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Will a moral attorney defend a guilty man?

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amadeus-x

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Greetings, fellow Shipmates of Industry!

My question is: Is it moral for an attorney to defend one who is guilty of violating a proper law?

I have some thoughts (which are actually just primarily more questions) on the matter that I will share. However, it may not even be necessary for you to read them in order to answer said question. However, do so if you'd like. I would also like to note that I'll be explaining, in very general terms, certain legal terminology. I don't do this to be condescending. I would just hate to miss out on getting some valuable insight from someone because they weren't familiar with a particular term or concept.

My primary conflict is this: I want the government to have to prove its case beyond a reasonable doubt. I also want the guilty (meaning: "those who have violated morally proper laws") to be punished. Assume for a moment that I'm representing a client whom I know to be guilty. It seems to me that if I work to accomplish the first (making the gov't prove its case), I am simultaneously working for a result that I don't want (a guilty man going free)!

A few related problems:

1. The Federal Rules of Evidence, as well as many, if not all, state rules of evidence, permit a lawyer to impeach a witness by presenting to the jury any conviction that the witness has had for a crime relating to the witness' lack of truthfulness. So, I know that I can make said witness look like they are lying. Is it okay for me to create an argument that the witness is probably not telling the truth, even if I KNOW that the witness IS telling the truth?

2. Many effective closing arguments have "themes." A theme, in this context, is like the hook of a song. For example, "Members of the jury, this is a case about mistaken identity." "Mistaken identity" is the theme. So, let's say that throughout the case, I have been trying to introduce the notion that the government hasn't really proven that it was my client who did the crime. That's all well and good, but if I come right out and say, "this is a case about mistaken identity," to the jury, aren't I lying? I KNOW that there is no mistaken identity. Of course, I could say, "this is a case about the government not being able to prove beyond any reasonable doubt that it was MY client who did the crime," but that just sounds weak. Weak or not, is that what I SHOULD say (as opposed to the first theme)?

3. Suppose my client takes the stand and proceeds to lie through his teeth. Can I explicitly or implicitly tell the jury that he is an honest man? That they should believe him?

4. Suppose a cop takes the stand. Also suppose that the cop is nervous and/or not very articulate. Can I make his stuttering appear to be due to his dishonesty? Can I make his mistakes of wording appear to be inconsistencies or lies?

5. The Federal Rules of Evidence allow an attorney to present to the jury the fact that a witness has been convicted of any crime punishable by more than one year in prison (this affects the witness' credibility in the eyes of many jurors). Well, suppose I think that the "crime" they were convicted of is bogus. Should I try to smear the word of an honest man who was in prison for bringing some pot back from Amsterdam in order to help free my lying, thieving client?

6. Has anyone seen my keys?

Thanks in advance for any insight that you share!

Edited by amadeus-x
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I think if someone is guilty, you know it to be true, and you're acting to protect this crime which you think to be immoral than it is immoral. You're robing society and the goverment of justice. It doesn't matter if the government has truly proven it or not.

There is a huge difference between believing someone is guilty and knowing someone is guilty. If you cannot be certain, and believe the person is guilty, I think you can justify defending them.

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I'm not a lawyer, so you can take this with a grain of salt.

In here I take it we are totally ignoring what the 'ethical' requirements of bar membership are, and are instead looking at genuine ethics. The question of whether it is actually ethical to follow the bar's own instituted code of ethics is a separate subject.

First up, obviously you are presuming the client wants to plead innocent. If the lawyer knows beyond doubt that the client is guilty then at first glance I agree with Dorian. I also don't agree with the idea of wanting to make the government prove its case. If your problem is with procedure then write up some submission, prove your own case directly, and try to get it published somewhere - get in contact with a respectable law professor, for example. If you think there's something iffy with the judge or the DA office or police etc then the ethical thing to do would be to confront it directly, if at all, rather than as you say knowingly aiding a criminal getting off. The only time I can think it would not be immoral is if the lawyer him or herself has genuine grounds for reasonable doubt, but that isn't what you asked about.

1. By deliberately getting a jury to believe that a truth is false is a form of dishonesty. Getting someone off on a technicality you know very well is non-germaine or outrightly in opposition to what justice requires is definitely immoral. BUT, it was already immoral to take the case in the first place, as justice and morality require that you advise your client to plead guilty (then your job would be to see that the prosecution does not go for an excessive punishment.)

Moreover, by taking the job in the first place you are likely stuck with having to give it the works. If, in the present milieu, you fail to press a tactic and the client knows or comes to know about that, that in itself could be grounds for an appeal? Not only would your client then get a new trial and a new chance at unearned freedom but your own career and track record come into question.

2. So rather than just one lie, you're generating an entire integrated set of lies, and you ask if this might be immoral?

3. That's a false dilemma, functionally equivalent to asking what it is ethical to do if an unarmed and harmless civilian catches you in the middle of a burglary. You already knew the client was going to lie as a matter of course by pleading innocent - of course he was going to lie more to defend that first lie. If you then try to burn your client somehow, you're in breach of your oath, are professionally screwed, and maybe legally too. Thus, there is no ethical course of action to take in this circumstance, other than resigning from the case altogether (in which case, pointed questions will be asked). Again, you shouldn't have permitted a plead of innocent to be entered under your name as defending counsel in the first place.

4. I think by now you don't need me to tell you.

5. Ditto.

6. Wages of sin and all that.

JJM

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I propose that the attorney should refuse to take the case, or withdraw, if the client is not willing to enter a guilty plea. (I'm glossing over the rules that make that impossible). Now you'll notice that the rest of the questions fall by the wayside: if in fact you know that the man is guilty, he should be punished, end of story. If you persist and end up asking about rules of evidence, impeachment, etc. then you've let the main horse out of the barn, and you're now adhering to "the interest of the client" over "justice" as your guiding principle.

In which case, your "even though I know it's not so" condition has already been denied by you -- if you're still talking to this client, you're committed to the interests of the client. The underlying principle regarding credibility of witnesses is in fact valid, so use it (that covers 1, 3, 4). If the facts do not show conclusively that the client is the culprit, if the conclusion is not Peikovian certain, then it is right to emphasize that the required burden of proof has not been shouldered (esp. since juries don't understand the instructions).

In other words, by continuing with the case in the first place, you've already sold your soul, so your "and could I..." questions are the result of trying to resolve the contradiction. Now there is a context where I think the problems could be real, that you earnestly believed in the innocence of the client and mounted an appropriately vigorous defense, and then one afternoon, in the middle of it, the guy confesses to you. Withdrawing might seem prejudicial to the client, so it's not a freely available option. Still, a decent judge (cough) would grant the motion on the grounds that the new information prevents you from mounting an effective defense. If the judge puts a gun to your head and demands that you continue the slimy defense, the issue of your morality is put in abeyance.

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My primary conflict is this: I want the government to have to prove its case beyond a reasonable doubt. I also want the guilty (meaning: "those who have violated morally proper laws") to be punished. Assume for a moment that I'm representing a client whom I know to be guilty. It seems to me that if I work to accomplish the first (making the gov't prove its case), I am simultaneously working for a result that I don't want (a guilty man going free)!

For context, I start by pointing out that I agree with your statements here, except possibly the last.

I say possibly the last because I am not sure whether I think that statement is accurate. If you value making the government prove its case more than you value the guilty being punished, then you ARE working for the result that you want, because the result that you want is making the government prove its case. It's a question of which you value more, which can vary depending on the context. Watch.

"I want all guilty people to be appropriately punished." Okay, I have an easy way to do that. Convict everyone in existence of every crime on the books. That way, everyone who is guilty will be punished.

"But I don't want the innocent to be punished." Okay, I have an easy way to do that, too. Don't convict anyone of anything. That way, no one will be wrongly convicted.

Clearly both of these scenarios are ludicrous. But the point I'm trying to illustrate is that notions like "beyond a reasonable doubt" are (hopefully) parts of the result that you want, which is, or rather, ought be, an objective justice system that maximizes its achievement of accurate fact-finding. And how do you do that? Rules.

A major example comes to mind: the exclusionary rule. The purpose of the exclusionary rule is not accurate fact-finding. In fact, the exclusionary rule is opposed to accurate fact-finding because it disallows the introduction of inculpatory evidence. What do you mean I can't introduce this knife that matches every nook and cranny of the deadly wound and is drenched in what is scientifically proven to be the victim's blood?!? :P What I mean is that we can't have cops breaking down everyone's doors to find evidence of crimes. What I mean is that you need "probable cause" to get a "search warrant".

2. . . . Of course, I could say, "this is a case about the government not being able to prove beyond any reasonable doubt that it was MY client who did the crime," but that just sounds weak.

It's weak as you phrase it, but it doesn't have to be. One of the beautiful things about the "mistaken identity" theme, or the hook of a song, is simplicity. Applying that to the theme I quote, make it an issue of two words: "principle" and "values". Like so:

"This is a case about principle, about values. Seems strange, doesn't it? You haven't heard a thing about values this whole trial. You've heard from cops, and people who saw things, and doctors who tested stuff. But make no mistake friends, our principles, our values, are the most important pieces in play today.

You see, we believe in liberty. In the idea that a person's freedom should be cherished, should be protected. And we believe that if you want to take someone's liberty away--to rip someone from their family, to keep them from making a living, to take someone from their couch where they enjoy a ball game or a laugh after a hard day's work--that you better be darn sure they did something wrong. The value of liberty is important to us, and that's why the judge is going to tell you that before you can take John's liberty away, you had better be convinced beyond a reasonable doubt that he did something wrong.

What does that mean, "beyond a reasonable doubt"? Well, it means that if you look at all the evidence you've heard--all the evidence--and you still aren't sure that John did what the Government says he did, and your uncertainty is reasonable, then you must say not guilty. . . ."

Don't you think that's much stronger? If I were arguing that to you in the jury box, wouldn't that convince you (who I know to be a man of principle), or at least get you to think long and hard before you voted guilty?

3. Suppose my client takes the stand and proceeds to lie through his teeth. Can I explicitly or implicitly tell the jury that he is an honest man? That they should believe him?

You don't have to tell the jury anything. If you know your client will testify falsely, you have to try to dissuade him, and if that doesn't work, you must refuse to offer the false evidence. If you don't know he will testify falsely but upon his testifying you realize that it was false, Rule 3.3 requires you to take remedial measures including disclosing his perjury to the court if necessary. Point being, the ethics Rules flat out prohibit knowingly offering false evidence.

Didn't you get a better grade than me in Professional Responsibility? :P

6. Has anyone seen my keys?

Dude, I told you. They're on the counter in the bathroom by the toothbrushes.

I pose to you an additional question: What about sentencing? Assume that my client did plead guilty and that I now must make an argument for a sentence. If the law is proper, can I argue for something less than the maximum, assuming that the maximum itself is proper?

This topic reminds me of that situation in law school where we'd read the court's opinion and think it was right, then read the dissent and think it was right, and then end up banging our heads against the wall.

That's all for now. Here's to a fulfilling, informative discussion!

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The only time I can think it would not be immoral is if the lawyer him or herself has genuine grounds for reasonable doubt, but that isn't what you asked about.
I want to point out why this is, as stated, in error. It imposes an unreasonable burden on the innocent, to make a prima facie showing of actual innocence. Our system (and yours too?? I dunno) is predicated on the principle that the defendent need offer nothing, that the burden lies on the prosecution to prove that the defendant is guilty. By requiring that the lawyer have genuine grounds for reasonable doubt, you're shifting the burden of guilt to the untenable "guilty by assumption" perspective. When an attorney knows that the accused is guilty (and the law is proper), then the attorney should persuade the client to admit guilt, or he should withdraw from the case. Unless, of course, the attorney does not accept "justice" as his moral signpost.
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With respect to not taking a case when you know the person is guilty and he refuses to plead as such, what are the implications of that? Assorted thoughts on this and another issue:

1. You will have a difficult, if not impossible, time getting a job working for somebody else. I cannot imagine a firm or public defender that would give you the option of refusing cases on such grounds.

2. This leaves you the option of working for yourself. Such an option is a risk as it is, and would become even more so were you to restrict your practice in such a fashion.

3. Such a practice would probably damage your reputation among judges, making life more difficult for your legitimate cases and for getting appointed to them by those judges.

4. Is there anyone here who thinks it's moral to be a prosecutor but not for a defense attorney to defend a factually guilty person? If so, why?

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When an attorney knows that the accused is guilty (and the law is proper) . . .

What of the scenario when the attorney knows the client is guilty but the propriety of the law is ambiguous? The following example comes to mind:

John unquestionably commits statutory rape. The girl is 16 but the law prohibits sex with anyone under 18. She is mentally capable of making the decision to have sex, but the law prohibits introduction of evidence to that effect.

Is anyone certain of the propriety of this law? I am not. On the one hand, setting a bright-line age requirement is quite the expedient measure that keeps us from violating the fallacy of the gray area. On the other, justice will not be done in some cases, like this one, where the purpose behind the law (ensuring that people are punished who force someone into sex who cannot consent to it) is not fulfilled.

The example isn't all that important, though if you want to comment on it, please do. The point is just to raise another scenario, that in which the attorney knows of guilt but the law's propriety is an open question. I'm guessing, DO, in light of previous comments of yours about lenity, that you would say defending the case is kosher. Not speaking for you, mind you, just predicting.

Here are the scenarios we have:

1. Attorney knows of guilt and law is proper

2. Attorney knows of guilt and law is ambiguous

3. Attorney knows of guilt and law is improper

4. Guilt is ambiguous and law is proper

5. Guilt is ambiguous and law is ambiguous

6. Guilt is ambiguous and law is improper

Refine this as you will. It seems like most of you are saying that the attorney should not defend the case under scenario 1, and I'd guess most of you would say he could under scenarios 2 through 6. Unfortunately for me and for anyone else who has to answer these questions, scenario 1 comprises a great many cases and will almost certainly appear regularly in any job working for another.

By the way, Luke, that appeal I won (resulting in reversal of the defendant's conviction)? Scenario 4. The law was proper (clearly it should not be okay to vandalize another's restroom), but I did not know whether the accused did it.

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You will have a difficult, if not impossible, time getting a job working for somebody else. I cannot imagine a firm or public defender that would give you the option of refusing cases on such grounds.
If you want to be a public defender, you do have to give up the “justice” ethic in favor of the “client’s interest” ethic. Probably also true with criminal cases especially if you don’t start your own firm. The guy who was my family’s lawyer in fact left criminal practice exactly because of the problem of moral betrayal. So yes, morality does unfortunately have a price in the legal profession.
Is there anyone here who thinks it's moral to be a prosecutor but not for a defense attorney to defend a factually guilty person? If so, why?
Me. But to make the comparisons more parallel, I think it’s moral to be a prosecutor, or a defense attorney; I think it’s immoral to knowingly prosecute an innocent man, or defend a guilty man (it’s also against the law to knowingly prosecute an innocent man). I would say that it’s even wrong to prosecute a person who you have reason to believe is innocent.
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If you want to be a public defender, you do have to give up the “justice” ethic in favor of the “client’s interest” ethic. Probably also true with criminal cases especially if you don’t start your own firm. The guy who was my family’s lawyer in fact left criminal practice exactly because of the problem of moral betrayal. So yes, morality does unfortunately have a price in the legal profession.

Do you know what, if any, other legal area he went to practice in?

I would say that it’s even wrong to prosecute a person who you have reason to believe is innocent.

Which probably means that being a prosecutor = sometimes acting immorally, doesn't it? A prosecutor is going to do probably hundreds of cases a year, and I'd guess that for at least one of them he would have reason to believe the defendant is innocent. I don't think it's straining imagination to suspect that his boss might make him prosecute such a case or be fired. And there's no going solo as a prosecutor, except maybe in obscure South Dakota towns with 7 people.

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What of the scenario when the attorney knows the client is guilty but the propriety of the law is ambiguous? The following example comes to mind:

John unquestionably commits statutory rape. The girl is 16 but the law prohibits sex with anyone under 18. She is mentally capable of making the decision to have sex, but the law prohibits introduction of evidence to that effect.

Is anyone certain of the propriety of this law? I am not.

I’m more certain of the impropriety of the law; but taking your position, you can’t say “This is a proper law”. The discussions have been assuming that the law is in fact proper, e.g. the statutes against murder, theft and Phillip Glass music (no, wait, that isn’t actually against the law). When the propriety of the law is in doubt, naturally it does not follow that the person should be punished. In the case of a flatly improper law, to defend a man against the initiation of force, and worse, initiation of force under color of law, the stops should be pulled out.

I mean, what we really need is a thread on how to correctly restrict sex with minors. I recall that Florida has a reasonable statute stated in terms of age differences so that 18+17 doesn’t get you 20. Anyhow, a man who lives by principle does tend to be predictable :P.

Unfortunately for me and for anyone else who has to answer these questions, scenario 1 comprises a great many cases and will almost certainly appear regularly in any job working for another.
Truly shocking. How can you live with yourself? Just kidding, although.... I have the luxury of be able to posit abstract principles where my livelihood doesn’t depend on defending the known-guilt right-violating scum of the earth. Not to stir up the apple cart or upset the hornet’s nest, but I am actually curious to understand how you could defend a man who you know to be guilty of rights violation. Is this about the two different goals, “justice” vs. “the client’s interest”?

Anyhow, the guy just did civil law; pots of contracts, wills, tax cases, etc. I'm not totally sure because I was a kid -- mostly business.

Okay, so in fact the prosecutor problem is not soluable except at the level of massive cultural change, where it's not just the individual prosecutor who seeks justice rather than conviction, but the entire prosecutorial profession. I will let you be the one to actually take that argument where it might go.

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When the propriety of the law is in doubt, naturally it does not follow that the person should be punished. In the case of a flatly improper law, to defend a man against the initiation of force, and worse, initiation of force under color of law, the stops should be pulled out.

I thought as much, I was just seeing if we were on the same page, as well as trying to place this in its overall context (hence the six scenarios). However, I think I should restrict further discussion to the scenario raised.

I mean, what we really need is a thread on how to correctly restrict sex with minors. . . .

Yeeeah, I should have known better than to start that one here. I didn't even need the example, but instead of saying the example wasn't important I should have just deleted it like I thought to do. At that point it was a sunk cost.

Not to stir up the apple cart or upset the hornet’s nest, but I am actually curious to understand how you could defend a man who you know to be guilty of rights violation. Is this about the two different goals, “justice” vs. “the client’s interest”?

Oh come on, you couldn't find another metaphor to squeeze in there? :P

Seriously, though, you don't have to worry about offending me by asking such a question. I think we know each other well enough to know that we're both civil, intelligent people. I take such a question from you as an honest inquiry. Not only that, but if you think defending the guilty is immoral, I almost expect the question. Like that scene in Atlas where Francisco says he expects Dagny (or Rearden?) to hate him under her (or his?) current principles. Something like that.

I don't think "the client's interest" is the way to put it. I see value in making the government prove its case. "Beyond a reasonable doubt" has to mean something. While I might know that my client is guilty, what does the fact-finder know about it at the outset? Ideally, nothing. And what should the fact-finder know by the end of the trial? Only what they've seen and heard in court, under the rules of evidence, Constitution, etc.

Say, for example, a key piece of evidence is excluded, but a juror improperly reads a newspaper article about it, tells the other jurors, and they convict the defendant based on that even though the evidence presented to them was otherwise lacking? Would you say that was justice because a factually guilty person was punished? I don't call that justice, because the process was tainted. I would not be comfortable with a rule that said "A jury may not consider outside evidence unless the defendant is factually guilty." That puts the cart before the horse, because the point of the jury is to make guilt determinations, and the point of evidence rules is (generally, cf. the exclusionary rule) to make sure the jury gets accurate facts.

So, when someone is factually guilty but will not plead guilty, what is my job? To get my client acquitted? Well, yes, on a certain level. But the larger goal, the purpose behind my job, is to make sure the government does its job. If I know someone is guilty, but the government doesn't have enough evidence, my job is to make sure people aren't convicted when there isn't legally admissible evidence beyond a reasonable doubt.

Anyhow, the guy just did civil law; pots of contracts, wills, tax cases, etc. I'm not totally sure because I was a kid -- mostly business.

Well, with tax cases that's a moral no-brainer. Contracts and wills make me mildly nervous, though, because you sometimes have either a bad law or bad facts. What do you do if you're general counsel for Panera Bread and they ask you to argue that a burrito is a sandwich? :P

Okay, so in fact the prosecutor problem is not soluable except at the level of massive cultural change, where it's not just the individual prosecutor who seeks justice rather than conviction, but the entire prosecutorial profession. I will let you be the one to actually take that argument where it might go.

Well, I have no intentions of becoming a prosecutor (anymore--as you know I was considering it at one point) because I don't think I could stomach prosecuting bogus crimes.

So instead, I'll pass the hot potato to Vern if he wants it. :P

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Greetings, fellow Shipmates of Industry!

My question is: Is it moral for an attorney to defend one who is guilty of violating a proper law?

Without a trial and presentation of evidence, how does one know if the defendant is guilty of violating the law? Defense is part of the trial process. The burden of proof is properly on the accuser. Were it otherwise every accused person would be forced to prove a negative, which is rather difficult.

Bob Kolker

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Professor Odden (and others):

Thank you very much for your replies. I haven't ignored them. I've been reading them over several times. I want to be sure that I'm understanding everything properly so as to avoid wasting anyone's time asking questions that have already been answered.

Professor Odden, Groove said:

"I don't think "the client's interest" is the way to put it. I see value in making the government prove its case. "Beyond a reasonable doubt" has to mean something. While I might know that my client is guilty, what does the fact-finder know about it at the outset? Ideally, nothing. And what should the fact-finder know by the end of the trial? Only what they've seen and heard in court, under the rules of evidence, Constitution, etc."

I would be interested in reading what you have to write about the above quote, if you're inclined. Is what the fact-finder (the court, jury) knows or should know relevant when the issue is whether I should defend a guilty party? If not, should a guilty party, by default, be forced to defend himself?

I would also like to note that I have not yet aided in the defense of any criminal case. I am certain that on some level I would feel sick if my work contributed to, say, a rapist walking the streets. I should say, however, that on some level I would be glad to have prevented the government from convicting someone if the government had less than a "beyond a reasonable doubt" measure of evidence. However, it is the risk of enormous guilty that prevents me from acting until I am at least fairly certain that doing so would be proper.

Thank you again. I'm sure I'll have more questions on the topic rather soon.

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I'm sitting back and watching with rapt fascination. This bit stuck out for me:

In the case of a flatly improper law, to defend a man against the initiation of force, and worse, initiation of force under color of law, the stops should be pulled out.
Say, for example, a key piece of evidence is excluded, but a juror improperly reads a newspaper article about it, tells the other jurors, and they convict the defendant based on that even though the evidence presented to them was otherwise lacking? Would you say that was justice because a factually guilty person was punished? I don't call that justice, because the process was tainted.

To what extent can the stops be pulled out to see that an injustice isn't done? Am I limited to only pulling out the stops on the main ranks of pipes, or can I use the clarions and bird whistles? And why can't I use the clarions and bird whistles in order to make sure justice is done when the shoe is on the other pedalboard? (Here ends organ metaphor.) What I mean is, what can I do to get my client acquitted of an unjust law? Am I limited to obeying the rules? What if I can get an acquittal, but to do so would require me to make a slimy (for want of a better word) argument? Or am I being too cynical by thinking that the truth might sometimes not set my client free? Should I make the slimy argument in order to avoid the greater injustice? Should I bend the rules in order to avoid that injustice? If I can (should?) do these to keep my client from being convicted of an unjust crime, what stops me from doing the same as a prosecutor to avoid the injustice of a criminal being acquitted?

I haven't taken PR yet (though I just finished my last exam as a 1L this afternoon; happy dance!), but I'm quite sure that they're going to tell me that breaking the rules is naughty. I hope it never happens, but what do I do if the system gets so messed up that the only way to keep my innocent client out of jail is to bend the rules? Or is that time to quit the profession?

-Q

PS: I have an interview on Tuesday. I wonder if they'll Google me...

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Qwertz:

Is it time to quit? Because of THIS? My good man, countless are the reasons to quit! This is simply a drop in the bucket! Oh the misconceptions I had when I started law school (in 2003). On a positive note, you'll learn some incredibly valuable skills in law school, most of which carry over into many areas other than the practice of law.

Now, to address your question. Your question may raise the same fundamental issue that mine does: What is the value in preserving "the system" versus what the system should rightfully accomplish? In my Professional Responsibility class, the professor posed this hypothetical to the class:

Your client is innocent, but charged with murder. You know, for a fact, that unless you fabricate a piece of evidence, your client will go to the gas chamber. You also know that you will never be caught if you fabricate said piece of evidence. The

professor asked for a show of hands as to how many people in the classroom would fabricate the evidence. I was the only student with a hand up. He then said that he too would fabricate the evidence.

Now, I'll go ahead and flagrantly expose an inconsistency (I think) in my thinking. If the hypothetical above was directed at a prosecutor and asked, "Prosecutor, if you knew that a man guilty of murder would go free unless you fabricated a piece of evidence, and you knew you'd never be caught, would you?" I wouldn't feel quite as confident in the rightness of a "yes" response. But maybe I should. After all, it would appear that both versions of the hypo lead to a just result.

I hope you continue in this discussion. I'm faced with making a partial career decision (signing up for criminal defender appointments from the court). You may well be deciding whether to do the same in a couple very, very short years.

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I think that if the system ever reached a state where only a piece of fabricated evidence could save an innocent man from the gas chamber, or send a heinous murderer to jail, it would have by that point lost any remaining value. There is no value in a system that does not conform its actions to the facts, and such a system should be replaced with all due speed. If that means the prosecutor must fabricate 'evidence' in order to do justice, I think I can confidently say "so be it." But only because the system has reached a point where it is no longer open to reason and evidence (assuming, of course, that the prosecutor's knowledge of the suspect's guilt is based on reason and evidence). Fortunately, this hypothetical, like many hypotheticals, is still highly unlikely, so we can safely relegate it to the bin of emergency situations that must be evaluated in their full context and on the facts as they actually are in order to determine the rational course of action.

-Q

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I would be interested in reading what you have to write about the above quote, if you're inclined.
First off, the invitation for someone to spin off another sex thread is still open.

I had the flu yesterday and the poisons clearly clouded by brain. I think I see the light now.I’m going to reconsider the key questions raised by ForTheLoveOfGod, or Luke for short, under the assumption of a competent prosecutor and rational jury. ROFLMAO! Calm down guys, this is a hypothetical. “Is it okay for me to create an argument that the witness is probably not telling the truth, even if I KNOW that the witness IS telling the truth?”. Yes, because your argument, which totally lacks substance, would be rebutted by the prosecution. If there is some substance to it but not enough, it could rightly create reasonable doubt. This is sort of a legal Gettier problem: if a liar tells the truth, should he be believed. I sez “no”.

I didn’t address this one before, but I otter, so: “but if I come right out and say, ‘this is a case about mistaken identity,’ to the jury, aren't I lying? I KNOW that there is no mistaken identity”. I agree that that is a dishonest presentation and that it suffices to say that the state has not proven its case as to identity. I think you would be asserting mistaken identity only if you were dealing with an irrational jury and we have agreed (unilaterally) that this is about rational juries. As to point 3, you would deserve the legal sanction that you get if you did so. Question 4 is a variant of Q1, “Can I make his stuttering appear to be due to his dishonesty? Can I make his mistakes of wording appear to be inconsistencies or lies?” You can try, and a rational jury will with the aid of a competent prosecutor recognise that a speech defect is no proof of moral corruption. As for use of prior convictions, I have mixed feelings about whether they are of value in judging a person’s character and thus probability that he will lie. On balance, I think they actually do tell you something about the person’s character, even if the crime involves no rights violation. Often they do involve a lie, for example I think you have to declare any illegal narcotics when you enter the country. If the person brazenly declared his right to bring the drugs in and was engaged in an overt act of civil disobedience, the competent prosecutor would bring this out, nullifying my argument that drug smuggling equals a propensity for dishonesty.

I think what the various schemes have in mind is that they are ways of exploiting the irrationality of jurors. The solution then is to not have irrational jurors.

Anyhow, I think I’ve absorbed Matt’s “burden on the state” position and agree with it. It is in fact a species of the “justice” purpose, not the “justice in the specific outcome” type, but “justice with respect to legal principle”. It is proper to offer any true fact in defense of the client; if the fact is non-probative or irrelevant, the competent prosecutor can point this out and the rational jury will recognise that you are wasting your time. If in fact the key witness is of dubious credibility, then it is right that his testimony be mistrusted, even if in Gettier-like fashion it turns out to be true. So the higher principle that the state must shoulder a particular burden of proof in depriving people of their rights has to be ranked higher than the very specific observation (it’s not even a principle) that Jimmy Jones is guilty of the crime. I would also apply this to jurors (even more strongly), that they should completely set aside their external knowledge of the matter. At least there is a record of what happens in the courtroom which can be used for an appeal, but if jurors start testifying in closed chambers “Well, I happen to know that Sally is a slut and a liar”, we’re gonna have to start recording jury deliberations and basing appeals on the improprieties of jurors as well.

I still encourage the moral attorney to persuade his client to face the reality of his acts and work for the least draconian punishment, but failing that, I now see where the higher order principle lies, namely in the nature of the procedure -- the procedure should itself be principled.

If anybody wants to have a non-sex related thread about the problematic assumption that jurors act rationally, I think that's really what underlies these morally dubious moves that we've discussing.

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To what extent can the stops be pulled out to see that an injustice isn't done?
The first bright line that comes to mind is initiation of force. The second is the self-interest thing (don’t act in a way that will get you fired or disbarred). When you are faced with a slimy background, i.e. a person is being threatened with loss of freedom because he manufactured certain products whose illegalization is possible only through a slimy argument, then using a slimy argument to defend the man’s rights strikes me as a nice application of the Cynical Trader Principle (“what goes ‘rouns, comes ‘round”, or is it the other way?).

I’d like to see the fabricated evidence example fleshed out more. How can you know that your client is innocent? Why can you not present that fact as the crucial exculpatory evidence. The devil is in the details. I think that if one is to allow defense attorneys to fabricate evidence when they have absolutely certain knowledge of innocence, then they should be able to do the same with very convincing evidence of innocence, or a preponderance of evidence of innocence. And the same with prosecutors, not to mention lab technicians. Now back to the question “what your primary principle”. If it that men should be judged by application of reason to fact, then fabricating evidence would be the antithesis of that principle. If the principle is that all and only the metaphysically guilty people should be convicted, you’re playing fast and loose with the problem of fact (what events transpired) and knowledge of fact. You can’t act on the basis of fact, you can only act on the basis of knowledge of fact. Whatever perceptual data you have can be presented for objective evaluation, and people can decide “he really is innocent” if the facts do indeed constitute a proof of innocence.

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I want to point out why this is, as stated, in error. It imposes an unreasonable burden on the innocent, to make a prima facie showing of actual innocence. Our system (and yours too?? I dunno) is predicated on the principle that the defendent need offer nothing, that the burden lies on the prosecution to prove that the defendant is guilty. By requiring that the lawyer have genuine grounds for reasonable doubt, you're shifting the burden of guilt to the untenable "guilty by assumption" perspective.

There is a distinction between legal procedure and what the lawyer personally requires, and I was referring to the latter rather than the former. I apologise if the use of the term 'reasonable doubt' caused confusion of the two.

I was not stating that the client had to make an active effort to convince the lawyer in all circumstances, only speaking in reference to what the lawyer believes and has a reasonable basis to believe before deciding to take the case, and then realising that the lawyer is going to have to ask direct questions of the client. Since a lawyer couldn't morally hold an opinion about guilt without evidence, it is simply an issue of eschewing flagrant skepticism in the face of such strong evidence the lawyer would have to deal with if he or she did take the case.

When an attorney knows that the accused is guilty (and the law is proper), then the attorney should persuade the client to admit guilt, or he should withdraw from the case. Unless, of course, the attorney does not accept "justice" as his moral signpost.

Which is exactly what I said.

JJM

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Without a trial and presentation of evidence, how does one know if the defendant is guilty of violating the law? Defense is part of the trial process. The burden of proof is properly on the accuser. Were it otherwise every accused person would be forced to prove a negative, which is rather difficult.

What a defense lawyer knows and what a jury knows can be two very different things. How would a defense attorney know but a jury not? The client could tell the lawyer, "No, it wasn't Owens. I did it." At trial, however, the client refuses to take the stand and the jury is left to decide without a confession whether it was the defendant or Owens.

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I had the flu yesterday and the poisons clearly clouded by brain. I think I see the light now.I’m going to reconsider the key questions raised by ForTheLoveOfGod, or Luke for short, under the assumption of a competent prosecutor and rational jury. ROFLMAO!

Why don't I get this? :confused:

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"I don't think "the client's interest" is the way to put it. I see value in making the government prove its case. "Beyond a reasonable doubt" has to mean something. While I might know that my client is guilty, what does the fact-finder know about it at the outset? Ideally, nothing. And what should the fact-finder know by the end of the trial? Only what they've seen and heard in court, under the rules of evidence, Constitution, etc."

Way to omit my italics, jerk. :confused:

I would also like to note that I have not yet aided in the defense of any criminal case. I am certain that on some level I would feel sick if my work contributed to, say, a rapist walking the streets. I should say, however, that on some level I would be glad to have prevented the government from convicting someone if the government had less than a "beyond a reasonable doubt" measure of evidence. However, it is the risk of enormous guilty that prevents me from acting until I am at least fairly certain that doing so would be proper.

I know this wasn't directed at me, but I'll address it anyway so as to provide more fodder for discussion.

While I was a clerk for a public defender, I wrote a brief appealing a juvenile conviction for criminal mischief (vandalizing a restroom). I never met the client nor was I told whether he actually did it. All I had to go on was the record, which I argued (and think) was insufficient to convict beyond a reasonable doubt. I am proud as hell of this one.

I am going to be aiding in the defense of a criminal case as a lawyer very soon, as the county court just appointed me to a defendant. She is charged with negligent child abuse for allegedly placing her kids in danger by leaving them in a car. I'm not going to discuss particulars, but I will say that I am very excited about this opportunity and I hope I can get her acquitted or negotiate a favorable plea bargain.

Now, I won't be working on felonies for a while probably. But I'll consider how I think I'd feel if my work put a rapist on the streets. My answer is, it depends. Why was this rapist not put away? Was there some egregious constitutional violation? Then I feel great. Was the admissible evidence lacking? Then I feel great. Did the prosecution present a solid case that I managed to demolish using legal sophistry, mystic incantations, and magic toads? I don't think I'd feel great. Probably just satisfied, like "Okay, well, my job was to present the best defense I could, and I did, so I'm satisfied."

I'm not nearly as concerned about feeling bad for getting a guilty person acquitted than I would feel for putting an innocent person, or a person guilty of a bogus crime, away. I don't know if I agree with the precise math of the "better to let ten guilty men go free than to put one innocent man in jail" maxim, but I do know that I find the innocent being jailed MUCH more distasteful than the guilty avoiding punishment.

As for the rapist, while I might be okay with his being free, I could still hope like hell that he tried to rape again but this time his potential victim was carrying and managed to put a bullet through his septum.

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There is a distinction between legal procedure and what the lawyer personally requires, and I was referring to the latter rather than the former. I apologise if the use of the term 'reasonable doubt' caused confusion of the two.
I don't see that the two are generally in conflict, though when you have bad law, they should be. So our difference seem to lie in your position on lack of knowledge. I was arguing for the principle "defend unless certain of guilt", and you seemed to be arguing "don't defend unless you have reasonable grounds to doubt guilt" (though I now see that my earlier position was wrong because the "unless" part). The territory in question is the case where a conclusion one way or the other would be arbitrary for the attorney, in which case my principle would say that there is no problem in defending the client, but I believe your position would disallow that (either, refuse to defend, or require the defendant to make a reasonable showing of innocence to you, to create the reasonable doubt in your mind).

From the perspective of an attorney's professional purpose, I might be able to construct a principle whereby clients have an obligation to prove their worthiness to me before I take them on, which means that the client would have to defend himself to me. But as I mentioned, I now realise that I misidentified The Purpose (that is, if I were an attorney, and in the procedural stuff that I do it is the principle for me despite the guilt of the defendant). Namely, a rational society can exist only if there is a rational and rigorously principled legal system. One very important part of that is the legal defense profession, which protects people from violation of their rights under color of law. If one holds to the principle of protection of rights as being the higher principle, then being a defense attorney is not a bad choice; if on the other hand the principle of punishing the guilty is your higher principle, then probably it's best to contact the prosecutor's office with your resume.

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