Defence Lawyers - How They Can Represent The Guilty
Created | Updated May 28, 2008
A Defence Lawyer – Barrister or Solicitor has a professional duty to represent his defendant client’s point of view to the best of his ability and without fear or favour.
A Defence Lawyer is often asked the question “How can you represent someone that you know is guilty?” There are a number of answers to this question which is not as simple as it appears.
GUILTY PLEAS
It is important to note that the Lawyer is only representing the Defendant, he is not judging him. Judgement is the duty of the Magistrates, Judge or Jury.
First it should be noted that the vast majority of criminal cases (98%) are dealt with in the Magistrates' Court in a straightforward way with guilty pleas. Solicitors will represent Defendants where legal aid is available or they are paid to assist and in the majority of the cases they will be mitigating the effects of the crime and plead for a lenient sentence for the Defendant who has admitted his/her guilt. The eventual outcome is in the hands of the Magistrates.
NOT GUILTY PLEAS
It is worth repeating that the Lawyer is only representing the Defendant, he is not judging him. Judgement is the duty of the Magistrates, Judge or Jury.
Further, the Defence Lawyer never knows for sure if his client is guilty or indeed, innocent. What divine powers could give a Defence Lawyer that insight? The Defence Lawyer, as with the Prosecution, has only the prosecution evidence to deal with and the views of the Defendant together with any of his witnesses. Some Defendants are known to admit guilt where they are clearly innocent. Obviously many more Defendants profess innocence when they are guilty.
It is therefor imperative that Defence Lawyers turn over every stone, explore every procedural loophole and test the evidence of all prosecution witnesses, expert or lay alike. By this exploration they test the integrity of the system. They also ensure that after the best efforts of the Defence Lawyer, if a person is found guilty by a Jury, Judge or Magistrate it is very likely that they are guilty. This is because the evidence has been challenged and has not been found wanting. In those cases where the Prosecution evidence is challenged and crumbles then it is only right that the Defendant should be acquitted because the Prosecution have not satisfied the high duty imposed on them by our Legal System. They would have failed to produce evidence of the highest order to ensure there was no reasonable doubt of a Defendant’s guilt.
It is clear that the Defence Lawyer must not be judgemental no matter how strong the evidence appears to be against his client. The evidence must be continuously prodded and tested, unless of course, the defending client wishes to admit wrong doing and enters a guilty plea.
In a case about twenty years ago a client from the South of England was in a difficult position. He was a recovering alcoholic and had secured a job as manager of an electrical shop. Every Thursday afternoon he went to bank the takings in the local bank leaving the shop at about 3pm.
On a particular Thursday, he hit the bottle in a big way and the funds – some £3,500.00 - did not appear in the bank despite him having left the shop with the funds. The Defendant readily admitted that he had left with the money but believed that he had paid it into the bank as was his usual custom. After much discussion with his lawyer about the evidence the Defendant refused to plead guilty in the Magistrates’ Court because he was adamant that he had not taken the money. There was no other explanation. He had not been mugged and he could not remember where he could have put the funds if it wasn’t in the bank. Having drunk to excess he awoke in a well known London Hospital, having been carried there by the Transport Police, such was his state of intoxication.
Time was not on the Defence side and as the Defendant was adamant that he was innocent, he was advised by his lawyer to elect a trial in the Crown Court as this would delay the process for several weeks. He was adamant that he did not wish to accept the usual credit of a discounted sentence for pleading guilty at an early stage because he maintained his innocence.
Anyone reviewing the evidence externally would not have shared the Defendants optimism at this stage!
The matter was duly transferred to the Crown Court and to cut a long story short, two days before the matter was to be tried before a Judge and Jury, the Prosecution, somewhat sheepishly, stated that the money had turned up in the banking system and it had been paid into the wrong account by counter staff.
The case was therefore dropped and there was no trial, the Defendant had proved his point. However, without robust defence work and tactical measures, the Defendant would already have been persuaded to plead guilty and been sentenced. Then he may well have gone to prison because the theft was from an employer when he as an employee was in a position of trust.
To take another example, a well established Company Director goes into his secretary’s office, picks up the letter opener and stabs her in the heart so that she dies instantly. This incident is witnessed by the window cleaner who happens to be cleaning the secretary’s window at the time. From the Prosecution perspective, it is a cut and dried case of murder, with good forensic evidence and an independent eye witness.
Initially the Defence would be very concerned about the strength of this evidence. They do however, carry out their job without fear or favour. The Defence investigations reveal that the Defendant may be suffering from a disease of the mind, perhaps premature arterial sclerosis. He had just divorced his wife in order to marry his secretary with whom he had been having an affair for seven years. On entering her office to give her this news i.e. that he’s free to marry her, she rejects him indicating she is having an affair elsewhere.
The Defendant and secretary have been nurturing their relationship in the Amateur Dramatic Society. The latest production involved the secretary stabbing her boyfriend, the Defendant, with a stage prop knife. The couple are known regularly to rehearse their lines in the office environment. Indeed, another secretary in an adjoining room has witnessed this in the past and on the occasion of the secretary’s death, believed she heard the Defendant say words to the secretary “You cheating little whore, if this was a real knife…………………..oh bloody hell! What have I done?”
The Defence Lawyer learns from the Defendant that he thought when he actually stabbed the secretary he was picking up the stage prop knife. If that is believed, he had no intent to commit murder.
At the end of the day, depending how the evidence unfolds, the Defendant may be acquitted entirely or convicted of a lesser charge, such as manslaughter rather than murder. If he is deemed to be insane by reason of his mental condition, he could be ordered to be detained in a Mental Institution.
If a Defendant client is "Guilty" but wants to plead 'Not Guilty' - no problem. The Defendant must remember that if found guilty he/she will lose the credit of a discounted sentence for the inconvenience that could have been avoided. However the system works like this:-
'Not Guilty' entered.
Prosecution call their evidence.
This is challenged throughout by the Defence team (barrister or solicitor).
At the end of the Prosecution case the Defence can submit "No case to answer" if the evidence of the Prosecution is flawed.
If the judge agrees that the evidence is too weak (does not exceed the level of proof known as "the balance of probabilities" at this stage) the case can be thrown out.
If the judge rules there is a prima facie case the Defence have a dilema. They can't call their client to tell lies - professional ethics etc (and some morality) here.
At this point the Defendant may be advised to change his/her plea to Guilty because of the strength of the Prosecution case. If you listen to or read carefully media reports you can pick this up as "At the close of the Prosecution case the Defendant changed his/her plea to Guilty". Sometimes you also hear that Defence Counsel withdrew from the case. This may be because the Defendant sacked him/her or because the Defendant was intending to lie or otherwise defend himself in a way that offended professional ethics.
In conclusion, before the Defence Lawyer is condemned for lacking moral integrity, please digest carefully the above. Further you must ask yourself, if you are ever unfortunate to be falsely accused of a serious offence, would you wish to be judged morally, judged on the prosecution evidence only - or to have a finely honed professional Defence Lawyer arguing your case for you? The system has to be tested continuously to remain efficient and alert. While your Lawyer is investigating the evidence and all relevant rules and procedures in order to establish your innocence – particularly if you genuinely were innocent - do not challenge his/her moral integrity, or his/her dispassionate approach. The above examples, I hope, demonstrate graphically why there is no room for moral judgements in truly discharging the Defence Lawyer's duty to his/her client.
A Defence Lawyer is often asked the question “How can you represent someone that you know is guilty?” There are a number of answers to this question which is not as simple as it appears.
GUILTY PLEAS
It is important to note that the Lawyer is only representing the Defendant, he is not judging him. Judgement is the duty of the Magistrates, Judge or Jury.
First it should be noted that the vast majority of criminal cases (98%) are dealt with in the Magistrates' Court in a straightforward way with guilty pleas. Solicitors will represent Defendants where legal aid is available or they are paid to assist and in the majority of the cases they will be mitigating the effects of the crime and plead for a lenient sentence for the Defendant who has admitted his/her guilt. The eventual outcome is in the hands of the Magistrates.
NOT GUILTY PLEAS
It is worth repeating that the Lawyer is only representing the Defendant, he is not judging him. Judgement is the duty of the Magistrates, Judge or Jury.
Further, the Defence Lawyer never knows for sure if his client is guilty or indeed, innocent. What divine powers could give a Defence Lawyer that insight? The Defence Lawyer, as with the Prosecution, has only the prosecution evidence to deal with and the views of the Defendant together with any of his witnesses. Some Defendants are known to admit guilt where they are clearly innocent. Obviously many more Defendants profess innocence when they are guilty.
It is therefor imperative that Defence Lawyers turn over every stone, explore every procedural loophole and test the evidence of all prosecution witnesses, expert or lay alike. By this exploration they test the integrity of the system. They also ensure that after the best efforts of the Defence Lawyer, if a person is found guilty by a Jury, Judge or Magistrate it is very likely that they are guilty. This is because the evidence has been challenged and has not been found wanting. In those cases where the Prosecution evidence is challenged and crumbles then it is only right that the Defendant should be acquitted because the Prosecution have not satisfied the high duty imposed on them by our Legal System. They would have failed to produce evidence of the highest order to ensure there was no reasonable doubt of a Defendant’s guilt.
It is clear that the Defence Lawyer must not be judgemental no matter how strong the evidence appears to be against his client. The evidence must be continuously prodded and tested, unless of course, the defending client wishes to admit wrong doing and enters a guilty plea.
In a case about twenty years ago a client from the South of England was in a difficult position. He was a recovering alcoholic and had secured a job as manager of an electrical shop. Every Thursday afternoon he went to bank the takings in the local bank leaving the shop at about 3pm.
On a particular Thursday, he hit the bottle in a big way and the funds – some £3,500.00 - did not appear in the bank despite him having left the shop with the funds. The Defendant readily admitted that he had left with the money but believed that he had paid it into the bank as was his usual custom. After much discussion with his lawyer about the evidence the Defendant refused to plead guilty in the Magistrates’ Court because he was adamant that he had not taken the money. There was no other explanation. He had not been mugged and he could not remember where he could have put the funds if it wasn’t in the bank. Having drunk to excess he awoke in a well known London Hospital, having been carried there by the Transport Police, such was his state of intoxication.
Time was not on the Defence side and as the Defendant was adamant that he was innocent, he was advised by his lawyer to elect a trial in the Crown Court as this would delay the process for several weeks. He was adamant that he did not wish to accept the usual credit of a discounted sentence for pleading guilty at an early stage because he maintained his innocence.
Anyone reviewing the evidence externally would not have shared the Defendants optimism at this stage!
The matter was duly transferred to the Crown Court and to cut a long story short, two days before the matter was to be tried before a Judge and Jury, the Prosecution, somewhat sheepishly, stated that the money had turned up in the banking system and it had been paid into the wrong account by counter staff.
The case was therefore dropped and there was no trial, the Defendant had proved his point. However, without robust defence work and tactical measures, the Defendant would already have been persuaded to plead guilty and been sentenced. Then he may well have gone to prison because the theft was from an employer when he as an employee was in a position of trust.
To take another example, a well established Company Director goes into his secretary’s office, picks up the letter opener and stabs her in the heart so that she dies instantly. This incident is witnessed by the window cleaner who happens to be cleaning the secretary’s window at the time. From the Prosecution perspective, it is a cut and dried case of murder, with good forensic evidence and an independent eye witness.
Initially the Defence would be very concerned about the strength of this evidence. They do however, carry out their job without fear or favour. The Defence investigations reveal that the Defendant may be suffering from a disease of the mind, perhaps premature arterial sclerosis. He had just divorced his wife in order to marry his secretary with whom he had been having an affair for seven years. On entering her office to give her this news i.e. that he’s free to marry her, she rejects him indicating she is having an affair elsewhere.
The Defendant and secretary have been nurturing their relationship in the Amateur Dramatic Society. The latest production involved the secretary stabbing her boyfriend, the Defendant, with a stage prop knife. The couple are known regularly to rehearse their lines in the office environment. Indeed, another secretary in an adjoining room has witnessed this in the past and on the occasion of the secretary’s death, believed she heard the Defendant say words to the secretary “You cheating little whore, if this was a real knife…………………..oh bloody hell! What have I done?”
The Defence Lawyer learns from the Defendant that he thought when he actually stabbed the secretary he was picking up the stage prop knife. If that is believed, he had no intent to commit murder.
At the end of the day, depending how the evidence unfolds, the Defendant may be acquitted entirely or convicted of a lesser charge, such as manslaughter rather than murder. If he is deemed to be insane by reason of his mental condition, he could be ordered to be detained in a Mental Institution.
If a Defendant client is "Guilty" but wants to plead 'Not Guilty' - no problem. The Defendant must remember that if found guilty he/she will lose the credit of a discounted sentence for the inconvenience that could have been avoided. However the system works like this:-
'Not Guilty' entered.
Prosecution call their evidence.
This is challenged throughout by the Defence team (barrister or solicitor).
At the end of the Prosecution case the Defence can submit "No case to answer" if the evidence of the Prosecution is flawed.
If the judge agrees that the evidence is too weak (does not exceed the level of proof known as "the balance of probabilities" at this stage) the case can be thrown out.
If the judge rules there is a prima facie case the Defence have a dilema. They can't call their client to tell lies - professional ethics etc (and some morality) here.
At this point the Defendant may be advised to change his/her plea to Guilty because of the strength of the Prosecution case. If you listen to or read carefully media reports you can pick this up as "At the close of the Prosecution case the Defendant changed his/her plea to Guilty". Sometimes you also hear that Defence Counsel withdrew from the case. This may be because the Defendant sacked him/her or because the Defendant was intending to lie or otherwise defend himself in a way that offended professional ethics.
In conclusion, before the Defence Lawyer is condemned for lacking moral integrity, please digest carefully the above. Further you must ask yourself, if you are ever unfortunate to be falsely accused of a serious offence, would you wish to be judged morally, judged on the prosecution evidence only - or to have a finely honed professional Defence Lawyer arguing your case for you? The system has to be tested continuously to remain efficient and alert. While your Lawyer is investigating the evidence and all relevant rules and procedures in order to establish your innocence – particularly if you genuinely were innocent - do not challenge his/her moral integrity, or his/her dispassionate approach. The above examples, I hope, demonstrate graphically why there is no room for moral judgements in truly discharging the Defence Lawyer's duty to his/her client.
