, Nov 30 2012 06:41 PM
8 replies to this topic
Posted 30 November 2012 - 06:41 PM
How do you represent people (in court) when you KNOW the person is guilty and/or it goes against your morals?
Posted 30 November 2012 - 06:46 PM
Well if you KNOW they are guilty then you can't represent them very effectively, you can't adduce any evidence that is inconsistent with their admission (to you) of their guilt....so effectively you don't give them a defence. Or you tell them to plead guilty and try to get a reduced sentence.
Posted 30 November 2012 - 06:47 PM
I used to refer them off to other lawyers if it was something that was morally reprehensible to me and I was convinced they were guilty. It's ok to do that if you are doubtful of whether you can represent them well enough.
Posted 30 November 2012 - 07:12 PM
There are a few answers to this:
The official one is that we trust the system. The police and the prosecutors are there to do their (ethical) best to prove your client's guilt, the judge and jury are there to make the right decision, the defence lawyer is there to defend their client, and the rules of evidence are there to make it fair. If everyone does their job right then it should all balance out.
But we have heaps of rules. Legally you can't lie to the court so you can't actually deny they did it if you KNOW they are guilty - that is they have told you they did it. In civil trials you can't run a defence if you don't believe it has a reasonable prospect of success.
But the reality is that its such a rare situation that IME most lawyers won't encounter it.
Most of us do other types of work, and people who do criminal work are more often concerned with sentencing issues (like mental health, drugs, family responsibilities, rehabilitation programmes etc).
I acted for a corporate client who most people would nominate as the epitome of evil, and I never was put in a position of doing anything to deny their guilt/responsibility.
Edited by meggs1, 30 November 2012 - 07:13 PM.
Posted 30 November 2012 - 07:34 PM
There are a whole heap of rules.
First up, all lawyers are officers of the court, and the court is paramount - so no lying to the court.
Second, you have duties to your client. Everything they tell you is privileged, so you cannot tell the court (or anyone else for that matter) that they are guilty. However, they are not able to direct you to run a case that is inconsistent with their guilt. That leaves you with ensuring that the prosecution have done their job correctly, and observed the legal niceties - like ensuring the elements of the crime are proven, evidence is all admissable, and that kind of thing.
Basically, its your job to ensure the other side do their job correctly. Of course, many clients don't understand that you cannot act contrary to their admissions, so in the end you advise the court you cannot continue to represent them, and they get another lawyer.
One of the really important part of our legal system is making sure that the law is impartial and 'just' as fair as possible. That means we all have a duty to ensure that convictions on criminal charges are above board, and as sound as possible. Some people feel really passionately about the system, and everyone's right to have a fair trial and the best representation - and that's why they represent people charged with crimes.
I personally cannot think of anything worse than a legal system that hangs 'criminals' out to dry. It leads to sloppy policing and investigation, and really BIG mistakes. Eventually, that would trickle into other parts of the legal system, and that would be a terrible thing for those who are on the receiving end of an accusation.
Posted 01 December 2012 - 08:42 AM
Thanks for explaining!
Btw I'm just curious. Random thought that popped in my head.
Posted 01 December 2012 - 08:51 AM
I HATE these questions. Go watch LA Law and feel better about life. Grr.
#sorry - cranky
Posted 01 December 2012 - 09:20 AM
OP, I have included a link to an excellent article about the matter. It clearly outlines the "cab rank" rule, which the general public seem to have no idea about, and also the way lawyers contribute to upholding the rule of law, and why they are duty bound to still represent the unpopular.
Several lawyers made the point that when lawyers fail to stand between the most undesirable clients and the power of the state the entire system is at risk. As one public defender said: ‘We can’t import into the system a subjective value judgement about which case is more worthy than another, who is more deserving. If this happens, the system — and our entire society, really — cannot be said to represent justice.’
Another leading barrister said: ‘It is simply essential to the system that everyone, no matter how unpopular, gets a defence.’
Many lawyers who represent unpopular clients believe that the very legitimacy of the legal system is reflected in how it treats the worst. As one prominent barrister stated:
The quality of the system is tested by how it treats the worst. … The worst, most revolting criminal or terrorist or whoever it happens to be, if you can get a fair trial for them then everyone else is guaranteed a good run. But if the system starts taking short cuts because somebody is so bad, then it’s the system that’s coming apart.
A legal aid lawyer who has also been in the private Bar made the same point, but with self-deprecating humour: http://www.austlii.edu.au/cgi-bin/sinodisp...uery=cab%20rank
Why represent clients that others loath? Sometimes I think it comes from my deeply indecisive nature. I don’t know whether someone is guilty or not. In 99 per cent of cases they say they are not guilty. As a lawyer, I say okay, that’s the system; you’re entitled to put this case. It’s all the more important when you have a deeply unpopular client. It’s more important to get the jury to put aside their prejudices. We don’t know things. That’s why we have a system designed not to find out the truth but to find out whether the Crown has proved its case.
Another prominent lawyer made a similar point about lawyers ‘knowing’ that their clients are guilty:
People say you know. But everyone who has done any amount of trial work has had the mortifying experience of thinking you know what’s true and you find out that what the client has told you is true, and you were bloody wrong about your assumed knowledge of his guilt. … [This experience] makes it easier to suspend judgment. We have a system. The jury decides. I don’t.
One criminal defence lawyer agreed, noting that ‘first impressions can be totally wrong.’
He told a story about a client who had been accused of rape. With a wry warm-heartedness common to criminal lawyers, he described his client as an ‘idiot’ who ‘looked like a rapist’ with his ‘big bulging eyes’ and who acted like one with his ‘secretive’ and ‘strange’ manner. The complainant, on the other hand, was ‘compelling.’ When she testified at the committal hearing, she was ‘brave and snivelling’ as she offered up the awful details of the crime. She was later exposed as a liar by a purportedly corroborating witness — her soon-to-be former boyfriend. The complainant’s plan had been to extort money from the accused, but the boyfriend began to fear that he would be accused next.
I highly recommend this interesting article on austlii, for understanding the basics.
And here is a short smh article about one aspect of the subject.http://www.smh.com.au/opinion/politics/att...1101-17agv.html
Edited by SarahM72, 01 December 2012 - 09:28 AM.
Posted 01 December 2012 - 12:15 PM
As someone suggested, the court is paramount and a lawyer is an officer of the court. Everyone has the right to a fair trial though and I believe Barristers have to take on jobs unless they clash with other work which is why people like Martin Bryant will always be represented in one way or another. It takes a special kind of person to work in criminal law day in and day out.
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