Defence lawyers

splashthecash

Ok - before I write this..let me state that this question is purely coming from my very limited knowldge of the law via TV\movies etc. That may not amount to much but humour me..maybe the protrayal of defending laywers through media is actually pretty close, i don't know.

My question is: A defense lawyer is representing a guy acccused of murdering his wife for example. As far as I am aware, this lawyer\client confidentiality thing is true so going on that, say the accused admits to the lawyer that he did it. How can the lawyer, ethically represent this guy when he knows he perpetrated the crime. Is he not, facilitating the release of a murderer - how could he live with himself if he did end up getting him off the charge and released?

splashthecash

splashthecash wrote: »

My question is: A defense lawyer is representing a guy acccused of murdering his wife for example. As far as I am aware, this lawyer\client confidentiality thing is true so going on that, say the accused admits to the lawyer that he did it. How can the lawyer, ethically represent this guy when he knows he perpetrated the crime. Is he not, facilitating the release of a murderer - how could he live with himself if he did end up getting him off the charge and released?

If a client tells a barrister that he committed a crime then the barrister is required to tell him that he cannot put forward a positive defence in his favour and can only put the State to proof.

In regular English that means that the lawyer cannot tell the Court that Mr X didn't kill his wife but he can still require the State to properly make their case. It's an important part of the justice system that nobody is denied their liberty unless the State has proven beyond a reasonable doubt that the accused has committed the crime. The defence lawyer has a role to play in that even when his client has admitted the crime privately to him. He has to assist the processes of the Court by ensuring the State lawyers do their job right. He does this through properly examining the witnesses, challenging evidence where necessary and "putting the State to proof".

The defence lawyer must do his job, just as the State lawyer must do their job, and then it is up to the jury to decide upon guilt. It's not a matter of conscience it's a matter of a fair process for everyone.

Reloc8

splashthecash wrote: »

How can the lawyer, ethically represent this guy when he knows he perpetrated the crime.

Key word in bold.

splashthecash wrote: »

how could he live with himself if he did end up getting him off the charge and released?

Readily, sleeping like a baby, on a bed of money.

:pac:

Seriously, everyone's a guardian of their own conscience, and no one elses.

FreudianSlippers

Reloc8 wrote: »

Readily, sleeping like a baby, on a bed of money.

:pac:

You must be doing better than me... I find my bed of coppers is quite uncomfortable

seamus

I remember hearing an interview with an English lawyer when that question was asked - how do you defend someone who has admitted they're guilty - and she stated that she always exercises the right in that instance to decline to carry the case any further, even if she was court-appointed.
She also admitted that she found it much more difficult to defend someone when she's certain that they're innocent because the pressure is enormous.

I'm not sure if solicitors in Ireland have the same right to "bow out" of a case?

If I were a solicitor, I don't think I could stand to know that I helped a guilty person walk free, regardless of the legal niceties around the state having to prove their case and so forth. There's legal guilt and actual guilt.

johnnyskeleton

Deleted User wrote: »

If a client tells a barrister that he committed a crime then the barrister is required to tell him that he cannot put forward a positive defence in his favour and can only put the State to proof.

If a client tells his barrister that he is guilty, then the barrister should advise the client to enter a guilty plea. That is the first duty of barristers in such a situation.

Where a client chooses not to accept such advice and maintains that they wish to plead not guilty, a barrister can offer to withdraw from the case and let some other barrister and/or solicitor deal with the case, unless this would prejudice the client. The barrister can tell them that if he is to remain in the case, he can only act for the client on the basis of testing the proofs and putting forward legal argument. He can neither put forward a positive defence i.e. call the client, nor can he suggest that the client is innocent in the course of cross examination etc.

In practical terms, anyone who tells their lawyers that they are guilty will usually want to plead guilty before the court and therefore accept the advice to plead guilty. However, if there is a technical legal defence e.g. a mistake on the warrant, it is still open to them to challenge this.

seamus wrote:

If I were a solicitor, I don't think I could stand to know that I helped a guilty person walk free, regardless of the legal niceties around the state having to prove their case and so forth. There's legal guilt and actual guilt.

Really? If you knew that there was a problem with the prosecution case you wouldn't tell the client? Moreover, what about situations where a person believes themselves to be guilty when in fact they are not (e.g. they are accused of doing something that is not in fact a crime, or which is impossible such as stealing their own property) or where they want to plead guilty because they just don't want to deal with the criminal process anymore?

Reloc8

seamus wrote: »

There's legal guilt and actual guilt.

Correct. And the courts/law deal with the former only.

littlemac1980

I love that scene in Boston Legal where the Judge appoints Denny Crane to defend a rapist, and the rapist openly boasts about his crime to Denny during his consultation.

Denny attempts to pass the case on to an eager junior at his firm, but the Judge isn't impressed, makes bits of the junior, and insists he'll have Denny struck off if he doesn't appear for the Defendant.

So during the next consultation, Denny reaches into the drawer on his desk, pulls out a 9mm, and shoots the Defendant in the Knee, when the cops burst in, he drops the gun and shouts 'He came right for me I was defending myself'.

dermot_sheehan

The Northern Bar have promulgated express ethical rules to cover this situation:

http://www.barlibrary.com/filestore/documents/Appendix%205%20Guidance%20applicable%20when%20a%20client%20confesses%20Sep%2010.pdf

seamus

johnnyskeleton wrote: »

Really? If you knew that there was a problem with the prosecution case you wouldn't tell the client?

Morally? No. If someone admitted having committed a crime to me (let's say murder to remove any ambiguity), if I were a solicitor I believe that I would morally tell them to plead guilty or I would drop the case. I couldn't morally/ethically bring myself to give them any assistance to their defence on a legal technicality. To me, it doesn't matter if the prosecution is flawed when the guy is factually guilty. I would withhold any "flaws" I was aware of in the prosecution because a greater good is being served.
But then, I'm not a solicitor so I don't know what the legal obligations/ramifications are.

Of course, in a more general sense this doesn't hold up because the entire point of the court system is to establish guilt. But on an individual basis, if I was aware of and assured of their guilt*, I would have no moral basis on which to defend them.

* I think that addresses the two questions you had later on

seamus

seamus wrote: »

Of course, in a more general sense this doesn't hold up because the entire point of the court system is to establish guilt. But on an individual basis, if I was aware of and assured of their guilt*, I would have no moral basis on which to defend them.

* I think that addresses the two questions you had later on

You do realise people confess to crimes that they didn't commit on a quite regular basis?

johnnyskeleton

seamus wrote: »

Morally? No. If someone admitted having committed a crime to me (let's say murder to remove any ambiguity), if I were a solicitor I believe that I would morally tell them to plead guilty or I would drop the case. I couldn't morally/ethically bring myself to give them any assistance to their defence on a legal technicality. To me, it doesn't matter if the prosecution is flawed when the guy is factually guilty. I would withhold any "flaws" I was aware of in the prosecution because a greater good is being served.

Taking your example of a murder case, what if there was an assault in a pub where B pushes into A and A then punched B in the face. B staggered back for a moment then collapsed. He subsequently died of a brain haemorrage, but had no other injuries to his head. When A is questioned by the Gardai he admits exactly that and when he goes to his lawyers with the book of evidence he tells them "I did exactly what it says on the book of evidence, I know I overreacted - I am guilty."

Now, supposing out of sheer devilment or fear of not doing their job correctly, the solicitor/barrister reads the pathologists report. In it, it says that the brain haemorrage could be related to the punch but it might not be. Supposing they do some digging and it transpires that there is an expert neurosurgeon who has conducted research and concludes that this type of brain haemorrage is nearly always caused by genetic factors and without causing fracture to the skull, a punch to the face would not have caused nor even triggered the haemorrage and it is most likely that he suffered the brain haemorrage moments before staggering into A and A's punch is at best a s.2 assault.

So in those circumstances, is it morally wrong to put the state on full proofs? Are you being morally superior by simply assuming that the accused has sufficient knowledge to pronounce themselves to be guilty?

seamus wrote: »

But then, I'm not a solicitor so I don't know what the legal obligations/ramifications are.

Well to be honest, a solicitor who doesn't advise clients is like a doctor who refuses to diagnose illnesses.

seamus wrote: »

Of course, in a more general sense this doesn't hold up because the entire point of the court system is to establish guilt. But on an individual basis, if I was aware of and assured of their guilt*, I would have no moral basis on which to defend them.

* I think that addresses the two questions you had later on

Don't pretend that it is immoral to defend someone in such circumstances. Morality is to do what is right, not to simply take the path of least resistance. In a way, it is not an issue of morality, more a question of how you percieve yourself. Everyone wants to be the good guy, but few seem to understand that to really be the good guy you may have to appear like the bad guy.

But you still haven't answered my question, what if someone told you they were guilty but for one reason or another you knew that in law they were not?

jblack

Deleted User wrote: »

If a client tells a barrister that he committed a crime then the barrister is required to tell him that he cannot put forward a positive defence in his favour and can only put the State to proof.

In regular English that means that the lawyer cannot tell the Court that Mr X didn't kill his wife but he can still require the State to properly make their case. It's an important part of the justice system that nobody is denied their liberty unless the State has proven beyond a reasonable doubt that the accused has committed the crime. The defence lawyer has a role to play in that even when his client has admitted the crime privately to him. He has to assist the processes of the Court by ensuring the State lawyers do their job right. He does this through properly examining the witnesses, challenging evidence where necessary and "putting the State to proof".

The defence lawyer must do his job, just as the State lawyer must do their job, and then it is up to the jury to decide upon guilt. It's not a matter of conscience it's a matter of a fair process for everyone.

Spot on Kayroo, often the best defence is a lack of prosecuting firepower.

if the defendant is insistent proffering an innocent plea and brings into evidence untruths for which the lawyers have knowledge then they are perfectly entitled to come off record.

Kosseegan

seamus wrote: »

Of course, in a more general sense this doesn't hold up because the entire point of the court system is to establish guilt. But on an individual basis, if I was aware of and assured of their guilt*, I would have no moral basis on which to defend them.

* I think that addresses the two questions you had later on

The entire process of the court system is to establish innocence. There is a presumption of innocence. It is for the prosecution to overcome that. There is a requirement for a fair trial. A person may admit guilt to protect someone else. Putting the prosecution on proof of their case is perfectly reasonable and sensible. It is not for the lawyers to proceed on the basis of their own view of the innocence or guilt of the accused. The decision as to who is guilty is a matter for the tribunal of fact. Withholding evidence tending to exonerate the accused by the prosecution would result in an unfair trial. It is just as objectionable as tendering false or manufactured evidence on behalf of the accused.

seamus

Deleted User wrote: »

You do realise people confess to crimes that they didn't commit on a quite regular basis?

I covered that. I do absolutely realise this, which is why when we take a general overview it's never possible to say that anyone is guilty of any crime with 100% confidence. However, on a one-to-one basis, it would theoretically be possible that I am 100% convinced that the guy has done what he says he has done.

johnnyskeleton wrote: »

Taking your example of a murder case, what if there was an assault in a pub where B pushes into A and A then punched B in the face. B staggered back for a moment then collapsed. He subsequently died of a brain haemorrage, but had no other injuries to his head. When A is questioned by the Gardai he admits exactly that and when he goes to his lawyers with the book of evidence he tells them "I did exactly what it says on the book of evidence, I know I overreacted - I am guilty."

All you're doing is trying to posit shaded grey examples. I'm talking about a case where a guy walks up to someone with a knife and shoves it through someone else's brain, in full sight of multiple witnesses.
He pleads not guilty, but he tells me in discussion that he's absolutely guilty.
According to Kayroo's description, at that point I should be examining the prosecution's case and looking for legal errors - i's missing dots and so forth - because I know the guy is guilty.

My opinion is at that point I would have to walk away because I couldn't in all conscience work to secure the man's freedom. I'm not denying him any right to be tried or be saved, just saying that I couldn't be the person to do it.

But you still haven't answered my question, what if someone told you they were guilty but for one reason or another you knew that in law they were not?

I hope I've answered this question now, with the above.
To take your example, the guy hasn't necessarily admitted his guilt, just that the circumstances as presented by the prosecution did occur. It would be my job as a defence solicitor to look at the incident and the offence which is alleged to have occured and determine if they match up.

Morality is personal and relative of course, not absolute. I didn't say anywhere that it would be immoral to defend someone whom you knew to be guilty. Just that I couldn't.

Reloc8

seamus wrote: »

My opinion is at that point I would have to walk away because I couldn't in all conscience work to secure the man's freedom [snip] didn't say anywhere that it would be immoral to defend someone whom you knew to be guilty. Just that I couldn't.

I fully respect that. There's lots of jobs out there I would never wish to do. Its up to the individual.

seamus

seamus wrote: »

According to Kayroo's description, at that point I should be examining the prosecution's case and looking for legal errors - i's missing dots and so forth - because I know the guy is guilty.

That is absolutely not what I was getting at although, on some levels at least, it is not entirely a misrepresentation of my position.

I'm not saying one should search for technicalities insomuch as I am saying that one should assist the prosecutor in ensuring that the trial is conducted properly. If the man is guilty then it is not my job to pronounce him so, it is a barrister's job to assist the Court (the primary duty of a barrister even above the duty to his client) in conducting the trial in the appropriate manner so that justice can take its course.

NUTLEY BOY

My 10 cents worth.

For the defendant to be guilty the prosecution must prove 2 things ; the wrongful act and the intention to commit the offence.

If the client admits to his counsel both the wrongful act and the intention to do it I think that counsel acts unethically if he continues to represent the client on a plea of not guilty.

If the client - on the preceding facts - pleads guilty I see no problem with counsel continuing to represent the client as all that is left is to plead mitigation.

Counsel may well form the view that a client is as guilty as hell of the offence charged. However, it is definitely NOT counsel's job to act as the jury on the client's culpability. Counsel who take on the juror's functions are not really doing their job properly.

Counsel might well advise the client that on the basis of the available evidence a conviction is more likely and may advise a change of plea to guilty. The decision on this is entirely a matter for the client.

Moral of story - never ask the client if he did it. If you do not ask and the client does not tell I see no moral or ethical problem whatsoever in proceeding to defend on a plea of not guilty.

As far as the classic moral proposition about sleeping easy after knowing that a murderer has gone free goes I see no problem there either. If counsel has acted ethically (i.e. not defending on a not-guilty plea when knowing otherwise by virtue of the client's admission) there is no problem as it is the jury that decides guilt or non guilt. If the trial was a fair and proper one an acquittal simply means that the prosecution failed to reach the required standard of proof and that is the end of it.

Incidentally, I do accept that an acquittal does not equate to innocence. All innocent people are not guilty. However, only some acquitted defendants are actually innocent. I think that Lord Denning had a few things to say about that once upon a time. I think he called this issue a lawyers' quibble

johnnyskeleton

seamus wrote: »

All you're doing is trying to posit shaded grey examples.

Well I'm sorry if I don't see the world in clear cut black and white like you.

seamus wrote: »

I'm talking about a case where a guy walks up to someone with a knife and shoves it through someone else's brain, in full sight of multiple witnesses.
He pleads not guilty, but he tells me in discussion that he's absolutely guilty.
According to Kayroo's description, at that point I should be examining the prosecution's case and looking for legal errors - i's missing dots and so forth - because I know the guy is guilty.

Yes exactly, and if he really is guilty and bang to rights as you suggest then odds are that there won't be any problems with the prosecution case, at least none that will result in an acquittal. i's missing dots is a fictitous example of some problem with a prosecution case, fictitous because any such argument is doomed to failure. However, if there is something of more substance, taking your example if one of the witnesses says that just before the incident he saw the deceased pull the knife out and threaten the accused, then it is your duty to at least put this up to the court and let the jury make its own mind up based on the facts.

If it really is an open and shut case and a client instructs his lawyers that he is guilty, then they should advise him to plead guilty. If he doesn't accept this advice and there is sufficient time to get a new legal team in then he can do so. If not, then what would you have the lawyers do?

seamus wrote: »

My opinion is at that point I would have to walk away because I couldn't in all conscience work to secure the man's freedom. I'm not denying him any right to be tried or be saved, just saying that I couldn't be the person to do it.

But youre not working to secure the man's freedom. As has been said to you countless times, the limited role played by lawyers in such a situation is to test the prosecution's proofs. You are simply playing the role of legitimus contradictor or devil's advocate at that stage. If the person gets off, it is because there is some fatal flaw in the prosecution case and such a fatal flaw is no mere failure to dot i's as you would have it. That you would let your personal feelings get in the way of your duty, not just to the client, but to the court and to the justice system, would do no one any favours.

seamus wrote: »

I hope I've answered this question now, with the above.
To take your example, the guy hasn't necessarily admitted his guilt, just that the circumstances as presented by the prosecution did occur. It would be my job as a defence solicitor to look at the incident and the offence which is alleged to have occured and determine if they match up.

But that is exactly what we have been saying, and you arguing against, throughout the thread. In those circumstances the person has said that they did it and that they are guilty, but his lawyers still have a duty to ensure that the prosecution case is legally sound. That is the ethical duty of lawyers, and it is one which you have been describing as something that you couldn't do, because:

regardless of the legal niceties around the state having to prove their case and so forth. There's legal guilt and actual guilt