true:
[ul]My client did not kill his father.[/ul]
[ul]The state has not proven beyond a reasonable doubt that my client killed his father.[/ul]
If my client had, in fact, kilt his pa, I cannot make the first statement, but I can still make the second statement. As the LSUC rule annotation states, a lawyer cannot use defences that are false (cannot create an alibi, for example, or blame someone else), but still can defend his client. California’s rule is in accord, as it states that a lawyer can use only such means as are consistent with the truth.
But to answer the OP: as many different crimes and criminals as there are, and as many different lawyers, you’ll find that many conversations. Some clients presumably will lie, some presumably will tell the truth, some presumably will supply a blend of truth and lie. (This is, of course, hypothetical, and is emphatically not drawn from my personal experience in criminal law, as I have had only one client in that area.) So the short answer to the OP is: it depends on the people involved.
Hi Campion!! (I remember you from the other thread… you said I wasn’t naive )
Any opinion on what pseudotriton mentioned about lawyers on tv telling their clients NOT to tell them the whole truth?? I’ve seen that sort of thing, (especially fyvish fynkel’s character on ‘picket fences’,) but always thought it smelled highly of bull plop. (A lot of the legal stuff on that show was so bizarre as to not have much credibility, though it was fun to watch.)
I’d be interested in a lawyer’s opinion, even if you don’t have much crimlaw experience.
So far as I can tell, you’re still not naive. And since my only criminal law experience is my pro bono work for family, I am (thankfully) far from an expert.
My opinion about television lawyering is that it sacrifices truth for story-telling. For example, you’ll see a lawyer yell, “Objection!” and the judge says, “Sustained!” In reality, the judge would say, “Grounds?” forcing the lawyer to state the basis for the objection. On TV, however, the story flows much more smoothly (and the audience is not distracted) if the lawyer doesn’t state the basis for the objection. It’s like CSI; it’s an extraordinarily unrealistic glimpse into a profession, but it’s done to entertain, not enlighten.
There are undoubtedly lawyers who tell their clients not to tell them the truth, just as there are undoubtedly lawyers who violate the Rules of Professional Conduct. I say “undoubtedly” because humanity is a wide and varied thing. And also because I have known a lawyer who lied (she was opposing counsel and, I think, didn’t realize the scope of her lie until she was called on it). Where I work, we say, “It is what it is,” meaning we will work with whatever the facts are to create a viable defense.
So the lawyers that you see on TV represent a scriptwriter’s view of what a lawyer could be, and it’s done to entertain. Does it happen in real life? Maybe. Would any ethical lawyer do it? Likely not, and for a very good reason beyond the rules of ethics. As the lawyer, it is critical that I know all the facts. The last thing that I want is to be surprised about something. If my client tells me, yes, I kilt my pa with that there hunting rifle that I hid in the barn, then I know what the facts are. If my client lies to me, and the hunting rifle turns up with his prints on it, I’m caught flat-footed; I don’t have time to prepare a defense, or I’ve already created (and gone public with) a defense that is inconsistent with the newly-discovered fact. That looks bad for my client, to change theories mid-stream. I would much rather know all the facts, ugly as they are, so that I can prepare a defense that accounts for all contingencies, than to continue blithely forward in ignorance of the truth, only to get slapped in the face with it later down the line.
My lawyer also told me to “tell me the truth, but also remember this isn’t a confessional booth”. In other words, tell him every fact about the case at hand, but you don’t have to talk about any other crimes, unless they are relevant= “I couldn’t have shot my wife then, I was robbing a liquor store two counties away”.
However- AFAIK, this differs in the British system of law.
At my first interview with a criminal client, I tell him or her that I do not want to know if he or she committed the crime. I explain to the client that if he or she tells me that he or she did the dastardly deed, then it will limit how I can put forward the defence because I must not mislead the court (I am under the LSUC rules). I then tell the client that he or she must not lie to me or to the court, but I do not ask the client if he or she committed the crime.
I don’t know anything about law or courts, my only experience with either being the day I was recused from jury duty, but I do find human nature fascinating. And it seems to me that one of the strongest urges held by most people is the desire to tell their story. That’s basically what therapy comes down to, with the only mildly neurotic - the need to tell one’s tale.
So I find it really strange to imagine a guilty person carrying on a charade of innocence, even when it’s in his best interest to do so. I would think that the burning desire to speak their truth would override the protective instinct in a lot of people.
Is that the case? Or is fear stronger?
And, also, Campion, I’m sure someone’s welcomed you to the Dope long 'ere now, but I just wanted to say I’m really enjoying your posts here of late.
I can assure you that there are a great many people who will quite happily lie through their teeth if it benefits them. A criminal attorney will do well to remember this when dealing with his or her clients, and take great care to not get sucked in.
I can imagine that there are times when the line between “creating an alibi” and “refuting the prosecution’s arguments” is hard to draw.
For example, let’s say that the prosecution claims that your client killed his pa between 8:30 and 10:30 on a certain date. Let’s say that your client did in fact kill his pa, but it happened at 11:30 and he has a provable alibi for the time period up to 11:00. Are you allowed to use that alibi?
Or could you just let the prosecution make their case and then jump up and cry “Gotcha! My client did kill the victim, but the murder did not happen in the way that the prosecution claims, and I can prove it!” Could they then re-prosecute your client, or would double jeopardy apply?
But there are also a number of people who, for whatever reason, simply can’t keep their yaps shut. I don’t know if there’s an analogous rule in Canada, but this is why law enforcement went from complaining heartily about Miranda to becoming its biggest proponents. You see, under Miranda, the police warn the suspect that if he talks, they’ll use it against him. The suspect talks, the cops use it against him, and the judge says, “well, they followed Miranda so the confession is in!” (The more interesting cases are, of course, the ones involving false or involuntary confessions. See here for a fascinating transcript of Dr. Richard Ofshe’s testimony in a trial (well, it gets fascinating about a third of the way through for non-lawyers, the early bits are also fascinating to me); note that the Court ordered that Dr. Ofshe could testify that the confession was involuntary, but could not testify that the confession was false or that the defendant did not commit the crime.)
And to anyone thinking that there’s something hinky about Muffin telling clients not to confess all their sins, please see the LSUC ethical rule above. Muffin is, as I read the rule, obligated to inform clients that a confession could limit the lines of defense.
I do civil work, where the worst thing we have to worry about is Sarbanes-Oxley and its requirement that lawyers behave unethically. But that’s clearly another thread . . .
Absolutely, present the alibi witness. You cannot argue, “My client didn’t kill his pa,” but you can argue, “the prosecution has shown that the murder occurred between 8:30 and 10:30, while my client was singing in the church choir. How could my client be in two places at once?”
inkleberry, I apologize for the multiple hijacks, but you asked a great OP. So I blame you.
Ask your lawyer how much you should tell him or her before you tell your lawyer what you did.
Depending on the defence you are raising, if you end up telling your lawyer too much, your lawyer may recommend that you get another lawyer. The first lawyer can not testify against you concerning what you told him or her about your past actions, and the second lawyer will not know what you told your first lawyer concerning your past actions.
Yup. “Admissions made by the accused to a lawyer may impose strict limitations on the conduct of the defence, and the accused should be made aware of this.”
)
And since my only criminal law experience is my pro bono work for family, I am (thankfully) far from an expert.