What if a defense lawyer finds out his client is guilty?

[sweeteviljesus]

Suppose that during the course of a murder trial, the defendant hands his lawyer a videotape of him (the defendant) committing the murder which the lawyer watches. Is the lawyer obligated to turn that tape over to the prosecution? Does the lawyer have any new obligations?

Thanks,
Rob

[ivylass]

IANAL, but I believe different states have different rules about discovery. Also, if I had to guess, as long as the defendent does not take the stand (suborning perjury) then the defense attorney is in the clear.

[Really_Not_All_That_Bright]

1. Only if required by whatever the discovery procedures are for that jurisdiction. (and then, it depends on in whose custody and/or control the recording or whatever is). Generally, if the prosecution doesn’t know about it, defense counsel doesn’t have to go around telling them.

2. Ethically, no - although he must counsel the accused not to give perjured testimony.

This is an ethical, rather than legal, question; under the law, the accused isn’t legally guilty until convicted, so even if the lawyer knows his client is factually guilty, he cannot say whether his client is legally guilty until the trial has actually taken place.

His basic obligation remains the same - to mount a complete defense of every element of the case.

Oh, and IANAL.

[sweeteviljesus]

So, the rules of discovery could supersede attorney-client privilege here?

Thanks,
Rob

[chowder]

Couldn’t the defence attorney just decide to quit the case

[Really_Not_All_That_Bright]

@chowder

Couldn’t the defence attorney just decide to quit the case

Yes, if the defendant tells him he will perjure himself if called testify. Generally, a criminal defense attorney can’t just quit in the middle of a case. A mistrial might then be a likely outcome, which judges tend to frown upon.

@sweeteviljesus

So, the rules of discovery could supersede attorney-client privilege here?

Thanks,
Rob

Not really. If the attorney just happens to view a videotape of his client committing the crime he is accused of, the attorney-client privelege does not apply. If the client confesses, then that would be priveleged. Even if he did confess, though, a confession does not by itself establish guilt. The defendant could be lying, under the influence of mind-altering substances, or under duress.

I don’t honestly know of a jurisdiction in which the attorney would be required to inform the prosecution if he does not doubt that his client is guilty, but I have heard that such rules exist.

[chowder]

What if the defendant does not say he will perjure himself.

Surely a defence lawyer who is in possession of evidence proving his/her clients guilt could not be reasonably expected to continue to defend said client.

Or am I being naive?

[Whack-a-Mole]

@chowder

What if the defendant does not say he will perjure himself.

Surely a defence lawyer who is in possession of evidence proving his/her clients guilt could not be reasonably expected to continue to defend said client.

Or am I being naive?

Remember an attorney’s job is not necessarily limited to getting their client acquitted. Part of their job is to see that their client is treated fairly by the law (their rights are not abridged, they get sentenced appropriately and so on).

I could be mistaken but it has been my impression that more often than not a defense attorney is working out plea bargains rather than pursuing an outright acquittal.

[filmyak]

@chowder

a defence lawyer who is in possession of evidence proving his/her clients guilt could not be reasonably expected to continue to defend said client.

Or am I being naive?

You’re being naive.

Defense lawyers absolutely defend clients they know committed the crime they were charged with. And they legally must defend them with extreme zealousness. (IANAL, not sure what the legal terms are, but the defense can’t be a half-assed attempt with a hidden agenda to make the criminal pay for their crime.

In fact, let’s say the police discover the videotape and share it with the defense atty, who is then confronted with proof their client killed the victim in cold blood. A defense atty’s obligation would be to try to keep the tape out of court, or try to discredit it, etc.

[Telemark]

@chowder

Surely a defence lawyer who is in possession of evidence proving his/her clients guilt could not be reasonably expected to continue to defend said client.

Or am I being naive?

Sure, the lawyer is there to present the best defense possible under the law. The guilt or innocence of the client is, in many ways, unimportant.

You are being naive, IMO. Factually committing an act, and being legally guilty, are two different things.

[sweeteviljesus]

What if the client shows the lawyer the tape just to get his jollies but does not intend to testify and the prosecution has no idea of the existence of the tape? Is the lawyer bound by attorney-client privilege? Can he destroy the tape?

Thanks,
Rob

[Punoqllads]

If a lawyer believes that his client is guilty, it’s just as important for him to build a good defense, to prevent a later appeal of the case on the grounds of having had an inadequate defense.

Going back to the thought of the videotape example, I am wonder what are the responsibilities of an attorney who later finds out that his client perjured himself.

[Gfactor]

I was going to run through some of the famous cases and nuances, but I don’t think I’ll have time. Here are a few very good resources on the topic.

http://findarticles.com/p/articles/mi_qa3975/is_200204/ai_n9066428/pg_25

http://www.cobar.org/index.cfm/ID/386/subID/1781/CETH/Ethics-Opinion-60:-Duty-with-Respect-to-Client’s-Incriminating-Physical-Evidence,-07/24/82/

http://www.mebaroverseers.org/Ethics%20Opinions/Opinion%2060.htm

http://links.jstor.org/sici?sici=0038-9765(198005)32%3A5<977%3AELALTA>2.0.CO%3B2-2

IN RE: ORIGINAL GRAND JURY INVESTIGATION. (2000) | FindLaw

The State Bar of California

[Leaffan]

@sweeteviljesus

Suppose that during the course of a murder trial, the defendant hands his lawyer a videotape of him (the defendant) committing the murder which the lawyer watches. Is the lawyer obligated to turn that tape over to the prosecution? Does the lawyer have any new obligations?

Thanks,
Rob

Depends.

What’s your “location?”

(Runs and ducks…)

[Really_Not_All_That_Bright]

@Leaffan

Depends.

What’s your “location?”

(Runs and ducks…)

Jimmy, the Leaffan got out of the Pit again…

[Gfactor]

@Punoqllads

Going back to the thought of the videotape example, I am wonder what are the responsibilities of an attorney who later finds out that his client perjured himself.

Basically,

If perjured testimony or false evidence has been offered, the advocate’s proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation. If withdrawal will not remedy the situation or is impossible, the advocate should make disclosure to the court. It is for the court then to determine what should be done – making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing. If the false testimony was that of the client, the client may controvert the lawyer’s version of their communication when the lawyer discloses the situation to the court. If there is an issue whether the client has committed perjury, the lawyer cannot represent the client in resolution of the issue, and a mistrial may be unavoidable. An unscrupulous client might in this way attempt to produce a series of mistrials and thus escape prosecution. However, a second such encounter could be construed as a deliberate abuse of the right to counsel and as such a waiver of the right to further representation.

legal ethics | Wex | US Law | LII / Legal Information Institute

legal ethics

And see,

If false evidence is offered by the client, however, the lawyer’s obligations are in part controlled by whether the client is a civil litigant or a criminal defendant. Id. In either event, the lawyer is instructed to confer with the client, urging that the client remedy the lie. Id. If a client in a civil matter refuses, the lawyer is duty-bound to disclose the falsehood to the court or opposing counsel. Id. If a criminal defendant persists in continuing the falsehood, the attorney’s duty is less clear. Id. The comment suggests either withdrawal, disclosure or putting the client on the stand to testify in narrative form. Id. [See also 3.3:510, 3.3:520, and 3.3:610.]

legal ethics

Under DR 7-102(B), a lawyer must take remedial action when the lawyer receives information clearly establishing client fraud on a person or tribunal, or a fraud by a person other than a client on a tribunal. OSB Legal Ethics Op Nos 1991-34 (remedial action in both civil and criminal context), 1991-53 (discussion of duty not to assist in fraudulent conduct); see In re A., 276 Or 225, 554 P2d 479 (1976) (lawyer who knew through confidential information from client that client’s testimony was false and misleading and client refused to permit lawyer to disclose information to court, lawyer could not reveal confidential information and was obligated to withdraw).

legal ethics

[Hypnagogic_Jerk]

@filmyak

In fact, let’s say the police discover the videotape and share it with the defense atty, who is then confronted with proof their client killed the victim in cold blood. A defense atty’s obligation would be to try to keep the tape out of court, or try to discredit it, etc.

“Prosecution moves that Principal Skinner’s testimony be stricken from the record.”

Okay, that was the prosecutor, but same idea.

[askeptic]

@sweeteviljesus

Can he destroy the tape?

Thanks,
Rob

Destroying evidence is a crime even for a defense attorney.

[askeptic]

Under DR 7-102(B), a lawyer must take remedial action when the lawyer receives information clearly establishing client fraud on a person or tribunal, or a fraud by a person other than a client on a tribunal. OSB Legal Ethics Op Nos 1991-34 (remedial action in both civil and criminal context), 1991-53 (discussion of duty not to assist in fraudulent conduct); see In re A., 276 Or 225, 554 P2d 479 (1976) (lawyer who knew through confidential information from client that client’s testimony was false and misleading and client refused to permit lawyer to disclose information to court, lawyer could not reveal confidential information and was obligated to withdraw).

While most jurisdictions have similar requirements they fail to offer a practical solution for an attorney in this situation. An attorney must request permission from the court to withdraw from representation but also has a duty of confidentiality to client. Just try withdrawing without saying why you want to withdraw. Doesn’t happen around here. The system puts lawyers in an untenable ethical position and offers no solution. You cannot suborn perjury you cannot withdraw without good cause you cannot establish good cause without violating your duty of confidentiality and around we go. Other factors involve constitutional rights. If a jury is empaneled jeopardy has attached making a mistrial a very complicated matter.

[msmith537]

@Whack-a-Mole

I could be mistaken but it has been my impression that more often than not a defense attorney is working out plea bargains rather than pursuing an outright acquittal.

Defense attorney’s generally work out plea bargains because they believe there is enough evidence to convict their client. If your client tells you he’s guilty, AFAIK, it is considered attorney client privilege and is inadmissable. You might advise your client to plead guilty but otherwise you must still vigorously defend him.

From what I’ve seen, often times lawyers don’t even care about a clients guilt or innocense. They don’t get all emotional like you see in Law & Order. They are doing a job, which is to provide the best legal counsel they can provide.