How much does a defense lawyer know?
September 15, 2006 2:03 PM   Subscribe

If a person is accused of a crime, and committed said crime but is confident that there is little or no evidence and plans to plead not guilty, do they tell their counsel that they did it?

This is one of those things that I wonder about sporadically and I want to ask it while I remember to ask it. I've never committed any crimes personally except caring too much and don't plan on ever being in a situation like this.

Let's say that I am accused by the police of, say, a bank robbery. And somehow I know that there is no physical evidence of my robbing the bank and I have an accomplice that will provide a credible alibi.

When I am alone with my lawyer, do I tell him a story based on my alibi, or do I tell him that I did it but here's why it would be difficult to convict me?

I have just always wondered if the lawyer sitting next to an accused criminal, in the instances where the accused is guilty of the charges but claiming innocence, knows what's up.

I am not interested in it from a moral standpoint (everyone has a job to do and most everyone has to do some degree of lying to get through life anyway), I am merely curious how it works.
posted by Mayor Peace Love and Unity to Law & Government (27 answers total) 5 users marked this as a favorite
I've always operated on a policy of full disclosure with my attorneys.
posted by Roach at 2:15 PM on September 15, 2006

Well, some lawyers won't represent you if you tell them you're guilty, others will. The nature of the crime is also important, although a lawyer might not have a problem representing you after you told him you were guilty of some white collar crime, murder might be another story!
posted by Chessbum at 2:16 PM on September 15, 2006

IANAL and have no experience with this, but I thought that's the whole point of attorney-client priviledge. A lawyer cannot be forced to divulge any information revealed to him/her by a client. Therefore, a guilty client would probably be better off telling the attorney the truth and letting the attorney figure out how best to defend the case. Whether hardened criminals actually trust their attorneys in real life is something I don't know.
posted by Durin's Bane at 2:19 PM on September 15, 2006

Best answer: I can answer this based on being friends with criminal defense attorneys since I too asked them this question!

When I am alone with my lawyer, do I tell him a story based on my alibi, or do I tell him that I did it but here's why it would be difficult to convict me?

The former. According to them if the defendant starts saying "Actually I did do it but..." then you stop them right there and tell them you are defending them because they are innocent and this will not go well if even they (the defendant) do not believe in their own innocence and perhaps we should plead guilty instead, eh?

This may vary by attorney though and their particular scruples.
posted by vacapinta at 2:20 PM on September 15, 2006

It is the duty of a defense attorney to represent any and every defendant. Lawyers are advocates; justice is the responsibility of the judge and jury.

If defense lawyers only defend people they think are innocent, then they are substituting their own judgment for that of the judge and jury, and thus are subverting the system.

The basic assumption of the system design is that the truth is best determined by listening to two deliberately biased advocates debating the merits of the case. Out of that debate, the disinterested jury will then be able to make an informed decision. If the defendant is guilty then if everything goes correctly the prosecution's case will be strong and the jury will decide to convict despite the best efforts of the defense attorney.

And if the prosecution's case is weak, the defense attorney should prevail, if for no other reason than to inspire the police and prosecutors to do a better job the next time.

So strictly speaking, it shouldn't actually matter to the defense attorney whether his client actually is guilty or innocent. Either way, the defense attorney should do his best to gain acquittal.

The attorney/client relationship should be based on trust. That's why communications between them are privileged. If there is a degree of distrust between the two, the attorney's performance will probably not be as good. And if he himself is deceived about the situation, the case he makes may be more vulnerable to destruction by the prosecutor.

Therefore, in the ideal case you should tell your attorney the truth, even if you actually did what you're accused of.
posted by Steven C. Den Beste at 2:23 PM on September 15, 2006 [2 favorites]

It's a very complicated question. Unfortunately I don't have time for a treatise. But in general (setting aside, as you say, the moral aspects), the lawyer has no legal duty to disclose a confession (in fact, doing so would be a violation of privilege). However, a lawyer cannot knowingly present testimony or evidence he or she knows to be false -- so, for example, once told, the lawyer couldn't put the client on the stand and ask whether the client committed the crime (assuming the client will testify that he did not). In your example, that may also make it difficult to introduce evidence of the admittedly false alibi.

I believe most states say that a lawyer may, but does not have to, advise authorities of their client's intent to commit a (future) crime.
posted by pardonyou? at 2:24 PM on September 15, 2006

Ethically, an attorney should not allow a client to present false or misleading evidence. Thus, if you tell your attorney, "I did it, but Bob will give me an airtight alibi," then the attorney should not allow either you or Bob to testify. The attorney could still continue to represent you without arguing a theory that you did not do it and Bob's your alibi, basically by attacking the evidence and witnesses presented by the prosecution.

That's all based on the ethical rules, though, not reality. In real life, I know that some attorneys won't even ask "did you do it?" because they would rather not know.
posted by MrZero at 2:28 PM on September 15, 2006

My attorney never asked.
posted by JohnnyGunn at 2:29 PM on September 15, 2006

And if he himself is deceived about the situation, the case he makes may be more vulnerable to destruction by the prosecutor.

To be clear, the defense attorney is NOT making a case. The prosecutor makes cases. The role of a defense attorney is to sow doubt.
posted by vacapinta at 2:30 PM on September 15, 2006

I asked this very same question to an attorney friend of mine -- what happens when a criminal just goes to an attorney and says, "Look, I did it. Here's exactly how I did it. Here's my fake story. Now get me out of here."

If it's a privileged conversation, the attorney cannot share it with the court. But the attorney is not required to take your case. He can recuse himself for any number of reasons, including, "I just don't want this case." At the very least, you will still get a public defender from the court, but that attorney isn't *required* to help you, either -- you'd keep doing this dance until, eventually, you would get an attorney that would be willing to help you.

That being said, and although some will anyway, the attorney cannot LIE for you -- bend, stretch, fold and spindle the truth, but not lie.

Most good attorneys, when confronted with the truth, will try to steer their clients toward plea-bargaining or some other defense that doesn't rely on a complete fabrication. Even the O.J. attorneys danced around the subject of what exactly O.J. was doing at the time of the murder, and instead focused on the imaginary problems of the prosecution's evidence.
posted by frogan at 2:32 PM on September 15, 2006

By the way, that's why I really do believe that Johnnie Cochran was the hero of the OJ Simpson case. IMHO the best summary of that case I've ever heard is that "the police tried to frame a guilty man." I think OJ did it (and let's not turn this thread into a debate on that point; we'll stipulate that you think I'm wrong and let it go) but the evidence collected and presented by the State in the case was deeply flawed and some of it (e.g. the legendary glove) was clearly fabricated.

Our system has a presumption of innocence in criminal cases; it was the job of the State to prove that OJ did it -- and clearly the State did not do so. Cochran shredded the State's case, and the jury rightly decided not to convict.

I suspect that Cochran himself believed that OJ was guilty. But that doesn't matter; it was still Cochran's duty to the system to try to get OJ off -- and he did do so.

It doesn't mean he's complicit in a miscarriage of justice. Responsibility for the failure to gain a conviction in this case is wholly on the police and prosecutors, who botched the case big-time.

Cochran prevailed in the case because the prosecution was incompetent. For him to try to throw the defense in order to allow his client to be convicted anyway would have been a miscarriage of justice. That's not how the system is supposed to work.

No one has ever created or even proposed a viable system of criminal justice that never makes mistakes. But the British jury system is certainly one of the better approaches. And one of the foundations of the system is the defense attorney. That's why the Sixth Amendment was included in the Bill of Rights:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
posted by Steven C. Den Beste at 2:36 PM on September 15, 2006 [2 favorites]

Both of Steven's answers are dead on. Thanks for typing, so I didn't have to =)
posted by mmdei at 2:45 PM on September 15, 2006

pardonyou? and MrZero are correct --

Defense lawyers are generally okay with defending people who might be guilty or even people who they know for sure are guilty. And attorney-client privilege is very strong. That's not usually the problem.

What can be a problem is if somehow knowing that the client is guilty interferes with the defense lawyer presenting certain evidence. A lawyer is ethically not supposed to present evidence or testimony to the court that she knows is fabricated.

(This is different from simply pointing out the flaws or the absences in the prosecution's evidence. That's fine, even if the lawyer knows for sure that the client committed the crime.)

So, generally (and, of course, hypothetically), if the case is going to go to trial, and you plan on testifying that you didn't do it, or there's an alibi witness who will testify and is making it up, if you tells your lawyer that you did it, or that the witness is lying, the lawyer won't be able to introduce this evidence.

In some cases, if there is too much conflict between defending the client and the ethical issue, then the lawyer has to withdraw.
posted by ClaudiaCenter at 3:06 PM on September 15, 2006

Attorney-client privilege. OJ. If it's a skilled lawyer the truth doesn't matter.
posted by mynameismandab at 3:34 PM on September 15, 2006

Defense lawyers and PD's with scruples will simply refuse to take your case, in the example you provided. (And by "you" I don't actually mean you, so don't take this personally!) Since (a) you glibly admitted to a serious felony, and are presumably refusing a plea bargain, and (2) you think you committed the perfect crime, like all dopey criminals (if there's no evidence linking you to the crime, then why were you arrested/indicted, Einstein?). You'll be stuck with a lawyer who (a) is just after your money, (b) has no morals, and (c) also thinks that there's such a thing as a perfect crime -- which means he's even dumber as you.
Have fun, see ya in 20 years!
posted by turducken at 3:49 PM on September 15, 2006 [1 favorite]

Turk: or the lawyer might feel that the law is unjust and will therefore work even harder for your case.
posted by mmdei at 3:51 PM on September 15, 2006

No, that's not correct. The system is absed on the assumption that both lawyers are skilled, so that factor will cancel out.

Of course, here in the real world you sometimes do get incompetents on one or both sides. All you can do is to try to weed such ones out of the system, one way or another.
posted by Steven C. Den Beste at 3:53 PM on September 15, 2006

Obviously, there are some lawyers who don't give a shit about the truth, and want to do what's in their client's interest, period. Take the (fictional) lawyer, Levy, from The Wire. He openly discusses crimes with his clients and has no pretense to purity at all. He's not real, but obviously there are people like him.

Then you can look at Alan Derschowitz as depicted in Reversal of Fortune. Not only did he not want to hear about his client's guilt, he didn't want to hear about his client's innocence. He felt that if he listened to an alibi, then he would have to integrate that alibi into his defense, and he wanted more flexibility than that. Better if he could just come up with his own hypotheticals to show reasonable doubt than have to use the story his client came up with.

...which leads to a related point, which is: you don't give your lawyer your iron-clad alibi, not because it would be wrong, but because you are not a lawyer. Your alibi might not be as good as you think.
posted by bingo at 4:10 PM on September 15, 2006

The system can tolerate a certain percentage of defense lawyers who refuse to represent guilty clients. But if all defense attorneys do so, then it means they collectively have usurped the role of judges and juries in determining guilt and innocence in our legal system, and the role of the judge and jury in the system will be reduced to rubber stamping the judgment rendered by defense attorneys.
posted by Steven C. Den Beste at 4:29 PM on September 15, 2006 [1 favorite]

IANAL, and IHNBTTLS (I have never been through the legal system), but I believe a lot of lawyer-client conversations deal with hypotheticals.

Your lawyer says "you've been accused of robbing the bank on Tuesday at 2.15" and you say "well, what if I had a friend who would swear that I was playing pool with him from one till four?" and your lawyer says "well if you did have such a friend, that would help" -- or you might even say "what if I had robbed the bank but I was certain there was no evidence?" and so on.

That way the lawyer never has to face the ethical question directly.
posted by AmbroseChapel at 5:44 PM on September 15, 2006

It depends on a large number of factors, including what the preference of your lawyer is. Some will never want you to answer the $64,000 question (more for a long trial :-) ) because it will hinder their tactics in trial.

turducken is right about one aspect - if there is no evidence, why have you been arrested? It's not a silly point. And it leads to one of the probable scenarios: You hire your first lawyer, tell them everything. If they say that you (and your perjuring alibi witness) will never need to testify because it is such a weak case - great for you. If in the course of trial prep, it becomes clear that you will need to get on the stand and commit perjury because there is more evidence than you thought - your lawyer will tell you they can't represent you anymore if you insist on lying. You then hire your second lawyer and tell them only the alibi version of events, and hope you're a better perjurer than you were a robber.
posted by birdsquared at 8:36 PM on September 15, 2006

never lie to your lawyer about anything ... answer all questions he asks truthfully

this does not mean he's going to ASK you if you "did it" ... or that you should volunteer that information ... but it does mean that you don't give him a bunch of bullshit information for him to present as evidence only to be blindsided by a refutation of your obvious lies

i've never been a criminal defendant, so i've never had this conversation directly, although i was involved in a lawyer's interview with my old girlfriend over a dui case ... what he wanted more than anything was the facts ... what happened, who said what, what the police did ... he made us write it out for him

needless to say, any lies ... like, "i wasn't drinking", would have totally screwed up his defense and perhaps pissed him off

another story ... i was a witness in an armed robbery case ... and the defendent, for reasons i'll never understand, chose to cross examine the witnesses himself ... he did allow his lawyer to make the closing statement and his lawyer did his best to refute everything he could and make a good sounding case as to why the guy was innocent

here's the funny part ... while the jury was deliberating, the prosecutor offered to buy we two witnesses a cheap lunch at a bar down the street and the defense attorney came along ... we all started discussing the case ... his defense attorney referred to the defendant as a "stupid asshole" for representing himself and not pleading in the first place and he and the prosecutor speculated on how much time he'd get ... so, the defense attorney knew he was guilty, obviously ...

45 minutes later, the jury convicted him

ps - the dui was bargained down to reckless driving ... unique circumstances and the fact that we both gave a detailed account of what happened with no lies
posted by pyramid termite at 9:36 PM on September 15, 2006

In England a lawyer cannot 'run' a defence which s/he knows is untrue. So if the client tells the lawyer he did it, the lawyer is then prevented from putting to the court evidence which s/he knows is false, such as alibi evidence. All the lawyer can do is attempt to discredit the prosecution evidence.

In my experience (it's a while since I practised criminal law), an innocent (and wrongly accused) client will always say "I didn't do it" and will do all they can to assist their own defence. The guilty client usually says 'make them prove it'. An 'experienced' criminal will know not to tell his lawyer if he did or didn't do it, as he knows it can hamper the way his defence is conducted.
posted by essexjan at 11:54 PM on September 15, 2006

In my State (of Australia) a lawyer cannot lie to the court or mislead it. A lawyer that is found to have done this may very well lose his or her license. As other posters have said, the lawyer can force the prosecution to make its case - the suspect is presumed to be innocent and the prosecution must prove otherwise.

It's worth keeping in mind that most people don't know the law very well and they may say that they're guilty of a crime when in fact they are not guilty. To use an extreme example, a client may think they're guilty of murder when in fact they are only guilty of manslaughter. This is why lawyers can't take the client at their word when they say they're guilty.

Lawyers have an equally strong duty to preserve their client's confidences. Suppose the client blurted out his alibi in court. The lawyer can't tell the court that the client is lying. The lawyer must tell the client that he or she must correct the court's false impression, and if the cleint refuses to grant permission then the lawyer must resign from the case rather than either mislead the court or betray a client's confidence.
posted by Joe in Australia at 6:29 AM on September 16, 2006

Tell the lawyer everything. To a lawyer, what matters is not your guilt or innocence, but what can be proven in court.

Besides, by failing to tell your lawyer the truth, you may also be neglecting to tell him other pieces of information that could help you win the case.
posted by Afroblanco at 9:00 AM on September 16, 2006

(I should also mention that I am not a lawyer)
posted by Afroblanco at 9:01 AM on September 16, 2006

I believe lawyers may not commit or assist with perjury. I also believe that the profession of law in the US is ethically bankrupt. Yes, I know many lawyers with good ethics, but more who have low or no scruples.
posted by theora55 at 5:50 PM on September 20, 2006

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