Should defence lawyers be allowed to "lie"?

[yllus]

First, read this:

While it is incumbent on a defense lawyer to vigorously represent the client, there are limits. A lawyer cannot knowingly place a witness on the stand to perpetrate a lie, nor can a lawyer knowingly lie to the court. For this reason, in high profile cases, it is not unusual that a defense lawyer will not want to know if the client is guilty. Without that absolute knowledge, the defense strategy can remain more flexible.

Should defence lawyers be allowed to avoid finding out if their client is guilty so they can pursue a legal defence that they all but surely know is a lie? How is justice well served if the truth is literally avoided because knowing it would mean that the client would surely lose the case? It's supposed to be about the truth.

I'm all for requiring a beyond-reasonable-doubt level of evidence for a conviction, and I'd rather let 99 criminals go rather than imprisoning 1 innocent man, but this rule simply doesn't make sense to me.

 

[irishScott]

Everyone, even the bad guys have a right to legal counsel. If the lawyer knew his client was guilty of something major, could he/she help but have that influence his/her ability to defend the client?

Think Law&Order had an episode like this where they convinced the defense attorney of a child-rapists guilt, but for some reason he was going to get off anyway until his own defense attorney steered him the right way in court.

 

[jonks]

There's a lot in the OP to talk about but I'll just mention that trials aren't about the truth, although it's hoped the adversarial process reveals it. Trials are about restricting govt power and protecting individuals from the immense influence of the state. I don't think this is a big issue overall since as your quote mentions this is a tactic for "high profile" cases, a tiny minority. Most defendants plea out anyway.

 

[yllus]

Everyone, even the bad guys have a right to legal counsel. If the lawyer knew his client was guilty of something major, could he/she help but have that influence his/her ability to defend the client?

Everyone should definitely have a right to legal counsel - honest counsel, not counsel that will aid a criminal in trying to find a technicality to escape justice or point a finger elsewhere while all but knowing they are the guilty party. Knowing the truth about the guilt of the client should absolutely influence their ability to defend the client.

I suppose the reason it's structured this way is that if a defendant isn't confident that their attorney will lie for them, they'll simply not tell their lawyer the truth. I don't think that the structure we've got is better than that - if you're guilty and you're determined to lie, I don't want anyone assisting you with that - but perhaps it's simply realistic.

 

[Phokus]

Unfortunately there's an incentive to do bad things by both sides (prosecutors and defense attorney's) that you can't just single one side out. The deck is stacked against the defense because police departments are often in collusion with the DA (the DA is beholden to the police since they're dependent upon them for a high conviction rate).

See: The ATOT thread in which a cop rear ended a motorist, went flying into his back seat and the DA actually had the chutzpah to press charges against the motorist.

 

[yllus]

Unfortunately there's an incentive to do bad things by both sides (prosecutors and defense attorney's) that you can't just single one side out. The deck is stacked against the defense because police departments are often in collusion with the DA (the DA is beholden to the police since they're dependent upon them for a high conviction rate).

See: The ATOT thread in which a cop rear ended a motorist, went flying into his back seat and the DA actually had the chutzpah to press charges against the motorist.

It's worse than that up here (as detailed below), but I don't see the all-but-lying ability granted to the defence as much better. I'd rather tackle both.

Ontario pressured to 'come clean' on jury checks

TORONTO -- The Ontario government is facing demands to “come clean” about a practice in at least one region where police were conducting background checks on potential jurors at the request of prosecutors.

The information was acquired using confidential police databases and then passed on to the Crown in Simcoe County in central Ontario, where the main courthouse is located in Barrie.

Jurors were not told of the background checks and the information was not disclosed to defence lawyers, as is required under the legal obligations of the Crown.

As first reported by the National Post this week, the police investigations into the backgrounds of potential jurors date back at least until 2004, according to court documents.

A memo sent by the Crown to several area police services in Simcoe County asked for help in weeding out any “disreputable persons” from the jury pool, even though there is no section in the Juries Act that permits background checks.

 

[WhipperSnapper]

First, read this:

Should defence lawyers be allowed to avoid finding out if their client is guilty so they can pursue a legal defence that they all but surely know is a lie? How is justice well served if the truth is literally avoided because knowing it would mean that the client would surely lose the case? It's supposed to be about the truth.

I'm all for requiring a beyond-reasonable-doubt level of evidence for a conviction, and I'd rather let 99 criminals go rather than imprisoning 1 innocent man, but this rule simply doesn't make sense to me.

It seems like a lawyer who could no longer zealously defend his client would need to step down and hand the case off to another lawyer. It's not lawyers who are supposed to decide innocence and guilt. It's the jury and the court proceeding that is supposed to decide that, not one single person. (What if a tells the lawyer he's guilty to take the fall for someone else when he really didn't commit the crime?)

It would also probably create an attorney-client privilege problem. If the guy you are defending tells you he is guilty, that's probably privileged.

 

[piasabird]

You are not guilty of a crime unless you are convicted. Innocent until proven guilty.

 

[ShawnD1]

If a guy can lie his way out of trouble, then wouldn't that mean there isn't really any good evidence against him?

If police find my blood at a crime scene and I say it's not mine, the lab results will win every time.

 

[Rainsford]

There's a lot in the OP to talk about but I'll just mention that trials aren't about the truth, although it's hoped the adversarial process reveals it. Trials are about restricting govt power and protecting individuals from the immense influence of the state. I don't think this is a big issue overall since as your quote mentions this is a tactic for "high profile" cases, a tiny minority. Most defendants plea out anyway.

I feel like this is the only argument needed here. There's honestly no human designed and run system that will be good at finding "The Truth". And the problem with trying to run things with that goal is that it becomes too easy to make the truth look like what you want.

 

[Lithium381]

the police lie, so why not?

 

[Craig234]

Let's say there's a suspect who did a crime, and the prosecution has some evidence, but not enough to convict if the defense lawyer points out reasonable doubt.

The defendant tells his attorney he did it.

The prosecutor makes his case, and says 'he's guilty - watch, even his attorney won't claim he didn't do it', and sure enough, the attorney can't.

Is that how it should work?

There is a line between justice and not wanting defense attorneys to knowingly make false but effective arguments that get the guilty off, and the need for a defendant not to be incented to lie to or hide information from his attorney. Speaking of tv shows, I think Boston Legal also had a good case like this, where the defendant was clearly guilty but had worked out a plan for the case and expected the lawyers to go along.

I'm not sure the rules in place now aren't the right ones to address and comrpomise on these issues.

There are already a lot of games played on both sides (defense attorneys and prosecutors both personally benefit from winning, in conflict with the plan for them to put justice first). There are other reforms I'm more interested in, like allowing jurors to ask questions of witnesses through the judge and more video cameras on police.

 

[Craig234]

the police lie, so why not?

The police are not the prosecutors, but you have a point.

 

[Craig234]

If a guy can lie his way out of trouble, then wouldn't that mean there isn't really any good evidence against him?

If police find my blood at a crime scene and I say it's not mine, the lab results will win every time.

As I understand it, lawyers who know their clients are guilty don't argue that they are innocent; rather, they raise 'reasonable doubt' with the evidence presented.

It's the difference between saying 'the defendant did not commit the crime and I'll prove it' (which they are not obligated to do but can do, but generally don't - why give themselves a harder standard than reasonable doubt with the presumption of innocence), and 'the state did not prove the defendant committed the crime beyond a reasonable doubt'. In the latter, they can say things like 'the fingerprints could have been left any time, the defendant had reason to be at the location before'.

 

[cubby1223]

I look at it as, the primary job of the defense attorney is to ensure that the prosecution follows the law.