Jump to content
Objectivism Online Forum

Will a moral attorney defend a guilty man?

Rate this topic


amadeus-x
 Share

Recommended Posts

To DavidOdden... I agree a guilty person should admit their guilt. But what if they don't? Do they have a right to representation in the adversarial process? I would say definitely yes, since the adversarial process is essential to the American RoL and protecting the rights of the innocent. If the system is moral, then how can it be immoral to play your role in that system? Or do we good and moral people have to free-ride on the immorality of others in order to live in a free society? That strikes me as hypocricy. You didn't like my bunny analogy, so I'll try again. It's like hippies who whine about military killing of civillians but want to live in a safe country. Either admit the full costs of what you want, of say you don't want it. If you really are suggesting we should abandon the adversarial legal process for trial by ordeal, then at least sack up and say it.

To Groovenstein... There are canons of legal ethics that restrict the means of how you can defend a guilty person. For example, you can't suborn perjury (have someone lie on the stand about their guilt), but you can lie about their guilt in closing arguments. I see no problem with this distinction, since the category of "evidence" is an extremely important one in our legal system. You also can't intimidate witnesses or disobey judicial orders about interaction with the media.

What's wrong with legal ethics as a guide to morality within the context of being an attorney?

Can anyone offer an example of a means that they would consider immoral that are still acceptable within the canons of legal ethics?

In the end, I think people's moral umbrage comes from their distaste for lawyers. If you think that being a good lawyer requires you to be immoral, then I would suggest you check your premises. Either:

A. We need to move to a legal system without lawyers. Or...

B. You need to revise your sense of what's moral within the context of being a lawyer

You can't have your cake and eat it too. Take what you want and pay for it., etc. etc.

Link to comment
Share on other sites

  • Replies 82
  • Created
  • Last Reply

Top Posters In This Topic

I agree a guilty person should admit their guilt. But what if they don't? Do they have a right to representation in the adversarial process?
In the sense that if they can find a person who is freely willing to actually defend them, they do. Otherwise, they have no such right at all.
I would say definitely yes, since the adversarial process is essential to the American RoL and protecting the rights of the innocent.
It is how the legal system works in the US, but it isn't a necessary component of the notion "rule of law" and protection of rights. The alternative inquisitorial system does the same thing, and in addition, may avoid the problems of an otherwise moral man acting contrary to the principle of justice, mentioned in this thread. In addition, the question of having an adversarial system is separate from having a representative -- you can have one without the other (as happens, all 4 ways, i.e. representative + adversarial, representative + inquisitorial, self-representative + adversarial, self-representative + inquisitorial).
If the system is moral, then how can it be immoral to play your role in that system?
You're presupposing a particular pre-determined "part" in the system -- how did you make that determination?
Or do we good and moral people have to free-ride on the immorality of others in order to live in a free society?
No, we will still live in a free society of all attorneys adopt the moral principle that they will not defend a client who they know to be guilty in court. The consequence of that would be that guilty people would have to plead guilty, hide their crimes from their attorneys better, or self-represent. It wouldn't be the end of the universe if such a moral principle (of refusing to represent a person who you know to be guilty) did get adopted by all attorneys.
If you really are suggesting we should abandon the adversarial legal process for trial by ordeal, then at least sack up and say it.
First, unless that's some British idiom I haven't heard, "sack up" doesn't mean anything. Are you trying to say "suck it up?" But more importantly, I am in fact arguing against the jury system, which leads to the moral crimes in defending the guilty. I also favor some version of the inquisitorial system, though actually an amalgam inquisitorial / adversarial system. You're confused about the N-chotomies of legal systems. The adversarial system is contrasted with the inquisitorial system; trial by ordeal is orthogonal, since it's about a kind of evidence, not the organization of the questions.
You can't have your cake and eat it too.
Are you proposing that if the cake is rotten and you're an attorney, you should be forced to eat it? Or that you should eat it because it's rotten cake and somebody has to eat the damn cake? I propose that when the cake is rotten, it is right to throw it away: you should only eat it is there is a rational value to eating rotten cake. That's the basical question we're investigating, whether there is any rational value to eating rotten cake. If it is not rotten, then the decision to eat it would make more sense.
Link to comment
Share on other sites

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.

I question your premise that the rule of law is more important than the concept of justice to a rational man. I would suggest that they are equally important concepts. If you are going to try to assert that the occasional case where a lawyer knows a person is guilty and refuses to represent him is supporting anarchy, then I would make the assertion that compelling an attorney to represent guilty people is supporting systematic injustice. This will in turn lead more people into taking matters into their own hands... which is anarchy too. Sorry, but I don't see how one is better than the other.

Our justice system doesn't exist solely to protect the rights of the accused. In total (in theory anway), it exists to protect all people's rights, including those of the victim.

Link to comment
Share on other sites

1. I would say that the adversarial system is far better than the inquisitorial system at protecting the rights of the innocent. In fact, the inquisitorial system has basically no such protections except our "trust" in the inquisitors. I find your trust in our government truly touching, but since when did Objectivists have such mad love for the state? Given the amount of people who get falsely convicted due to error or prosecutorial misconduct in a system where there are defense attorneys, I'm not eager to abandon the adversarial system. Moreover, while it is possible to imagine an inquisitorial system consistent with the rule of law, it is contrary to a very long tradition of Anglo-American and even Roman law. I would go so far as to say that it is one of its four essential pillars (along with a presumption of innocence, habeas corpus, and a restriction on ex post facto), and slimy defense attorneys are a small price to pay for it.

2. The Supreme Court has held for over forty years that people have a right to an attorney (I think the decision was Gideon), Their reasoning was that people are generally not in fact competent to represent themselves. Do you really think the average person is competent to argue a speeding ticket, much less a murder trial? (And that's bracketing the issue of legal expertise and rules of evidence, which is extremely important) This issue becomes especially important when the defendant is mentally disabled, which is a substantial number of defendants. Do you really think a guy with an IQ of 80 could represent himself?

3. I have no problem with the court ordering attorneys to represent the guilty. As "officers of the court," they are more like soldiers than plumbers. If the Army tells you to go to Iraq, you go to Iraq. If the court tells you to represent John Doe, you represent John Doe. (You should of course always have the option of quitting rather than obeying the order) I believe in England there are two types of attorneys, one of whom is not in fact an officer of the court. Maybe we should move to that system so some people could opt out.

4. "Sack up" is an American expression. And you did "sack up" by saying you wanted to abandon this whole attorney thing, a position I find shocking beyond belief.

5. Can you offer an historical example of an inquisitorial legal system you would feel comfortable being tried under? Or is it just a coincidence that all rights-respecting judicial systems have been adversarial?

Link to comment
Share on other sites

I question your premise that the rule of law is more important than the concept of justice to a rational man. I would suggest that they are equally important concepts. If you are going to try to assert that the occasional case where a lawyer knows a person is guilty and refuses to represent him is supporting anarchy, then I would make the assertion that compelling an attorney to represent guilty people is supporting systematic injustice. This will in turn lead more people into taking matters into their own hands... which is anarchy too. Sorry, but I don't see how one is better than the other.

Our justice system doesn't exist solely to protect the rights of the accused. In total (in theory anway), it exists to protect all people's rights, including those of the victim.

But non-anarchists do in fact subordinate their desire for justice to the rule of law.

Can you imagine a legal system which protects the rights of the innocent but not the guilty?* DavidOdden has suggested the inquisitorial system, but that has a long track record of not in being able to tell the difference between the two categories. I would say that it is an unavoidable fact that to protect even the most basic rights of the innocent, we must have extremely stringent protections for the rights of the guilty. All governments have a propensity to abuse the rights of their citizens, which is why we need as many checks and balances as possible.

Additionally, people taking the law into their own hands is much better than the government abusing the rights of its citizens. I remember learning my first day in Objectivist school that no individual can do as much harm as a non-rights respecting government.

Finally, the justice system doesn't exist to protect the rights of the victim, but to adjudicate guilt and punish those who are proven guilty in a court of law. In a society of laws, the victim has no rights to retaliatory force once the criminal is apprehended... that's what we would call a lynch mob.

*That's how I'm characterizing your position, given that you're saying that the "guilty" shouldn't have basic rights protections like a fair trial, which requires an attorney.

Edited by Korthor
Link to comment
Share on other sites

1. I would say that the adversarial system is far better than the inquisitorial system at protecting the rights of the innocent.
Okay, so we might disagree on this. I don't have a strong belief that an inquisitorial system is net-better than an adversarial one. What is your evidence that it is far better? Compare the inquisitorial systems of Western Europe with the adversarial systems of the US, UK, India, Pakistan, Nigeria and Zimbabwe.
Moreover, while it is possible to imagine an inquisitorial system consistent with the rule of law, it is contrary to a very long tradition of Anglo-American and even Roman law.
Yeah, I guess that Germany, France, Italy blah blah have all repudiated the Roman system.
2. The Supreme Court has held for over forty years that people have a right to an attorney (I think the decision was Gideon)
Yeah, I'm not unfamiliar with our socialist courts. But please stop advocating altruism, socialism, and plain pragmatism, and please read up on what the concept of "rights" refers to. Refer to Rand's Virtue of Selfishness if you need a refresher.
3. I have no problem with the court ordering attorneys to represent the guilty.
I think you've made your disdain for individual rights clear enough, so we don't need to pursue that.
4. "Sack up" is an American expression.
Okay, I take your point. I see that the ignorant idiots who only marginally speak English have in fact managed to legitimize this mispronunciation and misanalysis of "suck it up" to the point that the urban guerilla dictionaries list this expression. Find me a real dictionary with this reified piece of idiocy and I'll eat my hat.
And you did "sack up" by saying you wanted to abandon this whole attorney thing, a position I find shocking beyond belief.
What a pile! Not one thing I said here can possibly be interpreted as saying that I want to abandon "this whole attorney thing".

I am now sending you a PM to clarify what I mean what I say that you are getting distracted from the main topic which Luke posted.

5. Can you offer an historical example of an inquisitorial legal system you would feel comfortable being tried under?
In terms of the procedure, any of those of Europe. I reject many of the laws, but I'm considering and researching the possibility that the procedure is better.
Link to comment
Share on other sites

Can you imagine a legal system which protects the rights of the innocent but not the guilty

Sure I can imagine it, but it's non-sequitur. I'm not suggesting such a thing, nor am I proposing some law that prevents an attorney from representing a known guilty person. What is under examination here (the lawyer's dilemna) would not lead to this condition. Don't conflate David's argument for a different system into my comments.

Additionally, people taking the law into their own hands is much better than the government abusing the rights of its citizens.

This is a false alternative based on the context under discussion. There is nothing that inherently indicates that a person who does not have an attorney will systematically have his rights violated or not have a fair trial. It can happen, but it doesn't necessarily happen. I've seen many, many, many cases of judges dismissing charges against defendants who did not have representation. Did I stress many, many, many? As a cop, I've been to court quite a bit.

It's better for attorney's to be able to decide based on their own interests who to represent.

One of the consequences of someone choosing to violate someone's rights (commit a crime) is to have people not like them any more or wish to do anything to support their activity. Some of those people are attorneys. Thus, one of the consequences of committing a crime and then being honest about it is that some attorneys may choose not to represent that person. If one is going to choose to commit a crime and then be honest about it, one has to consider that consequence. Realistically speaking, I think the case is very few and far between that the guilty guy cannot get ANY lawyer to represent them.

Finally, the justice system doesn't exist to protect the rights of the victim, but to adjudicate guilt and punish those who are proven guilty in a court of law.

This is a pretty significant area upon which we disagree, especially since you exclude "to adjudicate guilt and punish those who are proven guilty in a court of law" from protecting the individual rights of victims. To be honest, I cannot even fathom your position here. The justice system DOES exist to protect all rights, guilty or innocent. To say otherwise is to say that a judge or jury has no obligation (moral or otherwise) to convict or punish a person who is in fact proven guilty of a crime. In fact, there is no point of having a justice system even existing if the concern for protecting individual rights is not part of that system.

That's how I'm characterizing your position, given that you're saying that the "guilty" shouldn't have basic rights protections like a fair trial, which requires an attorney.

You are wrong on two counts; 1) in how you characterize my position, and 2) in stating that a fair trial requires representation. Factually speaking, I know otherwise.

Link to comment
Share on other sites

You know, it occurs to me that in criminal cases in a society with rational (i.e. simple and straightforward) laws, you wouldn't necessarily need a "defense attorney".

Why do we have a system in which the prosecution can present whatever evidence they want and it's up to the defense attorney to challenge it if it is inappropriate? I think the entire system needs an overhaul if it is going to *depend* on someone being willing to defend an obviously-guilty man.

Link to comment
Share on other sites

Why do we have a system in which the prosecution can present whatever evidence they want and it's up to the defense attorney to challenge it if it is inappropriate?
An alternative is to have fair and objective judges, who inquire into the facts of the case, and do not passively wait for one attorney to challenge the actions of the other attorney. As trained professionals, they are also in a better position to set aside irrelevant and potentially prejudicial information. However, this presumes that we can trust the government judges, which is not / has not been always so.
Link to comment
Share on other sites

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.

So I assume here that a respectable criminal defense attorney should defend such a client to the best of his abilities while only using intellectually honest arguments. I am going to offer some examples just to see if I understand this principle.

All further comments here presuppose that the client is in fact guilty, the defense attorney is aware of the client's guilt (although perhaps not until after the trial has progressed) but the defense, on the client's insistence, has plead innocent.

Possible example of an intellectually honest argument:

Assume the prosecution has presently failed to present sufficient evidence that the client was actually present in the location where the charged crime took place. The defense attorney could know, possibly through an inadvertant admission from the client, that the client was guilty and therefore present at the crime scene. The defense attorney would be honest if he argued in court that his client cannot be found guilty because the prosecution has not presented enough evidence to incriminate the accused.

Possible example of an intellectually dishonest argument:

Assume that the prosecution has presented generally irrefutable evidence to convict the accused and that there are no reasonable doubts. The defense attorney would be dishonest if he tried to disguise an unreasonable doubt as a reasonable doubt, say by arguing that DNA evidence cannot be trusted.

I am confident that the latter example is dishonest but I am uncertain if the former example is necessarily honest considering that we could insert any arbitrarily heinous crime and any arbitrarily odious defendant. What do you think?

In stated context for this response, I assume that an honest defense attorney must politely decline to make any further arguments if an airtight case has been presented by the prosecution.

You know, it occurs to me that in criminal cases in a society with rational (i.e. simple and straightforward) laws, you wouldn't necessarily need a "defense attorney".

It is interesting to note that in Ancient Greece, there were no defense attorneys. Individuals would argue their own case at a public forum assembled to administer justice. Wealthier individuals who needed help in rhetoric and argument would still hire speech writers though.

Link to comment
Share on other sites

So I assume here that a respectable criminal defense attorney should defend such a client to the best of his abilities while only using intellectually honest arguments. I am going to offer some examples just to see if I understand this principle.

All further comments here presuppose that the client is in fact guilty, the defense attorney is aware of the client's guilt (although perhaps not until after the trial has progressed) but the defense, on the client's insistence, has plead innocent.

Possible example of an intellectually honest argument:

Assume the prosecution has presently failed to present sufficient evidence that the client was actually present in the location where the charged crime took place. The defense attorney could know, possibly through an inadvertant admission from the client, that the client was guilty and therefore present at the crime scene. The defense attorney would be honest if he argued in court that his client cannot be found guilty because the prosecution has not presented enough evidence to incriminate the accused.

Possible example of an intellectually dishonest argument:

Assume that the prosecution has presented generally irrefutable evidence to convict the accused and that there are no reasonable doubts. The defense attorney would be dishonest if he tried to disguise an unreasonable doubt as a reasonable doubt, say by arguing that DNA evidence cannot be trusted.

I am confident that the latter example is dishonest but I am uncertain if the former example is necessarily honest considering that we could insert any arbitrarily heinous crime and any arbitrarily odious defendant. What do you think?

In stated context for this response, I assume that an honest defense attorney must politely decline to make any further arguments if an airtight case has been presented by the prosecution.

It is interesting to note that in Ancient Greece, there were no defense attorneys. Individuals would argue their own case at a public forum assembled to administer justice. Wealthier individuals who needed help in rhetoric and argument would still hire speech writers though.

Dark:

I don't believe that we've necessarily hit on your first point ("using only intellectually honest arguements"), but it is a conclusion that I've been coming to after re-reading this thread 8,645 times. I've actually started what has turned into an essay on the matter (maybe I'll post it when I'm finished).

I wish it hadn't taken me so long, but I've realized that there is a difference between the notion of "protecting against government abuse" and "trying to get an acquittal for the client." In theory, I suppose that a defense attorney could do virtually nothing and, at the same time, guard against abuse. Really, if the government puts on a rational case with sufficient evidence to convict beyond a proper determination of reasonable doubt, I'm thinking that, as Groovenstein put it, a defense based on "magic toads" would be improper and have nothing to do with guarding against government abuse.

Now, regarding your question as to the honesty of your first hypothetical, it think it may be one thing to say to the jury, "Jury, the prosecution has not presented sufficient evidence for you to be able to reasonably infer that the defendant was at the scene of the crime," and quite another to say, "Jury, the defendant was not at the crime scene."

In the above examples, the first statement could be merely an arguement as to what is a sufficient basis for finding reasonable doubt. In other words, the defense attorney is saying that a proper system would require further evidence before a conviction could properly be decided. The second statement is a lie.

Thank you for chiming in on this topic. I've really been wrestling with this issue, but I think I'm making some good ground with it.

Link to comment
Share on other sites

I am curious if people here would agree that an intellectually honest prosecutor would, by the same token, decline to prosecute an accused person is there is a shred of exculpatory evidence. The arguments given here seem to be predicated on an idealization, that only clear rights violations are considered, all witnesses are speaking the truth and never over-state what they know, and especially that the guilt-finders are highly intelligent and professionally dedicated to completely ignoring any irrelevant / emotional arguments.

That is, while the question is being framed in terms of intellectual honesty, when dealing with people who are not as intellectually honest as you are, how do you relate "is" to "ought", especially when one "is" is the fact that you have chosen to be a criminal defense attorney as your career? The attention to intellectual honesty leads me to one conclusion, that an intellectually honest man should not engage in criminal law. Clearly it would be immoral to be a prosecutor; can an intellectually honest man stomach a profession where you must always deal with intellectually dishonest men? In the context of actual legal process, it is unimaginable that a criminal attorney could actually make a living being intellectually honest, so if being an attorney is in no way related to your means of physical survival (that is, you would have to be independently rich enough that you didn't depend on fees from the handful of actually innocent clients that would accept your promise of a less than vigorous defense), you wouldn't really have a career in the "central purpose of life" sense, but rather I think it would be more of a hobby. I must also point out that I don't see how an intellectually honest person could be a judge or juror, without major changes in the nature of the law (judges must get over their fear of sua sponte questions and rulings, jurors must declare in advance how they will deal with the question of interpreting ambiguities in the law).

Since we know that many of the players in the legal process will not be intellectually honest, the question is what the bottom line is for the profession -- only dishonest people should get into criminal law? I know that sounds harsh, but I think it is important to assess this question of honesty from the broadest perspective.

Link to comment
Share on other sites

However, this presumes that we can trust the government judges, which is not / has not been always so.

So you'd need some sort of check or balance in place, correct?

Why not have something like professional jurors that try cases, and they "propose" a verdict/sentence to a judge, who has veto power? It works with the federal government, sort of.

Link to comment
Share on other sites

Why not have something like professional jurors that try cases, and they "propose" a verdict/sentence to a judge, who has veto power? It works with the federal government, sort of.
My opinion is that this is the obvious and clearly correct answer to the problem, and I welcome you to this particular sub-chapter of the guild of obvious and correct truth-sayers. Why, for example, would you take a broken TV to a collection of a dozen random guys on the street? Or entrust the life and liberty of a fellow man to a dozen random guys on the street?

Now, I'd suggest that a unilateral veto would be a bad idea, but a veto for cause would not be. We have that; I don't understand the business of setting aside a verdict -- it's probably a rare enough event that it's off my radar scope. The question that wells up is whether a judge has to justify setting aside a decision -- I assume so in the sense that if he doesn't he'll get his ass overturned the next morning (or year), but the JD dudes can speak to the matter more eloquently.

Link to comment
Share on other sites

Now, I'd suggest that a unilateral veto would be a bad idea, but a veto for cause would not be. We have that; I don't understand the business of setting aside a verdict -- it's probably a rare enough event that it's off my radar scope. The question that wells up is whether a judge has to justify setting aside a decision -- I assume so in the sense that if he doesn't he'll get his ass overturned the next morning (or year), but the JD dudes can speak to the matter more eloquently.

An instance of a judge, in essence, "vetoing" a verdict occurs when the judge grants a party's motion for a JNOV (Judgment Notwithstanding the Verdict) in a civil case. This usually happens when the jury's verdict is "against the great weight of the evidence." Mind you, a judge should not grant such motion based on a factor such as witness credibility, as witness credibility is the exclusive province of the jury to determine. A JNOV will be granted when the judge determines that there is basically no fathomable way the jury could have rationally reached its conclusion. (Why the case was not disposed of in Summary Judgment

is another topic.)

A JNOV or modified verdict will also occur where the jury rules on something that it wasn't supposed to rule on (yes, this happens). Say Mr. X is suing Mr. Y for injuries caused by Mr. Y's negligence. Mr. Y has filed no counterclaim. The jury comes back and says that Mr. X was negligent toward Mr. Y and awards Mr. Y damages. Well, Mr. Y hasn't sued Mr. X, and whether Mr. X did anything negligent wasn't even at issue!

Link to comment
Share on other sites

(Paragraphs in quotes are from Odden. Sorry, I don't know how to use the "quote" feature on here.) [Edit: I started fixing it for you. I also took off your italics in sections that were wholly italicized. I assume you didn't intend that. If you think I screwed up anything, let me know. Word up.]

I am curious if people here would agree that an intellectually honest prosecutor would, by the same token, decline to prosecute an accused person is there is a shred of exculpatory evidence.

I believe that we are addressing "proof beyond a reasonable doubt." I believe that this standard can be met in spite of a "shred" of exculpatory evidence.

The arguments given here seem to be predicated on an idealization, that only clear rights violations are considered, all witnesses are speaking the truth and never over-state what they know, and especially that the guilt-finders are highly intelligent and professionally dedicated to completely ignoring any irrelevant / emotional arguments.

I don't believe that the arguments on here are predicated on an idealization. I believe that the examples are. The examples help me, at least, understand the underlying principles.

The attention to intellectual honesty leads me to one conclusion, that an intellectually honest man should not engage in criminal law.

A criminal defense attorney can both protect against government abuse and be intellectually honest.

Clearly it would be immoral to be a prosecutor; can an intellectually honest man stomach a profession where you must always deal with intellectually dishonest men?

Is dealing with intellectually dishonest men "immoral" per se? If so, I think it would be difficult to be in nearly ANY profession.

Methinks that the context in which one "deals" is relevant as is how one deals.

In the context of actual legal process, it is unimaginable that a criminal attorney could actually make a living being intellectually honest, so if being an attorney is in no way related to your means of physical survival (that is, you would have to be independently rich enough that you didn't depend on fees from the handful of actually innocent clients that would accept your promise of a less than vigorous defense), you wouldn't really have a career in the "central purpose of life" sense, but rather I think it would be more of a hobby.

I'm not ready to accept that there is not one single intellectually honest defense attorney in the free world.

A politician's constituents may well want the politician to serve their desires, but that doesn't mean that it is necessarily proper for the politician to do so. Suppose a developer wants the politician to vote to eminent domain a neighborhood in order for the developer to build a factory there. Would it be proper for the politician to do so? Of course not. Okay, so maybe a morally proper politician wouldn't have a snowball's chance in Hades of getting elected, that doesn't mean that would-be politicians can properly suspend or abandon their morals in order to have a career in politics.

Also, where is the promise of a "less than vigorous defense?" Is there some sort of implied promise that the defense attorney gives to the client that the attorney will be intellectually dishonest if the client wishes for such? Not only that, but you're presupposing that a vigorous defense necessarily includes intellectual dishonesty.

I must also point out that I don't see how an intellectually honest person could be a judge or juror, without major changes in the nature of the law (judges must get over their fear of sua sponte questions and rulings, jurors must declare in advance how they will deal with the question of interpreting ambiguities in the law).

The judge and juror can make determinations based on fact and reason.

Since we know that many of the players in the legal process will not be intellectually honest, the question is what the bottom line is for the profession -- only dishonest people should get into criminal law? I know that sounds harsh, but I think it is important to assess this question of honesty from the broadest perspective.

Maybe a would-be politician could only get elected by having improper platforms. Maybe a rapper can only sell records by rapping about murder, rape, and freaksweatness. Maybe an urban condo developer can only build units by lobbying for eminent domain. Obviously, just because an action is "required" in order to "make" a living doesn't mean that taking the action is proper. A person in any profession has to determine whether there is a market and means of production for the product or service that they offer. If the morally proper politician doesn't have support from voters, he won't be elected. If white, suburban boys don't want to hear raps about functional, beautiful architecture and/or freaksweatindustrialism, a morally proper rapper won't sell records. If there aren't properties for sale, a proper developer won't be able to build.

And maybe, if there aren't enough intellectually honest defendants, a proper criminal defense attorney won't be able to make a living doing nothing but defending defendants.

Perhaps all of the above will have to do other things as well. The would-be politician may have to work for a proper civic organization. The MC may have to write some jingles. The condo developer may have to build some townhouses in the suburbs. The criminal defense attorney may have to draft some wills.

Edited by Groovenstein
Link to comment
Share on other sites

The attention to intellectual honesty leads me to one conclusion, that an intellectually honest man should not engage in criminal law. [...] Since we know that many of the players in the legal process will not be intellectually honest, the question is what the bottom line is for the profession -- only dishonest people should get into criminal law? I know that sounds harsh, but I think it is important to assess this question of honesty from the broadest perspective.

If you're going to assess the question of honesty from the broadest perspective, nearly any profession where you have to deal with people would be unsuitable for an honest man -- politics, business, service, medicine, whatever.

edit - I just read the above post and I guess I am not the only one who thinks this.

Edited by Moebius
Link to comment
Share on other sites

So you'd need some sort of check or balance in place, correct?

Why not have something like professional jurors that try cases, and they "propose" a verdict/sentence to a judge, who has veto power? It works with the federal government, sort of.

Then why not just have a judge, and get rid of juries all together, like most countries in the world?

Link to comment
Share on other sites

Point of information: to quote text, it is bracketed by tags thusly: [quope]Blah blah blah[/quope], the word quote spelled correctly, of course.

I believe that we are addressing "proof beyond a reasonable doubt." I believe that this standard can be met in spite of a "shred" of exculpatory evidence.
I understand that's how the burden is described, but the question is not what it takes to convict, but rather what the moral burden on the prosecutor should be. If there is any exculpatory evidence, the prosecutor cannot be certain of guilt, and therefore an honest prosecutor must phrase his statements in terms of a conjecture that Smith committed the crime, a hypothesis that it was his car seen driving from the scene.
I don't believe that the arguments on here are predicated on an idealization. I believe that the examples are. The examples help me, at least, understand the underlying principles.
Well, okay, the validity of the arguments are predicated on these idealizations. If the idealizations are not false, then some of the arguments become invalid.
A criminal defense attorney can both protect against government abuse and be intellectually honest.
In the contemporary context, that's the point that I dispute.
Is dealing with intellectually dishonest men "immoral" per se? If so, I think it would be difficult to be in nearly ANY profession.
No, but I am saying that you have the alternative of being completely ineffective, or being intellectually dishonest to some degree. For example, it would be intellectually dishonest to claim to defend a person to the best of your ability when you will not do so, and it would be intellectually dishonest to take on a client without them fully understanding your position.
I'm not ready to accept that there is not one single intellectually honest defense attorney in the free world.
Well, have you met one? Do you know of any criminal defense attorney who starts his conversations by saying "If I learn that you did the crime, I will not defend you as vigorously as other attorneys would; here is what I will not do...". If an attorney simply declines to challenge some piece of evidence, for example a murder weapon, because he know it is the murder weapon but he also knows that the evidence was processed improperly or that the test used to match the weapon to the accused is non-probative, then he is providing a less that vigorous (indeed, I would think incompetent) defense.
Also, where is the promise of a "less than vigorous defense?" Is there some sort of implied promise that the defense attorney gives to the client that the attorney will be intellectually dishonest if the client wishes for such? Not only that, but you're presupposing that a vigorous defense necessarily includes intellectual dishonesty.
The promise is implicit: when I hire an attorney to defend me, I assume that he will use every legal means available to him, including asserting persuasively that I am innocent when I am in fact guilty. Of course, as I have said more than once, this is not a problem if you are actually innocent, so if you limited your practice to only defending the actually innocent, there would be no problem.
The judge and juror can make determinations based on fact and reason.
That would be intellectually dishonest, because jurors, for example, are obligated to follow the law and the instructions of the judge, so if they were being intellectually honest, they would be compelled to find a factually innocent man guilty if the evidence presented in the trial defeated the prosecution's argument of guilt but they were aware of relevant fact not introduced into evidence. Or if they are made aware of evidence of guilt but the evidence is ruled inadmissible -- still, improperly acquired evidence does not tarnish its actual probative value, and it would be intellectually dishonest to hold that a murder weapon that proves guilt does not in fact prove guilt when plucked from the poison fruit tree. Or, if they are confronted with irrational laws and interpretations of the law, it would be intellectually dishonest to follow the judge's instructions in the pursuit of justice (when you know that doing so is an injustice).
And maybe, if there aren't enough intellectually honest defendants, a proper criminal defense attorney won't be able to make a living doing nothing but defending defendants.
I agree -- ideally, there would be no profession of criminal defense, since the vast number of prosecutions would not take place (the laws would be repealed), the prosecution would not over-reach in prosecuting men who are not clearly guilty, the fact of being charged in the first place would be ipso fact a strong indication of guilt, and the need for a defense would be a major rarity. And if my grandmother had balls, she'd be my grandfather.

Anyhow, I think it is important to keep a firm grip on context. In the current context, prosecutors exaggerate and assert things (in their opening and closing statements) as fact that they do not know to be a fact; they introduce evidence of dubious relevance (e.g. evidence to impeach a witness that does not address the question of whether the witness is lying in this one instance); prosecutors introduce evidence of dubious reliability (sometimes actually falsified and in some cases, voiceprints and fingerprints, never scientifically validated); judges assert things about what a law says which cannot actually be found in the law; jurors do not understand the law, evidence or jury instructions, and vast numbers of charges are based on improper law. What I am waiting for is the report, some 10 years later, from you, Matt or Tom, that you were able to pursue a rigorously intellectually honest career as a criminal defense attorney, where you never asserted or implied anything untrue. I don't see the context changing where we suddenly deal with just rational laws, rational jurors etc. So I want to see how this works out for you -- I'm having a hard time imagining how you will present your ethical standard to your client.

That is tonight's homework assignment for you: a statement that you will give to your client that makes it completely clear just how honest you intend to be. Will you do that for us?

Link to comment
Share on other sites

Before people start brandishing foils, I'd like to get an idea of specifically which tactics are at issue here. I refer only to tactics because in order for a tactical discussion to matter we have to agree that it is proper in principle to knowingly defend a guilty person. If there is still a dispute over whether it is proper in principle to knowingly defend a guilty person, that should be addressed before addressing tactical questions.

Assuming that it is okay in principle to knowingly defend a guilty person (that is, one who did in fact commit a crime that should be a crime), we can proceed to the question of how to defend such a person.

Also, Luke you get approximately 14 zillion points for "freaksweetness." All those hours reading Smoove B have finally paid off.

Link to comment
Share on other sites

Assuming that it is okay in principle to knowingly defend a guilty person (that is, one who did in fact commit a crime that should be a crime), we can proceed to the question of how to defend such a person.
Before we can agree in principle, we need to establish the context. I propose that we should talk about the here and now, which means if juries are persuaded by the race of the defendant, that is a fact that has to be dealt with. I don't know how to describe the alternative context where prosecutors and jurors are perfect. If we can agree on the "here and now" context, then I claim it can be proper to knowingly defend a guilty man. (However, that also presumes that the attorney in question accepts the "defends individual rights against abuse by the state" ethic; if "punish the guilty" is your central professional principle, the answer would be different).
Link to comment
Share on other sites

My opinion is that this is the obvious and clearly correct answer to the problem, and I welcome you to this particular sub-chapter of the guild of obvious and correct truth-sayers.

I hope you're not making fun of me. :( I did try to read the thread all the way through before I said anything. Maybe I missed something important.

Link to comment
Share on other sites

Then why not just have a judge, and get rid of juries all together, like most countries in the world?

Professional jurors (at least in my understanding) are not the same thing as a judge or a panel of judges. It used to be (according to Marilyn vos Savant) that the jury was composed of people that actually had something to do with the crime, like a doctor that examined the victim etc. The random group of peers thing is an American invention and not necessarily a good one.

The main issue with just having the trial dealt with by a single judge or a small panel of judges is that it leaves open the possibility of someone bribing the judge (or the judge just being a numbskull). Now, this isn't to say that judges are likely to be dishonest (or stupid), it's simply been part of the American system of government to always have some kind of check or balance on anyone in power that can make any sort of decision to, if not eliminate corruption, limit the scope of abuses. I.e. American government is primarily constructed to get in its own way. I guess the theory is that when you have a corrupt situation, all it takes is one honest man to blow the whole works to hell or at least expose it.

The idea in the past has been to have a jury of random ordinary citizens that provide a check on the judge. The problem with this is that random ordinary citizens don't necessarily know or understand what the law is or how it applies or what the rules of evidence are etc. So the jury is actually becoming the mechanism for abuse of the system at this point.

So, in order to maintain the check and balance while still accounting for people having the right to be uneducated dolts (not to mention that it's immoral to force people to do jury duty), a decent solution is to have professional jurors that volunteer for the job. It'd be basically like having a second job where you are "on-call" to sit in on cases. You'd receive a stipend, I'm sure, and you'd be required to study and take periodic exams to show that you're keeping up on your knowledge of the law. It'd be about equivalent to being a notary public.

The idea also is that this theoretical pool of professional jurors could be quite large . . . large enough and disparate enough to be very difficult to corrupt, which is the idea of the whole check/balance thing. You wouldn't need more than a couple hundred professional jurors per district to make the idea of buying them all off ridiculous.

No, I am very seriously praising you. It's not a bad thing to have an obvious and correct insight. Sorry if you misunderstood my intent.

Oh, okay. Thanks :(

Link to comment
Share on other sites

The main issue with just having the trial dealt with by a single judge or a small panel of judges is that it leaves open the possibility of someone bribing the judge (or the judge just being a numbskull).
Well, in addition to the extreme cases of numbskullery and bribery, there is the "WTF was I thinking" factor. If a fact is clear and plain to see to one rational man, it should be clear and plain to see to three. Conversely, if the facts are not clear and plain enough that 2 out of three judges agree, then you really should reconsider the question of whether a man should be deprived of his liberty on such a thin basis in fact.
The problem with this is that random ordinary citizens don't necessarily know or understand what the law is or how it applies or what the rules of evidence are etc. So the jury is actually becoming the mechanism for abuse of the system at this point.
And the abuse is (based on my pestering of people who've been jurors) not even a deliberate, evil abuse, it's usually a deer-in-the-headlights innocent abuse. Jurors don't really understand what the standard of proof requires (this one works to the detriment of the accused); they don't understand "mitigating factors" and "aggravating factors"; they are generally not competent to handle scientific disputes.
Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...
 Share

  • Recently Browsing   0 members

    • No registered users viewing this page.

×
×
  • Create New...