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Will a moral attorney defend a guilty man?

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amadeus-x

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Why don't I get this? :confused:
Dunno. Do you mean the reference to ForTheLoveOfGod? = Amadeus? Your killin' me, don't they teach you guys Latin jokes anymore? Or do you not see the gut-splitting hilarity of basing an argument on the assumption that the jury acts rationally?
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... 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).

I thought Amadeus' context was already knowing guilt and then deciding what to do about it? That was the context I was depending on with the requirement for a reasonable doubt to arise in, say after the client says something that takes the lawyer out of the context that Amadeus set. In the terms you put it, then I would say that prior to the lawyer coming to any conclusion about anything, totally lacking knowledge, then the proper frame of action is indeed your statement of defend-unless rather than defend-only-if. But, once the lawyer investigates, he or she is going to have to look at the evidence that the prosecution is going to use and then ask the client about it. At that point the lawyer's original do-I-or-don't-I system for taking cases generally is now irrelevant as the lawyer is inevitably going to start thinking one way or another and so will personally have to act on that belief so formed. If it gets to the stage that the lawyer personally believes in the client's guilt and thinks he or she is lying, then the context is set for Amadeus' original questions.

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).

No, that isn't what I think. Even for the lawyer personally it should still be innocent until proven guilty. If the decision is arbitrary, then the erring should be on the side of defend-unless - but again, inevitably that unless is going to have to be dealt with head-on in at least some cases.

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).

In a fully rational society, the two Purposes would be one and the same, namely that someone trained in law is personally intent on wanting to see justice served. Just like a defender, a moral prosecutor would also take the innocent until proven guilty attitude, both personally and professionally, and wouldn't form an opinion without being presented with evidence from police et al. A prosecutor's position would have to be prosecute-only-if. But the two principles are not opposing, but are instances of the same one principle of presumption of innocence, drawn from the rational position that one should not hold a positive without reasonable grounds. As for a lawyer personally, whether he or she would want to be a defender or prosecutor would be a matter of what he or she wants to do with his life and what career path is desired, rather than which supposed principle is higher than which as they are just instances of the same one principle.

As to criminal law and the legal system, the Purpose idea you mention does remind me of a thought I had some years ago, and which ought be a separate thread: is a rational criminal justice system properly adversarial or inquisatorial? I'm not a lawyer so I never investigated it, and forgot about it until now. Civil justice definitely adversarial, but I don't know whether criminal justice should be one or the other as I find something unjust about the prospect of people having their rights upheld or not depending on personal finances. In an inquisatorial system, if fully rational (which includes keeping presumption of innocence, unlike the presumption of guilt in many actual implementations such as in France I believe), it would be much clearer that there is only one Purpose of legally trained professionals.

JJM

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I thought Amadeus' context was already knowing guilt and then deciding what to do about it? That was the context I was depending on with the requirement for a reasonable doubt to arise in, say after the client says something that takes the lawyer out of the context that Amadeus set.
Now I'm confused. If you know that the person is guilty, you can't have reasonable doubt that he is guilty. So in invoking "reasonable doubt" at all, I thought you were setting aside that context. Are we talking about a three-step scenario where initially an attorney takes on a client and doesn't really know one way or the other; then gains what seems to him to be proof of guilt; then discovers that it was not actualy proof of guilt? Perhaps we need to look at this presumption that the attorney actually knew that the client was guilty.
But, once the lawyer investigates, he or she is going to have to look at the evidence that the prosecution is going to use and then ask the client about it. At that point the lawyer's original do-I-or-don't-I system for taking cases generally is now irrelevant as the lawyer is inevitably going to start thinking one way or another and so will personally have to act on that belief so formed.
More importantly, he has a professional obligation to carry out his job, once he has taken the case. But those original questions could be asked regardless of whether the attorney knows for a fact, strongly believes, has a hunch, or remorely allows the logical possibility of guilt.
is a rational criminal justice system properly adversarial or inquisatorial?
I tend to favor an objective inquisitorial system. The standard objection is that it favors the state, but a counter-objection is that decisions by amateurs leads to an irrational game-theoretic approach to justice.
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Perhaps I've gotten confused about the assumptions that people are operating on.

My question involves a scenario that is tantamount to a would-be client sitting down at my desk and saying, "I'm charged with murder. I'm guilty as hell. Will you defend me?"

Professor Odden, have you changed your overall stance since your earlier posts? It appears so, however, I'm a bit confused about some of the contexts people have been operating in, in recent posts.

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Professor Odden, have you changed your overall stance since your earlier posts?
Yeah, I temporarily forgot how the procedure itself is important. Do not lie, do not fabricate evidence. Misdirect as you will, the facts are the facts, and applying reason to fact will only lead to one conclusion, if the professionals are on top of things (as seems not to have been the case with Bronston). BTW, your client, has he been in a nuthouse recently? I understand there is this condition where people confess to stuff all over the place. I was wondering if your guy was a habitual confessor, and whether in that case a proffered confession really is the basis for a knowledge claim.

Doubts about your client's veracity notwithstanding, while you should try to get him to take the spanking (or negotiate the beheading down to a spanking), if you were me, your general professional obligation would be to the integrity of the process, so you would force the prosecutor to actually prove the case, beyond reasonable doubt. If rhetorical jibber-jabber distracts the jury from the cold, hard facts, then the case was not proven.

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If rhetorical jibber-jabber distracts the jury from the cold, hard facts, then the case was not proven.

I apologize, but I'm not seeing where the line is between "rhetorical jibber-jabber" and lying (i.e., "This is a case about mistaken identity . . .").

Also, I'm now back to being confused about the conflict (if there is one) between the value of the process and what the process should result in (the innocent going free and the guilty being punished).

The process itself permits tactics that I would argue are dishonest. I can say, "This is a case about mistaken identity" when I happen to know that it isn't such a case. I can use a witness' conviction for drug possession to imply to the jury that the witness is dishonest, even if the witness ISN'T dishonest.

Perhaps answers to these questions would help:

1. Why would I feel guilty for helping a rapist go free?

The reason I ask is because, even if the answer points to an error in my thinking, I would like to know what that error is, so I can correct it.

2. Should I, or should I not, feel guilty in the above example? Why?

3. If, under the standards, procedures, and rules of the system, a rapist goes free, is that "justice" simply because it is the product of the standards, procedures, and rules of the system? In other words, is "justice" defined by the result of the system, or is it defined by the result that should have been reached morally? If it is the second, then aren't I, the defense attorney, fighting for the incorrect one?

I can stand before a jury and present a closing argument that is riddled with fallacy, semantics, and explicit or implicit lies or lies by omission. Politicians use the same all the time - and it is extraordinarily effective. The politician doesn't care if 49% of the population knows that the candidate is lying through his teeth, so long as the other 51% can be counted on to be illogical, irrational, or and/or not very bright (which they usually are). As a defense attorney, I'm in a much sweeter position than the politician. I only need to count on one, or a few, of the jurors to be illogical, irrational, and/or not very bright! The system allows these tactics. There is no "objection Your Honor, fallacy of appeal to popularity." Sure, the prosecution can (try to) explain the fallacy, but maybe there is one juror on the panel who just doesn't understand what the prosecutor is saying. Exactly as I had hoped/counted on.

I wonder if the Francisco speech on money is analogous here. In it, he asks whether one had earned money by pandering to men's vices or stupidity, through fraud, doing work "you despise for purchasers you scorn," etc., and implies that having done so would be be devoid of virtue. In my above paragraph, would not the defense attorney using such tactics (again, permitted by the system) be playing off of the juror's stupidity? Isn't a lie, even one permitted by the system, a "fraud?" Isn't a rapist, the client, a "purchaser you scorn?"

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I apologize, but I'm not seeing where the line is between "rhetorical jibber-jabber" and lying (i.e., "This is a case about mistaken identity . . .").

Because you are thinking of the question in the wrong way. An attorney can create reasonable doubt without dishonestly asserting anything about the case or his client. To rephrase your example, "Isn't it possible this may be a case of mistaken identity?"

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Because you are thinking of the question in the wrong way. An attorney can create reasonable doubt without dishonestly asserting anything about the case or his client. To rephrase your example, "Isn't it possible this may be a case of mistaken identity?"

Just to make sure, are you saying that "this is a case about mistaken identity" is dishonest and/or improper? Are you also saying that "asserting anything about the case or client" that is explicitly or implicitly dishonest is improper, even if the system allows and/or encourages doing do?

Isn't entering a "not guilty" plea, when the client IS guilty, dishonest?

Edited by amadeus-x
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Just to make sure, are you saying that "this is a case about mistaken identity" is dishonest and/or improper? Are you also saying that "asserting anything about the case or client" that is explicitly or implicitly dishonest is improper, even if the system allows and/or encourages doing do?

My contribution shouldn't be taken as anything more than making the distinction between "rhetorical jibber-jabber" and dishonesty. Any statement the attorney makes about the client which is other than what actually happened is dishonest. Some lawyers do in fact assert things that are dishonest. Others ask questions of the witnesses and / or jury members which are decidedly there to cause doubt, but are not as decidely dishonest (unless the lawyer proceeds to answer those questions himself while knowing otherwise).

Edited by RationalBiker
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Isn't entering a "not guilty" plea, when the client IS guilty, dishonest?

No. You're thinking of "not guilty" in one sense, namely, that the client is asserting that he did not in fact commit the offense. "Not guilty" has another sense in this context, and that is the legal sense. A not guilty plea is just another way of saying "I am legally not guilty because I have not yet been convicted, and I am refusing to confess to the crime with which I have been charged. If you want to put me away, prove it."

If you say that pleading not guilty is dishonest (when one did commit the crime), you must also say that pleading the Fifth is dishonest. It is true that by pleading the Fifth one is not saying "I didn't do it," but rather "I'm not saying anything." However, if one refuses to enter a plea, the court will enter a not guilty plea anyway. Neb. Rev. Stat. 29-1819.

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3. If, under the standards, procedures, and rules of the system, a rapist goes free, is that "justice" simply because it is the product of the standards, procedures, and rules of the system? In other words, is "justice" defined by the result of the system, or is it defined by the result that should have been reached morally? If it is the second, then aren't I, the defense attorney, fighting for the incorrect one?

Though I know what you're getting at, I do take exception with your characterization of the factually correct result as the one that should have been reached morally because it rejects the role of procedural safeguards as part of the idea of justice. Take the case where the defendant is properly acquitted because there was not enough evidence for a rational fact-finder to convict. If it turns out the defendant did commit the crime, would you rather ignore the prohibition against double jeopardy? I say that justice has been done because not allowing multiple prosecutions for the same offense is more important than reaching the factually correct result (eventually) in a particular case.

Let's flip the situation around. Say that someone is convicted of a crime he in fact committed, and that should be a crime, because the prosecutor argued that Jesus Christ was the Son of God, and he revealed to the prosecutor in his sleep that the defendant was guilty. Do you think that is justice? I do not.

I can stand before a jury and present a closing argument that is riddled with fallacy, semantics, and explicit or implicit lies or lies by omission. . . .

Perhaps you should make an argument in favor of nonunanimous verdicts (which as far as I know are sometimes permitted). And/or in favor of restricting the use of certain arguments, such as the argumentum ad populum you mention. A downside of either, however, would be that you couldn't use them to defend those charged with bogus crimes, unless you had already managed to eliminate those too.

A defense attorney is in a much different position than the politician. When the defense attorney succeeds, the mighty sabre of government is returned to its golden sheath. When the politician succeeds, I think you know what usually happens.

I wonder if the Francisco speech on money is analogous here. In it, he asks whether one had earned money by pandering to men's vices or stupidity, through fraud, doing work "you despise for purchasers you scorn," etc., and implies that having done so would be be devoid of virtue. In my above paragraph, would not the defense attorney using such tactics (again, permitted by the system) be playing off of the juror's stupidity? Isn't a lie, even one permitted by the system, a "fraud?" Isn't a rapist, the client, a "purchaser you scorn?"

I certainly think a rapist is a piece of dung, but I think he's a piece of dung whether I'm defending his rape case or selling him a wax sculpture of William the Conqueror. Either your point is wrong or I don't get it. In case you were wondering, you have my permission to rephrase, counselor. :worry:

As you know (hopefully), while I take issue with some of your presentation thus far, I consider this entire discussion to be immensely fruitful. I hope it continues.

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I apologize, but I'm not seeing where the line is between "rhetorical jibber-jabber" and lying (i.e., "This is a case about mistaken identity . . .").
The defense attorney and the prosecution provide nothing but rhetorical jibber-jabber. The case is about the facts, not the story-telling of the prosecution and defense. I am not supporting the current system in all of its details, just pointing out that it does have rational roots and that demanding ideal behavior by all parties might lead to the total collapse of the justice system (or, a very nice reform). An alternative ethic would be to say that an attorney may not say or suggest anything in court that he does not know to be absolutely true. Let's focus on the prosecution for the time being. The first problem he will face is that when describing the suspected acts, he will always have to say "We hypothesize that Smith broke into the house and stole the jewels; we hypothesize that it was Smith's car photographed passing through the intersection 1 mile from the house and we hypothesize that this took place 5 minutes after the time that we hypothesize the break-in took place". To say that "Smith broke in to the house at 11:00 pm and was photographed less than a mile away speeding through an intersection 1 mile from the house" is a lie, because it asserts as fact something that the prosecutor only strongly suspects but does not know as fact. In a context where prosecutors routinely "lie" (mislead) in this sense, it is right that you return the complement with the same level of misleading. I'm not approving of the rhetoricization of law, just pointing out that it is a fact that you have to deal with.

I don't think attorneys can be allowed to just say anything they want to with impunity -- I don't know what the actual rules are, but I'm betting that they can't "testify" by injecting assertions of material fact that are not in evidence. I can't address the text "this is a case about mistaken identity" without a lot of concrete background including all of what the attorney said -- I need a transcript. I do think that it is possible to make the argument effectively and adhere to a literal truth requirement, but you have to give me the raw materials to edit. I can't tell whether this mistaken identity statement is or is not a lie, because I don't know the background. Vern's edit is a possible rewrite, and I think something even stronger is possible -- an assertion that there is no proof offered showing that this isn't mistaken identity.

Also, I'm now back to being confused about the conflict (if there is one) between the value of the process and what the process should result in (the innocent going free and the guilty being punished).
The ultimate goal of the legal system is that all and only the guilty should be punished in proportion to their misdeeds. In order for that goal to be realized (man being a conceptual being that deals best in broad principles), certain principles are set forth to achieve justice. These principles are not just pure rationalizations, but are judged in terms of whether they actually bring into effect the desired end. When a man is accused of a crime, a conflict of interests arises -- the interest of the government to maintain order in society by imprisoning or executing the accused, and the interest of the accused to retain his life and freedom -- which justifies two separate principles regarding what the prosecution and defense should do. A principle (regarding action) is valid only to the extent that it does bring people to the goal. Because of the contradiction between the interests of society and interests of the individual in cases of criminal prosecution, I have a very hard time seeing any one general principle that covers both prosecution and defense which is as effective as having a principle regarding the duty of a prosecutor, and a principle regarding the duty of a defense attorney which, together, best result in justice.

This is a basic application of logic and the conceptually-driven mentality of Objectivist epistemology and ethics. Man has only one way to predictively grasp the universe -- at the conceptual level. You can observe concretes without have any principles, but to predict, you need to have principles that abstract away from the details of specific instances. I offer the Defense Principle ("the defense counsel has the affirmative duty to show that the prosecution's accusation is unproven") as one half of a system whose parts work together to give justice. The Defense principle does not include an exception of the kind "unless you think the guy actually is guilty", because the desireable effect of the "unless" clause is already implied by the Prosecutor's Principle -- "provide the proof that the accused did commit the crime". These principles taken together result in justice in the cleanest way.

Again, I think a more articulated account of the supposed dishonesties is called for. I think that a person who is convicted of drug smuggling is dishonest, even though I think that drugs should be freely and openly imported. I would have no qualms at all in using a smuggling conviction as proof of dishonest character. Apply the literal truth standard to the statement "this is a case about mistaken identity", and tell me in what way this is a lie. Remember, I'm gonna come back at you if you don't give a full enough account about what the defense attorney actually knows, and what the prosecution has alleged in court. It is never sufficient to say "Let's just suppose he knows, somehow", and "what the case is about" is highly dependent on what the prosecution has alleged.

1. Why would I feel guilty for helping a rapist go free?
You would only feel guilty for betraying yourself (unless you're irrational and guilt just pops out of nowhere, but I wouldn't assume that to be the case). Do you have a personal ethical principle that says that you should never do anything that allows a rapist to go free, and does that principle outweigh any inclination you have to require the state to actually prove its case? I can't really tell why you would feel guilt -- that's psychological introspection that you would have to do. Was your choice of "rapist" deliberate, that is, what if you change it to "shoplifter", would that change anything? If so, then you may be adhering to a credo whereby certain crimes, specifically murder and rape, are in a special category, where the seriousness of the crime outweighs some aspect of the principle that the state must absolutely prove guilt and refute any counter-arguments of innocence.
2. Should I, or should I not, feel guilty in the above example? Why?
You should not (that's not blanket "nothing you can do should generate guilt", just denying the implication that letting an guilty man go free should automatically create guilt). Guilt should only arise from betraying yourself -- in what way is it a betrayal of self to defend an actually guilty man (and I can't see why there should be any difference in guilt attached to the case where the guy gets off vs. is convicted anyhow).
3. If, under the standards, procedures, and rules of the system, a rapist goes free, is that "justice" simply because it is the product of the standards, procedures, and rules of the system?
This is about the point I addressed above. Justice is where all and only guilty men are punished in proportion to their deed. In order to achieve justice, there are certain principles that have to be adhered to, which translate into much more concrete prescriptions for what you should to. The tradeoff is that the principle "protect the accused against the accusations of the state" has more concrete entailments and limits the scope of your concern than the broader principle "justice", and removes the contradiction that you might be working for the defendant or against him, depending on the case. In short, your interest is in defending the accused which is part of a broader scheme for reaching justice.
I can stand before a jury and present a closing argument that is riddled with fallacy, semantics, and explicit or implicit lies or lies by omission.

....

I only need to count on one, or a few, of the jurors to be illogical, irrational, and/or not very bright!

So perhaps you agree with me that the jury system sucks. I wish I had more knowledge of inquisitorial justice, though the problem is that it prevails in countries where the individual is already totally subservient to the state and individual rights are a lesser consideration.

And, I think that when an attorney enters a plea for a client, he is reporting the client's plea, and saying "He says he is not guilty" is totally true. I'm only addressing the question of attorney dishonesty, and there is no dishonesty in reporting what the client says.

[ed: I see Matt just made the points about acting on principle. I'm slow in the morning]

Edited by DavidOdden
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Now I'm confused. If you know that the person is guilty, you can't have reasonable doubt that he is guilty. So in invoking "reasonable doubt" at all, I thought you were setting aside that context.

The reasonable doubt part was an off the cuff comment I made, and wasn't about dealing with Amadeus' actual question. The point then got developed because I was asked about it, and now that I think about it more it departed somewhat from what Amadeus actually had in mind. I really shouldn't make such comments. Don't worry man, my bad.

More importantly, he has a professional obligation to carry out his job, once he has taken the case. But those original questions could be asked regardless of whether the attorney knows for a fact, strongly believes, has a hunch, or remotely allows the logical possibility of guilt.

I thought the issue was how to do the job ethically given considerations about what the lawyer knows? What a lawyer ought do before a case is formally taken and what after are separate contexts. What answers an ethical lawyer needs to those questions depends on which side of that river he or she is on - which includes recognition that ethical answers may not be possible in some circumstances. Amadeus' implied context is after formal acceptance of the case, and I embellished it as I thought it would rationally need to be plausible, hence confusion and departure from what Amadeus wanted. As I said, my bad.

And as well as 'doing his job,' doesn't a withdrawal remain an option if a client insists on entering a plea of innocent that the lawyer knows very well to be false? I still think that is the only ethical choice (as everyone else has also pointed out) if the client insists on entering a plea of innocent the lawyer knows to be a crock.

...

As to Amadeus' desire to see the government make its case, you are right in raising the need for rationality in broader legal procedure. Now that I remember, isn't a prosecution still required to make at least some sort of case to a judge to ensure that the defendant isn't pleading guilty improperly for some reason? Were such a requirement not actually in place then it should be as it is rational to have such a requirement for that very purpose. That, then, would take care of Amadeus' desire (in principle, at least), though as the defense attorney in the matter he wouldn't be as much in the driver's seat making it happen as were a plea of innocent to be entered. Given the need for such a requirement, I return to one of my original comments about the system as such and note that the lawyer's desire to get the government to prove its case in the absence of the requirement or poor implementation of it in practice should be met by that lawyer writing a legal-procedure journal submission or similar arguing for the introduction or improvement of such a requirement, rather than aid and abet an injustice.

JJM

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And as well as 'doing his job,' doesn't a withdrawal remain an option if a client insists on entering a plea of innocent that the lawyer knows very well to be false? I still think that is the only ethical choice (as everyone else has also pointed out) if the client insists on entering a plea of innocent the lawyer knows to be a crock.

I've actually pointed out the opposite. A plea of "not guilty" is not a declaration of fact, but rather a statement of legally operative significance basically equivalent to "I refuse to incriminate myself" or "I refuse to declare myself legally guilty." The question asked is not "Did your client do it?" it's "How does your client plead?"

We're not talking about civil court, where a defendant must respond truthfully to the plaintiff's allegations or be deemed to have admitted them. We're talking about criminal court in a country like the United States where the defendant is not required to dig his own grave. (If you disagree with the Fifth Amendment's prohibition of compelling a criminal to bear witness against himself, that seems like a topic for another thread.)

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And as well as 'doing his job,' doesn't a withdrawal remain an option if a client insists on entering a plea of innocent that the lawyer knows very well to be false? I still think that is the only ethical choice (as everyone else has also pointed out) if the client insists on entering a plea of innocent the lawyer knows to be a crock.
Well, there's the letter of the law and the practice... Dudes who know, help! AFAIK, the rules prohibit unilaterally withdrawing without court permission, and I don't think permission would be forthcoming. To make this less of a floating abstraction, Smith is busted for robbery, he makes his phone call to an attorney, Chuck, who agrees to represent him and appears with him at the arraignment. In discussing the defense, Smith says "So like, how do I avoid going to prison for perjury, given that I actually did heist the jewels?". That confession is inadmissible; Chuck could beg and cajole Smith to plea bargain, but if Smith refuses, I don't think Chuck can just unilaterally drop the guy. He could go to a judge and say "Dude (uh, Yerronner), the guy confessed to me, I can't defend him. Can I get out of this case?", but I'm betting that the judge would be irritated for even being asked. I dunno, maybe not.

At any rate, apart from the legal prohibition against dropping a client because you think they are guilty (de minimis a breach of contract), it would be unethical to shirk your professional commitment to defend the accused. Not every attorney has such a commitment, for example civil lawyers (there being no accused) and prosecutors. You would have to be very up-front about the fact that you will not defend any clients except the obviously innocent, or whatever your principle is.

Given the need for such a requirement, I return to one of my original comments about the system as such and note that the lawyer's desire to get the government to prove its case in the absence of the requirement or poor implementation of it in practice should be met by that lawyer writing a legal-procedure journal submission or similar arguing for the introduction or improvement of such a requirement, rather than aid and abet an injustice.
Writing a protest article in a law journal probably has no cash value. I understand that it may be more effective in Europe, where legal precedent is sometimes prohibited by law, scholarly articles have a higher standing, and they have an active, inquisitorial judge as opposed to our passive, corrective judges (assuming Australian judges are like US judges, except for the vowels).

We don't need any articles to be written urging some kind of "showing of guilt" requirement on the prosecution, since we already have such a requirement, namely that the prosecutor has to present a proof of guilt. I think there may be a requirement in some jurisdictions that a person can not plead guilty to murder and be executed without a trial, but I am unaware of any requirement of proof beyond that needed to charge the person. Is that what you're referring to?

As Matt says, when an attorney says "Not Guilty" in response to "How does your client plead?", that is a completely honest statement. It is a true report of fact, even if the laywer and perp know he did the deed. It says "Prove it in court". The attorney is not saying "I swear that I know that my client did not do it". The client pleads, the attorney just utters the words on behalf of the client.

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I feel kind of goofy for coming in this late in the thread, but I would actually say that there's nothing immoral about defending a guilty person in a court of law.

I think you're looking at it from the perspective that the attorney's job is to provide "justice" when it really isn't. The defense or prosecution attorney is there to make sure that the procedural rights guaranteed by law are being carried out. Dispensing justice is the job of the judge or jury, not of either attorney. Neither is it the attorney's job to guarantee their clients' interests but to advise the client on their procedural rights and how to go about making the best use of them.

If I were an attorney faced with defending a man that I knew to be guilty I'd do the best job that I knew how because I'd know that I am serving the idea of justice in the long-term, overall sense by serving the machinery that in its turn serves justice. The finding of guilt or innocence is out of my direct control, but seeing to it that the rules are enforced, is.

If the idea of serving the machinery of justice rather than justice itself is onerous to you, don't go into law. If you think the machinery is so corrupt that you could not bear to function under it's artificial rules, then maybe you need to work on reforming it instead of serving it.

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Okay, so now I have quite roughly 74,006 more questions!

I'll start with this one: How on earth is a man who brings some pot back from Amsterdam "dishonest" in such a way as to legitimately affect his credibility?

Take this example: My friend and I are in my house. My friend is in the basement. A machete wielding madman kicks in the door. He holds his unholy blade to my throat and asks, "is anyone else here?" I say, "no."

Okay, so I've been technically "dishonest." I had every right to be.

In the former example, our man had every right to bring some bubonic chronic back from Amsterdam. He certainly lied by omission on his customs declaration, but they didn't have any right to ask. I say he did nothing wrong, and I fail to see how it would be appropriate to tell others that he is a "dishonest man." To me, that sounds like telling people that I am a dishonest man because of my actions in the later example.

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How on earth is a man who brings some pot back from Amsterdam "dishonest" in such a way as to legitimately affect his credibility?
He has to lie when he crosses the border and says that he's not smuggling dope.
Okay, so I've been technically "dishonest." I had every right to be.
But you don't seriously equate lying to save your life with lying to sneak in some illegal skag, so you?
In the former example, our man had every right to bring some bubonic chronic back from Amsterdam. He certainly lied by omission on his customs declaration, but they didn't have any right to ask.
When I pass through in July, I'll get an extra form and send it to you -- as far as I know it's a direct lie.

I think maybe we need to sort out what you think it means to be "honest". For example, since you can be compelled by the court to answer questions, all questions are in principle under duress, and therefore all questions are by the "no right to ask" principle improper, and not relevant to evaluating honesty. But wait, we are exactly asking about the case of a person being asked questions which they have no right to ask. I think the question has a very simple answer. An honest man will not lie, and will therefore not cheat on his taxes, lie to cops investigating crimes and hypothesized crimes (Martha), perjure himself about his sexual practices (Bill) or lie about dope smuggling. He can refuse to answer (and the dogs will get him), he can assert his constitutional right to bring in reefer (anybody wanna take that case?) or, of course, he can lie. That is, he can be dishonest, fake reality. Dishonesty isn't defined in terms of whether some party has the right to ask the question, it has to do with whether you tell the truth.

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He has to lie when he crosses the border and says that he's not smuggling dope.But you don't seriously equate lying to save your life with lying to sneak in some illegal skag, so you?When I pass through in July, I'll get an extra form and send it to you -- as far as I know it's a direct lie.

I think maybe we need to sort out what you think it means to be "honest". For example, since you can be compelled by the court to answer questions, all questions are in principle under duress, and therefore all questions are by the "no right to ask" principle improper, and not relevant to evaluating honesty. But wait, we are exactly asking about the case of a person being asked questions which they have no right to ask. I think the question has a very simple answer. An honest man will not lie, and will therefore not cheat on his taxes, lie to cops investigating crimes and hypothesized crimes (Martha), perjure himself about his sexual practices (Bill) or lie about dope smuggling. He can refuse to answer (and the dogs will get him), he can assert his constitutional right to bring in reefer (anybody wanna take that case?) or, of course, he can lie. That is, he can be dishonest, fake reality. Dishonesty isn't defined in terms of whether some party has the right to ask the question, it has to do with whether you tell the truth.

So, if I lie to the madman with the blade, I'm "evading reality?" I'm a "dishonest person?"

I certainly think that saving my or another's life is more important than smoking pot. However, it appears as though your logic would apply to both.

I believe you are correct in saying that any time a person lies, they are being dishonest. However, I do not belive that every instance of dishonesty is "faking reality" and/or immoral. Thus, I believe that when a person has been dishonest, but not immorally so, I think it is unfair to call their legitimate, moral character into question. In other words, if the definition of "honest" that we are now operating under is correct, then I see no way that one's "honesty," in and of itself, can every be a pronouncement on their character. Under this definition, I can imagine a scenerio wherein I could say, "Rick is a dishonest man, and highly moral" or "Rick is an honest man, and a dirtbag." Knowing whether or not he is "honest," by itself, tells me nothing of his morality or of his disposition to tell the truth when he should.

If I was in the basement, my girlfriend had a knife to her throat, and she told the nutjub that nobody else was home, I do believe that rather than thinking, "Gee, I have a dishonest, reality evading girlfriend. I can't legitimately believe her when she says that she doesn't cheat on me," I would think, "Wow. My girlfriend kicks arse!"

Edited by amadeus-x
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I believe you are correct in saying that any time a person lies, they are being dishonest. However, I do not belive that every instance of dishonesty is "faking reality" and/or immoral.
Okay, but I suggest that you pursue this as a separate question. There are various threads on the virtue of honesty here, some recent (last 6 months?) and Tara Smith has a nice paper in (I think) The Journal of Value Inquiry on the topic. It would be more relevant to focus on the specific issue of perjury. If a man is willing to be dishonest, you have to inquire, when and why will he be dishonest. If the only time a man is willing to be dishonest is to save his life (or the life of a person of value), that man is still basically honest. This is basic morgue-avoidance morality -- a lie or actual non-existence. If a man is willing to lie where prohibited by law, even if his lie does not violate anybody's rights, then we have to conclude that he is willing to trade some of his virtue for an element of convenience and benefit to himself. At that point, it becomes really important to know just how far he is willing to let his virtue go, before he says "No, that would be wrong, that isn't a lie that I could tell". Even if the only fact that you can find on record is his bust at DTW, the fact that he lied on the record at that time is suficient grounds to find it plausible that he could lie on the stand. No rational man would tell the mad machete man that he's got a shotgun-totin buddy in the next room ready to blow his head off (well, okay, bad choice of weapon under the circumstance). So the fact of lying in that circumstance is only proof of rationality. But the fact of lying on a customs declaration when you do have choices that don't place you on a slab -- openly declare the drugs, refuse to sign, smoke the joint in Amsterdam -- is proof that you have a special disregard for the truth. Then it is right to inquire, how much? Why should we assume that the person is telling the truth? Maybe he figures "Hey, I'm being forced to answer these questions, I have no moral obligation to tell the truth". The jury needs to know any relevant facts for deciding which testimony to believe, and that would be a relevant fact.
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Okay, so now I have quite roughly 74,006 more questions!

Is that all? I've got about 125,892 of my own. (The banker offered me 45,713 but I said no deal.) I do think we are making progress, however, which is great. For example, my understanding of the nature of the plea has expanded considerably.

So Luke, I know you and I would agree that when defending someone from a bogus crime we would be totally fine using philosophically bogus arguments (e.g. acquit my client because the sky is blue). It further seems to me that you are not fine using such arguments when defending someone who you know committed a proper crime. (I am still unsure.)

In light of that, I am curious what you think about the propriety of such arguments when defending someone who is charged with committing a proper crime, but you are unsure whether he did it. Your answer on this, even if not a complete one, might help me understand the nature of your argument better.

Or maybe we could just end this whole discussion by seeing what Professor LaFave tells us in his hornbook.

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In the former example, our man had every right to bring some bubonic chronic back from Amsterdam.

Technically speaking he did not have every right since he did not have a legal right to bring it into the country. :thumbsup:

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Since when do we answer moral questions by entertaining hypotheticals? Issues like “you lied for your client” or “you allowed a guilty person to go free” are entirely too concrete-bound. WWARD (What Would Ayn Rand Do?) Inquire about the principles at stake. There are two competing principles here:

1. People who commit crimes (violate others’ rights) should be punished.

2. The rule of law, and in particular the adversarial legal process, is vital to protecting rights.

Unless you are an anarchist, then principle #2 is more important. Otherwise you would just murder guilty people in the street.

For people to say that they believe in the adversarial legal process on the one hand, but who say that they can’t stomach “immoral” defense attorneys on the other, strikes me as extremely disingenuous… sort of like people who don’t like seeing bunnies killed but love their hamburgers.

I have no problem imagining a defense attorney of immense integrity who commits himself to defending his clients based on his firm belief in the value of the adversarial legal process.* He might defend some people he believes guilty, some he believes innocent, and some about whom he’s not sure. Maybe if he’s good he’ll get guilty people on the streets so they can kill again. So what? Those murderers’ victims are casualties of living in a society that follows the rule of law. I’m sure the alternative, living in a North Korean style dictatorship, would be a lot worse.

Finally, I’m mistrustful of the easy answer of “refuse guilty defendants.” Who should defend them? No one? Your immoral colleagues? So you like the rule of law, but you require a certain number of immoral people to make the principle work? A moral principle (like the adversarial system) should work even if all participants are moral. Ergo, defense attorneys are moral. QED.

If you believe in the adversarial process as a moral principle, then you should have no problem defending guilty clients. After all, if you can’t stomach how the sausage is made, then don’t eat the sausage… or at the very least, don’t be in the sausage business.

*An example of such a character in the world of TV legal drama is Eugene Young from “The Practice.”

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Since when do we answer moral questions by entertaining hypotheticals?
Since when do you think someone here has attempted to answer a moral question by entertaining a hypothetical?
For people to say that they believe in the adversarial legal process on the one hand, but who say that they can’t stomach “immoral” defense attorneys on the other, strikes me as extremely disingenuous… sort of like people who don’t like seeing bunnies killed but love their hamburgers.
Now that's not really fair. It's a lousy analogy unless you mean they love their bunny-burgers. I don't like seeing cows killed, whereas I do like seeing the Cindy Crawford Coke commercial, and I love a good burger.
Finally, I’m mistrustful of the easy answer of “refuse guilty defendants.” Who should defend them? No one?
But I think you misunderstand the alternative. The question is whether a guilty man should be defended. The guilty man should admit his guilt and take his punishment.
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Since when do we answer moral questions by entertaining hypotheticals? Issues like “you lied for your client” or “you allowed a guilty person to go free” are entirely too concrete-bound. . . .

As I interpret the essence of Luke's inquiries, I see two major and distinct questions:

1. Will a moral attorney defend a guilty man?

2. What sorts of tactics are proper when defending anyone (although the answer may vary depending on whether one knows of guilt, the propriety of the law, etc.)?

Another way to put these are "Should I defend the guilty?" and "How should I defend someone?". With respect to the second question, raising the issue "you lied for your client" is entirely sensible.

I reiterate that this is only my interpretation, not Luke's words.

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