Between a Confession and a Hard Place

December 22, 2008 9:30 AM

LawFilter: You're a criminal defense attorney defending a murder suspect. Your client is guilty. What now?

I'd be very interested to hear from MetaLawyers on this. Note: I'm not seeking legal advice and this is a completely hypothetical construct.

If your client is guilty and tells you he's guilty:

1. Are you obligated to continue representing him or can you dump him? I'm referring to regulatory obligations or Bar Association obligations.

2. Are you obligated to inform someone? (Same obligations as above)

3. More subjectively, if you COULD drop the client, would you? If you COULD tell someone, would you?

My question is motivated mostly out of sheer ignorance as to how the legal system works from this point of view.

posted by DWRoelands to law & government (50 comments total)

1. Yes you are absolutely obligated to continue the defense.
2. Who? Why? Your job is to defend his rights at trial, even if you "know" he's guilty. Which you probably don't. So, no. You have no obligation to tell anyone "OMG! Yes, he *really* did it. And in fact, you are seriously breaching your ethics if you tell anyone what your client has told you as part of your attorney-client relationship.
3. No.

I do admit that, once, I was tremendously relieved when my client died in prison while his appeal was still pending. We most likely would not have won a new trial, and he was undoubtedly guilty (it was "only" an assault with severe bodily injury conviction, the attempt charge having not gone forward). He was a despicable human being, but his trial attorney did not even go through the motions, which is wrong and needed to be redressed.
posted by crush-onastick at 9:38 AM on December 22, 2008

This paper goes through some history of the issue and various views. One of the main sticking points in the US legal system is that a lawyer cannot knowingly allow a witness to commit perjury, so if the lawyer knows the defendant or another witness will lie in their testimony they are supposed to prevent them from doing so.
posted by burnmp3s at 9:42 AM on December 22, 2008 [1 favorite has favorites]

In some cases, police extract false confessions. Radley Balko tracks these on his blog.
posted by Pants! at 9:43 AM on December 22, 2008

My ex-gf was a criminal defense attorney. Essentially what crush-onastick said.

There's a problem with the phrasing of your question. "your client is guilty." How do you know the client is guilty? Because he/she said they were guilty? Who are you to judge the truth of this confession?

You're not the judge. You're the defense attorney who is there to provide your client the best defense you can give.
posted by vacapinta at 9:48 AM on December 22, 2008

In Australia (probably the same elsewhere):

If you client admits to you he is guilty you are not allowed to put forward any other defence than guilty, if he insists that you put forward a defence of innocent you must excuse yourself from representing him (1). Solicitors rules state that you may not lie to or mislead the court, and if you do you may be disciplined by the law society. However you were told this in confidence and thus the admission is subject to legal professional privledge (a right of your client) so you may not disclose this without their consent (2).

For (3) Depends and No

However you can enter no defence - as "innocent until proven guilty" requires that the prosecution proves their case ... thus you can quite acceptably have as your strategy "testing the evidence" of the prosecution to ensure it is sufficient to meet the legal requirements for a verdict of guilty.

This stuff is textbook legal ethics stuff.

I recall in my legal practice class that there was a particular way of excusing yourself to the judge in this kind of circumstance ... which obliquely indicated to the judge exactly why you were excusing yourself without actually saying it.
posted by jannw at 9:50 AM on December 22, 2008 [2 favorites has favorites]

I fight my ass off, challenge the criminal procdure aspects of the case and try to get him off. That's what I do for a living. If all lawyers can just make this choice, then those less fortunate, or even those most consider guilty won't get representation.

But it is often in this sort of defendant's interest to make the best deal possible. I would likely advise this as a first step. I've worked on a few criminal cases, but my work is very similar in that I often have to defend people my gut tells me are guilty of misconduct.
posted by Ironmouth at 9:53 AM on December 22, 2008

My apologies for phrasing the question ambiguously. Please allow me to rephrase.

The hypothetical I am trying to construct is a situation where you, as a defense attorney are convinced (to your own personal satisfaction) that your client is actually guilty of the crime with which he is being charged. There's no chicanery on the part of the police department, no issue about the client not knowing his rights, no problems with the client's mental capacity or any other mitigating factors.

The client is guilty. You know, factually, that he is guilty. He refuses to plead guilty.
posted by DWRoelands at 9:58 AM on December 22, 2008

I asked a relative who is a lawyer about this a while ago. As I understand his response:

It's the job of the judge/jury to decide who is guilty. It's the laywer's job to make sure someone proves an accused is guilty before throwing them in jail. This sort of system ultimately benefits everyone, so it's worth defending.
posted by Solon and Thanks at 9:59 AM on December 22, 2008 [2 favorites has favorites]

The client is guilty. You know, factually, that he is guilty. He refuses to plead guilty.

But he doesn't have to - the state has to prove that he is.

(IANAL, but all of these responses corroborate exactly what I have heard from other lawyers and friends/family who work in law enforcement)
posted by jquinby at 10:10 AM on December 22, 2008

Maybe this related question would help clear it up:

What situations are there that you could and would not agree to take on a client?
posted by gregvr at 10:22 AM on December 22, 2008

Yes, you absolutely should, and in fact must, continue to represent that person. The decision on whether to plead guilty or not guilty is solely that of the client. See ABA Model Rule 1.2 ("In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.")

The lawyer should advise the client with respect to the client's best interests. If the evidence is solid and there is no defense, the lawyer should encourage the client to plead guilty and cut a deal, knowing that there is a high likelihood that a jury will find him guilty. If the prosecution has nothing to work with other than a hunch, the lawyer should encourage the client to plead not guilty. In all events the lawyer must respect the client's informed decision on how to proceed. Your client could still be clutching the bloody axe, and if he chooses to plead not guilty, you must allow him to do that and represent his best interests.

To accept a client's confession that he is "guilty" (which is a legal term, not a provable fact) and force him to plead guilty as a result would eviscerate the Sixth Amendment right of all criminal defendants to be innocent until a jury finds you guilty beyond a reasonable doubt.

In fact, the ABA Model Rules specifically allow an attorney to introduce facts into evidence that he "reasonably believes" to be false if the evidence is offered by the defendant testifying on his own behalf. See ABA Model Rule 3.3(a)(3). If the lawyer "knows" that the evidence is false, he may not sponsor it at all. In such cases, the defense lawyer may not conduct a direct examination, but simply let the defendant tell a narrative.

Johnnie Cochran once famously said that he never asked OJ whether or not he was the killer. Knowing the truth would harm his ability to represent the client. Instead, you should marshal all facts, that you do not reasonably know to be false, that would undercut the prosecution's case and create reasonable doubt.
posted by Saucy Intruder at 10:23 AM on December 22, 2008 [3 favorites has favorites]

The lawyer's "personal satisfaction" is absolutely irrelevant to the case. You might also review the 5th Amendment if you're concerned with US law.
posted by rhizome at 10:24 AM on December 22, 2008

An addendum on confidentiality. You are duty-bound to respect the attorney-client privilege with respect to anything your client tells you. If this causes you to reasonably believe that certain evidence is false, your obligation not to sponsor such evidence is triggered. You may only breach confidentiality when your client informs you that a future crime will be committed. If your client tells you, "Just a heads up, I'm going to kill some people on my way home, so I might need you to bail me out later" you call 911 with your conscience clear.
posted by Saucy Intruder at 10:28 AM on December 22, 2008

The hypothetical I am trying to construct is a situation where you, as a defense attorney are convinced (to your own personal satisfaction) that your client is actually guilty of the crime with which he is being charged. There's no chicanery on the part of the police department, no issue about the client not knowing his rights, no problems with the client's mental capacity or any other mitigating factors.

You really never know, factually, that anyone is guilty. That's what the finder of fact is for. The definition of guilty is a fact finder rules them guilty. There are wrongly decided verdicts of guilt, but what you are really asking is if we would defend a client that we strongly believe committed the crime. I guess lawyers and non-lawyers have a different definition for this. Have I been pretty damn certain? Yes. Could I prove it? No.

But it isn't my place to do the job of deciding if someone was guilty or not.

Anyway, what kind of case am I supposed to put on if there is no possible defense? You start to stray from the ethical at some point and into the question of legally appropriate strategy when you cut off all angles of possible defense.

But I always defend the client, no matter what. I attack the testimony, I attack the handling of the evidence, (was the chain of custody followed?) I find another possible story involving someone else having a motive. You just keep fighting.
posted by Ironmouth at 10:37 AM on December 22, 2008

The hypothetical I am trying to construct is a situation where you, as a defense attorney are convinced (to your own personal satisfaction) that your client is actually guilty of the crime with which he is being charged. There's no chicanery on the part of the police department, no issue about the client not knowing his rights, no problems with the client's mental capacity or any other mitigating factors.

Even here, though, there are shades of meaning when it comes to "guilty of murder" --

Scenario 1: Your client knows murder is illegal and immoral, but still wanted to go ahead and kill the victim. He planned things out in advance, carried through with his crime, and was in his right mind the whole time -- and the whole time he persistently knew that what he was doing was illegal, and that what he was doing would result in another person being dead, but did it anyway, and then covered it up so as to evade capture.

Scenario 2: Your client was pissed as hell at the victim, and wanted to beat the tar out of the victim, and planned that assault in advance -- but when he actually went to do so, he just went overboard. He did not ahead of time plan to kill the victim, he just wanted to kick the crap out of the victim and got carried away.

Scenario 3: Your client didn't plan anything in advance, something just came up and your client lost it and attacked, and that attack resulted in the other person's death.

Scenario 4: Your client was in the middle of another crime and the victim caught him in the act, and your client panicked and thought "oh, fuck, it's a witness! Let me do something about this!" and that's what he did in his panic.

Scenario 5: Your client knows murder is immoral and full well planned out his attack. However, your client also believes that God personally spoke to him through a Pop Tart and commanded him to commit this murder, and so your client believes he is an exception to the rule of murder.

Scenario 6: Your client is a teenage girl and the victim is an unborn child who has just entered the 3rd trimester. Your client had sought a legal abortion, but the clinic she went to had a doctor who believed abortion was immoral and thus kept postponing her appointment until she was into her third trimester, at which point he told her he could no longer perform the procedure, and your client panicked and had no choice. (....Okay, I got that from LAW AND ORDER, I admit it. So it's a stretch.)


These are all cases where your client is "guilty", but they are all very different cases. So instead of it being a case of "I know my client is guilty, but I need to defend him still, whatever shall I do," it's more like, "We know my client killed someone, so what I need to do is convince the jury it was more of a scenario 4 or 5 situation rather than a scenario 1 situation."
posted by EmpressCallipygos at 10:39 AM on December 22, 2008 [1 favorite has favorites]

The hypothetical I am trying to construct is a situation where you, as a defense attorney are convinced (to your own personal satisfaction) that your client is actually guilty of the crime with which he is being charged. There's no chicanery on the part of the police department, no issue about the client not knowing his rights, no problems with the client's mental capacity or any other mitigating factors.

It would be incompetence for a criminal defense attorney to consider discontinuing representation because he concludes that the client is guilty of the offense charged, because the defendant's guilt is not for the attorney to decide.

I am a criminal defense attorney, and this is perhaps a nuanced point that escapes many laypeople, but I have mentioned this before on Ask Metafilter. If you are a criminal defense attorney you will understand that we have an adversarial justice system, where the role of the defense attorney is to investigate the facts, present evidence at trial, seek to get evidence excluded that is offered by the prosecution, and argue to the fact-finder (which is a jury in a jury trial, or a judge in a bench trial) why the evidence properly introduced does not meet the burden of proof required to find your client guilty. It is not your job to decide your client is guilty or not guilty.

Furthermore, the fact of a confession --- even if the defendant gave the confession --- does not mean the defendant is guilty. It's not up to the defendant to decide that he/she is or is not guilty. That's the jury's role. Clients often come to me and tell me "I'm guilty" and my response is always, "You don't know whether you're guilty or not."

You're confused about the use of a confession. A confession, even if it were intelligently given without coercion and with full knowledge of a defendant's rights, is only one piece of evidence (undeniably important evidence) in a large amount of evidence that may be introduced at trial. The fact that there is a confession introduced into evidence is not necessarily dispositive of the case. The defendant may have confessed to a homicide, but it is the burden of the prosecution to introduce evidence to persuade the jury beyond a reasonable doubt that it was an unlawful homicide. Homicide is not inherently unlawful.

There is a strict division of labor in the criminal justice system. In a jury trial, the attorneys investigate the case and introduce evidence (examining and cross-examining witnesses) and make argument, the judge decides the law to be applied to a case and rules on evidentiary questions, and the jury decides the question of guilt. The scenario where the lawyer "realizes (to [his] own personal satisfaction) that your client is actually guilty of the crime" is unrealistic, because it suggests a misunderstanding of the criminal defense lawyer's role.

Now, I can imagine a situation where the attorney has such a personal abhorrence for a certain kind of conduct (child or animal abuse are common examples) that he would refuse to represent someone that he believed did knowingly engage in this kind of reprehensible conduct.
posted by jayder at 10:45 AM on December 22, 2008 [2 favorites has favorites]

EmpressCallipygos: That's a good point; my original hypothetical still allows for many possibilities. Assuming that your Scenario #1 was the case..."Your client knows murder is illegal and immoral, but still wanted to go ahead and kill the victim. He planned things out in advance, carried through with his crime, and was in his right mind the whole time -- and the whole time he persistently knew that what he was doing was illegal, and that what he was doing would result in another person being dead, but did it anyway, and then covered it up so as to evade capture....would that affect the way in which you proceed?

jayder & IronMouth: Thanks for the replies. It sounds as though you're saying that a defense attorney should put aside considerations of whether or not his client actually committed the crime with which he is charged. Is that a fair characterization, or is there more to it than that?
posted by DWRoelands at 11:04 AM on December 22, 2008

DWROelands: I think the point is that all criminal defense attorneys understand that sometimes their clients did, in fact, do whatever it is they are accused of. That may or may not make a person guilty -- there are exceptions, such as insanity, or self defense, that may make a person "not guilty" even when they've committed the act. Even if the client committed the act they are accused of committing, and there is no exception, a lawyer who has accepted the client is obligated to represent the person to the best of their abilities. In such cases, it might be easier to look at is part of defending a larger system. It is in society's best interests to have the system (as broken as it sometimes can be) defended, because if you ever end up needing the system, you'll be glad its there.

For people who are part of the legal system, there is more to it than just whether a person "did it" or not, and it's more than just "putting aside considerations." It is easy for me to see how people outside the system find this concept strange or difficult to understand. Having not been part of the system, I don't think I understood before law school.

You can refuse to take a case in the first place, as jayder says. A defense attorney may say "i'm not handling X type of cases." It would be harder to say "I'm only going to defend the innocent", because how do you know?

I also wanted to point out that sometimes this depends on where in the system a case is. In law school, I worked at a clinic devoted to appellate law. At the appellate level, sometimes it's even more obviously about defending the system. For instance, we might take on a case of a convicted criminal where there was new DNA evidence that they did not commit the crime. But we might also take on a case where there wasn't new evidence, but the cops or prosecutes did something untoward (withheld evidence, or destroyed evidence, for example), or where the defense attorney at the trial level committed malpractice (maybe he slept through the trial (actual case) or maybe she didn't interview the people the defendant suggested he should). In cases where the actors other than the defendant were "bad actors", to us it was about the system. Better one guilty man go free if that's what it takes to ensure lots of innocents don't get locked up, if that makes sense.
posted by dpx.mfx at 11:18 AM on December 22, 2008

To all those lawyers who say that you are still obligated to defend.

What if the admission of guit sends off such alarms of revulsion (let's say it is a horrible crime) that you just can't in your heart defend the way you should.

Shouldn't you then refuse to take the case because you can't fulfill your duties? Would you not then be obligated to NOT take the case?
posted by xetere at 11:30 AM on December 22, 2008

In Australia (probably the same elsewhere):

If you client admits to you he is guilty you are not allowed to put forward any other defence than guilty

So in Australia, if my client tells me that he killed the victim by using his divine power so that wounds appeared on the victim because he wished for there to be wounds, I have to enter a plea of guilty?

Or if my client tells that he shot the victim three times in the head, when in fact the victim was stabbed in the chest, I have to enter a plea of guilty?

Weird.
posted by ROU_Xenophobe at 11:36 AM on December 22, 2008

I am not an attorney, but this is not difficult.

In an adversarial system, defense attorneys are an important check on the police.

Say you know for a fact that your client is guilty -- not just that he told you, but that somehow you yourself saw your client, who has unique scars that would even distinguish him from an identical twin, commit the crime. Further, you are telepathic, so you could read his thoughts at the time and know his state of mind and so on.

You should still go in there and attack the admissibility of various pieces of evidence, and attack the credibility of the prosecution's witnesses, and force the prosecution to deal with other theories of the crime, and so on.

It is possible that at the end of the day, your client might walk. You should not think of this as "OMG there's a guilty guy free because I was too good a lawyer! O the injustice!"

Instead, you should think "The police and prosecution did a terrible, terrible job here. Much of their evidence was inadmissible, and much of what remained was of poor quality. What should happen when police behave improperly and render much of their evidence inadmissible, and when prosecutors present cases that are weak? The defendant should walk, that's what should happen. Even when it is this defendant."
posted by ROU_Xenophobe at 11:44 AM on December 22, 2008 [3 favorites has favorites]

xetere: as I said, you can refuse to take a case in the first place ("I don't work on murder cases/rape cases/child abuse cases/animal cruelty cases/your particular case/i'm not taking this case because I think you won't pay me/I think you look creepy"). You can also withdraw from a case for a variety of reasons (see ABA's model rules of professional conduct -- not applicable in all states but generally a good place to start - for some of the reasons). "I think he's guilty" is not typically one of those reasons. If your belief complicates your ability to represent, maybe. Partly it probably depends on how far along the case is -- on the eve of trial, a judge isn't likely to let you off the hook. Early on? More likely.

I feel like NPR did some good stuff on this in relation to the terror suspect trials -- there the defendant's didn't even WANT lawyers -- but I can't seem to find what I'm looking for.
posted by dpx.mfx at 11:47 AM on December 22, 2008

My understanding (IANAL - my wife, twin sister, best friend and cousin are) is that this question isn't really a matter of personal ethics. At the end of the day providing the best possible defense for your client is utterly essential to the system.

Its important to realize there's a complete flip to this question "If you're a prosecutor and not 100% sure the person you are prosecuting is guilty, would you still prosecute". Undoubtedly prosecuting attorneys would say "yes - to the utmost of my abilities" Not only would they prosecute but they'll throw every law at them they can.

This adversarial position is one of the key underpinnings of how our judicial system works.
posted by bitdamaged at 11:52 AM on December 22, 2008

Perhaps one of mefi's resident lawyers can comment on the duties of a prosecutor. This may make the defense's role in the process more clear.

My understanding (IANAL) is that whereas a defense attorney has a duty to defend their client's interests, the prosecutor has a duty to seek justice/truth. Note that these roles are not symmetric opposites. I suspect this is because a prosecutor has discretion in bringing a case, but the defense has no choice.
posted by ryanrs at 12:35 PM on December 22, 2008

I must disagree with bitdamaged about prosecutors' duty.

It isn't the "flip" of the zeal due from a defense attorney. Rather, a prosecutor's essential fidelity is to a more neutral standard: to bring only those prosecutions where evidence of guilt is beyond a reasonable doubt, a jury is likely to agree with that, and the interests of justice don't otherwise dictate leniency.

When it comes to the charges laid and the sentences sought, to seek the maximum at all times is gross abuse of authority. A prosecutor is supposed to seek a just sentence which balances all legitimate interests of a penal system: proportionate retribution, efficient incapacitation, effective deterrence, and the potential for rehabilitation and repentance.
posted by MattD at 12:37 PM on December 22, 2008 [1 favorite has favorites]

Thanks for the replies. It sounds as though you're saying that a defense attorney should put aside considerations of whether or not his client actually committed the crime with which he is charged. Is that a fair characterization, or is there more to it than that?

I'd say that is an unfair characterization because it focuses on "who did it"--which is not the point. "Who did it" is not the most important consideration that a defense attorney has. (unlike Ronnie Cochoran, I would not say it isn't a consideration at all. I would say a defense attorney may have a duty to try to work out a plea, in a case where the defendant admits guilt and the investigation and prosecution to date are clean, but frankly, I've never been in that position, myself.) So, "put aside who's guilty" is not a fair characterization of what the defense attorney does (and in my opinion, based on my experience as a defense attorney, it's not what a good or ethical prosecutor does either). A defense attorney's job is to protect the defendant from abuses of the process and, arguably, to protect him or her from continuing to make bad decisions where the law is concerned.

The largest abuse--and most common abuse--in the US criminal courts is the premise of your question: that anyone (other than the defendant) knows going into trial who is guilty and of what particularly statutorily-defined offense. The US criminal court system has as its most basic principal that thing we quaintly call "The presumption of innocence". No matter what anyone knows, we--the defense attorney, the prosecutor, the factfinder (be it judge or jury) and the judge (as the person in charge of the proceedings)--are supposed to face each day of the trial with the presumption that the accused is innocent of the accusation, unless and until, it is demonstrated beyond that level of doubt (which would give you serious pause in an undertaken of considerable importance in your personal affairs) is extinguished. Your primary function as a defense attorney is to fight like hell to ensure that someone, anyone in that courtroom, actually approaches the proceedings as if that were the case.

Your next function is to see that the other rights of the accused are protected. Then you are to see that the rules are followed: the rules of evidence, the rules of criminal procedure, the rules of your state's constitution, the rules of human decency. Then you are charged with the duty of preserving the record and any possible objection so that if you fail in any of those duties, the attorney who comes in after you can fix any mistakes. Then you are charged with the duty of going home every night and not taking those abuses of human and constitutional rights, those failures to follow the rules, those hideous miscarriages of justice (in either direction), and those mistakes out on your friends, your family or yourself.

At absolutely no point is it your responsibility to suss out the Truth. Ever walked in on a room of first graders arguing over who broke the rules of their made-up game? It's easier to sort out the truth of what happened there than it is for a defense attorney (and again, I would argue, for a prosecutor) to sort out the truth of what happened in most homicides. As a defense attorney, you're never going to see 1/4 of what the police saw in their investigation and you're lucky if you have half the information the prosecutor has. If you think you know the truth, you're wrong.
posted by crush-onastick at 12:38 PM on December 22, 2008 [2 favorites has favorites]

ryanrs: No, the prosecutor's job is not to find out the truth. The prosecutor's job is to examine what the evidence gathered in the investigation of an apparent crime suggests happens and then determine appropriate charges and level them against a rational target. It is his job present the evidence that appears to establish guilt. It is his job to do all of that within the confines of the US Constitution, his state's constitution, and the rules of criminal procedure and the code of professional conduct. Then, assuming he gets his conviction, as MattD points out, it is his job to see that all legitimate interests of the penal system are addressed in the sentencing phase of a trial.
posted by crush-onastick at 12:43 PM on December 22, 2008

DWROelands: I think the point is that all criminal defense attorneys understand that sometimes their clients did, in fact, do whatever it is they are accused of. That may or may not make a person guilty -- there are exceptions, such as insanity, or self defense, that may make a person "not guilty" even when they've committed the act. Even if the client committed the act they are accused of committing, and there is no exception, a lawyer who has accepted the client is obligated to represent the person to the best of their abilities.

Keep in mind, the elements of an offense often include both an act (the "actus reus") and a mental state ("mens rea"). So the fact that a defendant committed an act goes only part of the way toward establishing guilt.
posted by jayder at 12:48 PM on December 22, 2008

If you're a prosecutor and not 100% sure the person you are prosecuting is guilty, would you still prosecute [..] Not only would they prosecute but they'll throw every law at them they can.

I do not believe it is supposed to work this way (at least in the US). It is at times* reasonable and proper for a prosecutor to say "In the interests of justice, I will not pursue this case." It is much harder to imagine a defense attorney saying the same thing.

* For example, US attorneys who declined to pursue bullshit voter fraud allegations.
posted by ryanrs at 12:50 PM on December 22, 2008

No, the prosecutor's job is not to find out the truth. The prosecutor's job is to examine what the evidence gathered in the investigation of an apparent crime suggests happens and then determine appropriate charges and level them against a rational target.

That's what I meant by seeking truth/justice, as opposed to seeking convictions for their own sake.


It is his job present the evidence that appears to establish guilt.

I do not believe this is correct. Does the prosecutor not also have a duty to turn over exculpatory evidence? (Again, IANAL.)
posted by ryanrs at 1:01 PM on December 22, 2008

It sounds as though you're saying that a defense attorney should put aside considerations of whether or not his client actually committed the crime with which he is charged.

Why would one be in this line of work if that was the case. Frankly, I believe it is positively unethical to take a criminal case of any kind if you cannot do this.

Remember also that there are many interests a criminal defendant has. There are two phases to a trial, the detemination of guilt or innocence and the penalty phase. A guilty client has gigantic interests in limiting the amount of prison time they serve.

Shouldn't you then refuse to take the case because you can't fulfill your duties? Would you not then be obligated to NOT take the case?

Obligated to whom? Myself? My interests are not being adjudicated.

Here's the thing. When I take a case, the moment I agree to take it, I am ethically bound to work to advance the interests of the client. Why? Because I could be 100% convinced that the client committed the crime and I could be 100% wrong. It isn't up to me for a reason.

In Australia (probably the same elsewhere):

If you client admits to you he is guilty you are not allowed to put forward any other defence than guilty, if he insists that you put forward a defence of innocent you must excuse yourself from representing him

Definitely not the same here. That's barbarism. Of course I'm prejudiced--I think any system without jury trials or impartial judges (Code Napoleon!) is barbarism.
posted by Ironmouth at 1:11 PM on December 22, 2008 [1 favorite has favorites]

It is his job present the evidence that appears to establish guilt.

I do not believe this is correct. Does the prosecutor not also have a duty to turn over exculpatory evidence? (Again, IANAL.)

Turning evidence over as part of criminal discovery and presenting it before the finder of fact are two different things.
posted by Ironmouth at 1:15 PM on December 22, 2008

In Australia (probably the same elsewhere):

If you client admits to you he is guilty you are not allowed to put forward any other defence than guilty, if he insists that you put forward a defence of innocent you must excuse yourself from representing him

Definitely not the same here. That's barbarism. Of course I'm prejudiced--I think any system without jury trials or impartial judges (Code Napoleon!) is barbarism

I thought Australia was on English common law as the US. it never would have occurred to me that they didn't have jury trials. Did they get rid of them? (Obviously I know that there are differences between US law and other English common law countries, but still they are all a lot similar to each other than they are to continental, "civil code" countries, no?)
posted by xetere at 1:36 PM on December 22, 2008

So in Australia, if my client tells me that he killed the victim by using his divine power so that wounds appeared on the victim because he wished for there to be wounds, I have to enter a plea of guilty?

Or if my client tells that he shot the victim three times in the head, when in fact the victim was stabbed in the chest, I have to enter a plea of guilty?

Australian criminal barrister here...

The position in Australia is much the same as in the US and in other common-law countries. Questions of guilt are questions of fact and are for a jury to decide. It's not my job to divine if people are guilty or not, so I don't even bother. I may well tell them however that their instructions are inherently implausible and unlikely to be believed, or that the prosecution case is overwhelming, regardless of what they say they did or didn't do.

As has been mentioned above, in Australia there is a duty on behalf of all advocates to refrain from misleading the court. You can't put any proposition to the court that you either know to be false, or that is contrary to your instructions. You can't argue that the stabbing was in self-defence when your client tells you he has never there, for example. You can't argue identity if your client has told you he was present. Although in this latter case, you could still, as has been mentioned previously, 'put the prosecution to their proof' and require them to led the evidence of identity. However you would not be allowed to positively put any proposition that was contrary to your instructions that the defendant was present.

So in Australia, if my client tells me that he killed the victim by using his divine power so that wounds appeared on the victim because he wished for there to be wounds, I have to enter a plea of guilty?

Or if my client tells that he shot the victim three times in the head, when in fact the victim was stabbed in the chest, I have to enter a plea of guilty?

In the first example, I would be having the client assessed to determine that he was fit to participate in the trial. It's a silly example - no-one would act on those instructions. The second example is more difficult. The defendant's instructions in that case are that he is not guilty of the crime as alleged. He may be guilty of some other crime, or of no crime at all, but the murder he is charged with is the murder by stabbing the victim in the chest. Although in this case I'd be mighty tempted to get a psych report as well.

Prosecutors in Australia have an overriding duty of fairness and assistance to the court. A prosecutor is expected to be temperate, fair and above all scrupulously honest. If it were found out that you withheld exculpatory evidence from the defence your reputation would be shot. Your role isn't to seek 'truth', as the very question implies that there is always a 'truth' out there to be sought. Your job is to fairly present the admissible evidence in the case.

Many barristers in Victoria prosecute and defend, which means that the roles and obligations of each 'side' have to be very clearly defined. Someone who prosecutes like an arsehole won't be getting many defence briefs again.
posted by tim_in_oz at 1:36 PM on December 22, 2008 [2 favorites has favorites]

I think that tim_in_oz is to be belived re: Australian law. I found the other assertions from the Amsterdam lawyer above a bit confusing.

As for my discussion of Australian law and juries, I did not mean to indicate that Australia had abolished jury trials, but that my definition of barbarism included nations where no jury trials existed, such as some European nations.
posted by Ironmouth at 1:58 PM on December 22, 2008

There is an extremely wide gap between what the prosecutor has access to and what the prosecutor must turn over, although as a general constitutional principle, yes, the prosecutor has a duty to turn over exculpatory evidence. None of that means the prosecutor's job is to seek truth. (And truth is not justice. but that's the philosophical part.)

For instance, in Illinois, the rules of discovery in a criminal trial are not part of the code of criminal procedure (except for some rules about photographic line ups). They are Supreme Court Rules, mostly rule 412. In practice, this rule means that the state's attorney (SA) gives you the initial police report of the crime and these "summary reports" which purportedly summarize all the notes, interviews, and other investigations by the police officers. You also get any written witness statement that is signed by someone who will probably be called at trial. Sound like they're handing over everything? They're not. In practice you get a two page report for every 4-6 months of investigation. Often these reports refer to interviews with witnesses and other reports made in the process of investigating the crime that the SA will not turn over and the court will not require them to. Criminal discovery is significantly more limited than civil discovery. But other than a conflicting statement made by the defendant, or a confession by another party, there's not much that falls into the "must be disclosed as exculpatory" category and outside of lab results (and frankly, there aren't as many in most criminal cases as you might think), most of what's in the police officers' file needn't be shared because the investigation summary reports are. This practice may have changed since I was doing criminal work (2ish years ago) but not from what my friends in the trenches tell me.

Police, as well as the SA's, end up with a very very sketchy view of what happened. What the PD's (around here at least) get is a hurried summary of dozens of reports which combine to make that very sketchy view of what happened. To come even close to what information the SA gets, PDs have to run their own investigation, which they do not have resources to do.

In a perfect world, both sides have full access to the police investigation. Then each side takes that information to develop a picture of what happened and a legal theory of how to hold someone responsible. Then each side goes in front of a neutral factfinder who listens to both theories, fully believing that neither is true, until that factfinder is convinced enough that if it were his own personal self on the line he would accept the theory as true. Then the factfinder convicts or acquits accordingly. In this perfect world, neither the SA or the PD has a claim to truth or a duty beyond presenting--within the boundaries of our constitutions--a theory which tries to explain what happened. In this perfect world, you never ask yourself how you can defend this person because you are simply offering information in a manner that respects the rules and rights; the duty to make the right decision is someone else's. If you have stayed within the bounds, you will not have done anything to cloud the factfinder's task.

If anyone has ever actually participated in a criminal trial that went that way, I would love to hear it. I came close once. It was intense and, although it was the only capital homicide trial I ever participated in, it was the one during which I was most able to sleep.
posted by crush-onastick at 2:01 PM on December 22, 2008

To keep talking, of course, the problem with giving the PD full access is that the PD (or private defense attorney) does not get involved until someone has been accused. The SA is involved prior to that. And once a person is accused the clock starts counting down. So years may have passed between the crime and the SA formally accusing someone and the SA has time to absorb and reject or keep lots of information, but mere months pass between the formal accusation and the trial and even if the PD had access to those years' worth of investigative materials, the PD doesn't have that much time to sift through it. Nor does the PD have time to find everyone mentioned in the investigation. Even when the SA hands over names and last-knowns, you're lucky if you find one out of every five people who participated in the investigation.

sigh, I miss my old job
posted by crush-onastick at 2:10 PM on December 22, 2008

U.S. lawyer here. In answer to your questions:

1. It depends. If you're a public defender who's been assigned to represent the guy, then you can't withdraw even though you know he's guilty. If you're a private defense attorney, then you're absolutely free to withdraw as long as you're not close to trial. Such are the privileges of private practice.

2. Absolutely not. If you tell anyone--even your spouse---you're breaching the attorney-client privilege. You can get disbarred for that. The only exception is that if the client tells you he's about to commit a crime, then you have to try to disuade him and, if he refuses, disclose. The relevant rule here, in many if not most jurisdictions, is Model Rule of Professional Conduct 1.6.

3. (a) Depends on the facts of the case. (b) Absolutely not--the attorney-client privilege is, and should be, close to sacred.
posted by saslett at 6:35 PM on December 22, 2008

This is a pretty cool discussion, and I'm glad it's going so well.

crush-onastick: You said this.."Then you are to see that the rules are followed: the rules of evidence, the rules of criminal procedure, the rules of your state's constitution, the rules of human decency."

I can't think of a way to phrase this that doesn't sound combative, so I apologize in advance because it is not my intent to be so: Does "human decency" not include pursuing the truth?

I ask this because what I'm seeing in these answers is the idea that the truth is not relevant in the execution of a defense attorney's duties. I understand that all people at some points in their lives will choose to sacrifice the truth when it is in their best interests. What's difficult for me to understand is the proposition that defense attorneys simply don't care what the truth is. That not may be the best characterization, and I beg your patience.
posted by DWRoelands at 6:46 PM on December 22, 2008

Agreeing with the above- an attorney's job is to protect and defend their client's legal rights.
posted by gjc at 6:47 PM on December 22, 2008

What's difficult for me to understand is the proposition that defense attorneys simply don't care what the truth is.

DWRoelands, in many ways defense attorneys pursue truth more perspicaciously than do prosecutors.

Prosecutors are given a task: prove beyond a reasonable doubt that defendants are guilty of crimes charged. Defense attorneys' challenges are more complex. They must probe the "truth" of evidence, the accuracy of eyewitnesses (which is notoriously flawed), and the evolution of events leading up to, during, and after a crime.

Truth is many-faceted. It's a Rashomon tale. Defense attorneys strive to ensure that truth be explored from as many angles as possible, so their clients are not punished wrongly or unduly harshly.
posted by terranova at 7:36 PM on December 22, 2008

One of my law school mentors summed it up quite well for me: "not guilty" and "innocent" are two very different concepts.
posted by pril at 8:43 PM on December 22, 2008 [1 favorite has favorites]

the truth is not relevant in the execution of a defense attorney's duties. . .

I think the problem is that you're getting too hung up on the concept of Truth with a capital T. Why do you think the defense attorney, or for that matter the prosecutor, or the police, or the judge, will ever know what the Truth is? Many of the people posting here have explained the problems of trying to find the Truth. Instead, you present facts and arguments, and both sides present theories of the truth, neither of which is likely to actually be the Truth. The fact-finder then decides what it thinks the truth is based on the facts, evidence, law etc., and if the system has worked the truth as determined by the fact-finder is close to the Truth.

Anyother way of looking at it. If you were accused of a crime, would you want your attorney to decide that you had committed the crime and then refuse to represent you or inform someone? Why would that system be preferable to having two sides present evidence to a neutral fact-finder, usually consisting of many people? Wouldn't you rather have the checks and balances built into the adversarial system?
posted by Mavri at 9:40 PM on December 22, 2008

What's difficult for me to understand is the proposition that defense attorneys simply don't care what the truth is.

No. We care what the truth is, but we understand the difference between caring what the truth is, and doing our jobs.

-- As a community member, I may think "my client is guilty as hell, it's not altogether a bad thing that he ended up getting convicted." I have had clients that I believed were guilty, for whom I did my absolute best, and when those efforts failed, I went home and told my wife, "I'm not exactly upset that such-and-such is in jail because he probably ought to be." I can honestly say I have never fought any less hard for someone when I personally believed they were guilty, because (a) I realize it is not my role to decide whether they are guilty, and (b) my role is to fight for them regardless of what I believe.

-- As a lawyer, I can divorce my personal feelings from my job. As a professional, it's my job to fight for this person, regardless of whether I as an individual think he is guilty. Think of the criminal defense attorney as being akin to the surgeon who is trying to save the life of an armed robber who was shot by a victim. As a community member, the surgeon may think the death of the robber will not be an altogether bad thing. But as a surgeon, she is going to try like hell to save the life of the robber.

I think what this comes down to, that has been discussed on Metafilter before, is what it means to be a professional. A doctor is obligated to do her best to save the life of a patient, no matter what the patient has done or who the patient is. A lawyer is obligated to defend a client regardless of what the client has done. And it is understood that, as a fundamental matter of human dignity, that patients and clients are entitled to a treatment or a defense regardless of who they are or what they have done.
posted by jayder at 10:28 PM on December 22, 2008 [3 favorites has favorites]

Also, it's not that hard to put aside your personal feelings and argue a position you do not believe. A bit like playing devil's advocate. If you understand the issue, you ought to be able to argue either side.
posted by ryanrs at 11:49 PM on December 22, 2008

I ask this because what I'm seeing in these answers is the idea that the truth is not relevant in the execution of a defense attorney's duties.

It's no more relevant than it's the job of a chemist (phamacist) to decide (for example) unmarried women shouldn't be allowed access to birth control for any reason other than conflicts with other medication the chemist is aware of.
posted by rodgerd at 1:42 AM on December 23, 2008

ryanrs: You said "Also, it's not that hard to put aside your personal feelings and argue a position you do not believe. A bit like playing devil's advocate. If you understand the issue, you ought to be able to argue either side."

That's a really excellent and relevant point, especially since I often do enjoy playing the devil's advocate in issue discussions. I think I would have a difficult time arguing a position I did not believe when the consequence of winning the argument would be that a monster goes free; escaping punishment for his crimes and allowed to continue perpetrating them. It's good that I'm not a lawyer. :)

Thank you all very much for your insights. This has been a very informative conversation!
posted by DWRoelands at 3:56 AM on December 23, 2008

DWRoelands : Of course the pursuit of human decency includes the pursuit of truth.

A defense attorney doing her job well does not obfuscate (and neither does a prosecutor). However, the pursuit of truth requires that the person charged with finding "the truth" be neutral, not on either side. Thus we have an SA advocating one theory of what happened, emphasizing certain information which has come out in an investigation, and we have a PD, either advocating a different theory with emphasis on different information OR simply challenging the theory the SA is using to link together the information.

It is not that truth is not relevant, but that you don't know the truth and it's not your job to decide what the truth is. Thinking you know what the truth is encumbers your ability to keep the process clean (which, I will say again is the foremost duty of both the prosecutor and the defender and the judge, as administrator of the proceedings); it encumbers your ability to question the evidence, and it distorts your ability to analyze the theory.
posted by crush-onastick at 7:16 AM on December 23, 2008

I believe you may not allow perjury. So, if the client is guilty, and testifies, and says "I didn't do it." what happen?
posted by theora55 at 12:23 PM on December 23, 2008

I think there is a fundamental misunderstanding about the nature of the adversarial criminal justice system here. It is not concerned in any way, shape or form with establishing the truth of a situation. It is solely concerned with whether or not a prosecutor can establish, beyond reasonable doubt, the elements of a given offence.

As a poster pointed out above, "innocent" and "not guilty" are two very different concepts. The verdict of 'not guilty' encompasses the both the concept that the accused did not commit the act, and also that the prosecution failed to prove the charge to the requisite standard.

Many successful criminal defences have been run on the basis that whilst the defendant may be guilty as hell of doing *something*, the evidence that the prosecution can present to the court fails to prove the case.

As a prosecutor, I ask myself all the time "assuming the defendant did it, do I have the evidence to prove it". If the answer is no, I'll be recommending the withdrawal of charges. You may know on an instinctive level that the guy did it, but that's not your job.
posted by tim_in_oz at 1:24 PM on December 23, 2008