Criminal Defence vs. The Conscience?

Originally Posted by Sherman90

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But, as a matter of law, prosecutors are not doing their jobs if they are sending people they know are innocent to jail.

Sure, but don't you think that many prosecutors get professional tunnel-vision after awhile?

The reason this is so thorny, is that ethically, people need to do things we don't like. It's the same way with CEOs who, ethically, need to watch out for the interests of the shareholders.

Originally Posted by luftvier

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Criminal defense lawyers, while demeaned by many as bottom feeders, protect citizens from the most basic civil rights that they take for granted - that is, until THEY'RE arrested by the police for something "they didn't do." Then suddenly, the "technicalities that let criminals get off" become "important civil rights to keep me out of jail."

I am floored by the people that say "well, if you're not doing anything wrong it shouldn't matter."



QFT.

Well said. If your not doing anything wrong you might have the most to worry about. You never made a choice that you might get caught and do it anyhow.

The biggest complaints of my colleagues in criminal defense (and domestic relations) seems to be the business of dealing with their clients, who are in the habit of lying to everyone, missing appointments, not paying on time, etc.

But many of them have taken the approach that Birdman has that it's not about winning = getting them off and losing = they go to jail. It's more to ensure that there is a fair process and that the charges and eventual punishment match the crime.

Is Harvey Birdman real or fiction? He's almost too well spoken to be true.

harvey birdman = real G

Originally Posted by oman

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harvey birdman = real G

i will confirm.

i have a good friend who is a defence attorny, this question could just just as well be phrased for criminal prosecution. there is equal opportunity for conscience related issues on both sides of the bench/table.

it is the attorneys job to do his best work while being as ethical as possible and staying within the guidelines of the law. the issue i think is more with legal system as a whole than with the attorneys per say.

Ineresting thread.

I'm intrigued by the idea of choosing either to be a career prosecutor or defence advocate. This is a new thing in the UK (specifically England & Wales) which is generally seen as a retrograde step. Previously it was quite normal for barristers, who are mostly self employed, to both prosecute and defend in different cases.

In relation to the OPs inquiry, the principle is that a capable defence is an integral part of due process of law, the idea being that the guilty when convicted are properly convicted if they have been given every chance to challenge the prosecutions case.

As for the ethical context, no lawyer worthy of the name, in any jurisdiction, will seek to mislead the court let alone lie on behalf of his/ her client. That doesn't mean that the prosecution evidence shouldn't be tested to the full and any contradictions or inadequacies exposed. The test is whether the prosecution can prove guilt beyond a reasonable doubt (in most common law jurisdictions) the defendant need prove nothing. In E&W the defence can make a submission of "no case to answer" before calling any defence witnesses in situations where the prosecution evidence is weak.

Only in a situation where a client might have told you that he committed the crime yet pleads not guilty (dumb, but it happens) would you be unable to offer alternative interpretations of the prosecutors case theory, that suggest your client is innocent.

My objection to practising in criminal defence or prosecution is firstly it is badly paid (here anyway) and secondly the clients are often rather dull. other than that, it provides a great service to society...

This thread seems to be confusing "I'm defending a guilty client" with "I'm trying to get a child molester back on the street on a technicality".

The former I have no issue with, the latter I do.

I am not a defense attorney per se, as I am mostly engaged in civil litigation. However, I do get assigned pro bono cases and I have learned to enjoy them, instead of complianing everytime I get an assignment notice. My frame of mind is essentially what Harvey and Lufty posted.

Regarding the OP's original question of dealing with a conflictive conscience, and specifically with Lord Barrington's post, one always has the choice of deciding not to defend certain types of cases. BTW, a civil defense attorney can find most of the conflictive issues mentioned by the OP. In any case, the defense attorney is not trying to get a criminal out on the street. His job is to guarantee that his client is afforded due process of law. In the big picture, he is guaranteeing due process to his client and to anyone down the line in a similar situation. Yes, it may sound poetic and yes, no victim of crime will understand it (probably not even me if it were the case) but that is the way the system is construed, and the only way to change it, is to change the Law/Constitution. BTW, try explaining a constitutional right to bail. Yes, we have that here, and it's been under fire for years.

Originally Posted by D Yizz

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In any case, the defense attorney is not trying to get a criminal out on the street. His job is to guarantee that his client is afforded due process of law. In the big picture, he is guaranteeing due process to his client and to anyone down the line in a similar situation. Yes, it may sound poetic and yes, no victim of crime will understand it (probably not even me if it were the case) but that is the way the system is construed, and the only way to change it, is to change the Law/Constitution. BTW, try explaining a constitutional right to bail. Yes, we have that here, and it's been under fire for years.

This all sounds very nice, and it's what we tell people as criminal defense attorneys all the time to make them feel nice and tingly inside, but it's not quite true. If I read a file, and conduct an investigation, and determine that my client's constitutional rights and due process rights were not violated, and he's guilty of the crime that was charged, I will still try to exploit any weakness I see in the State's case to get the best possible result for my client, including an acquittal or dismissal if that's possible. I would never lie for a client, but I will put the State to its proofs, regardless of whether my client is guilty or not or whether his rights were violated or not.

The way I see it, the other side has all of the power of the State and the government behind it, including all of the resources that go along with that. All my client has is me. If all of that power on the other side is not enough to secure them a conviction, well, that's their problem. I don't feel bad for them at all if they lose, no matter how much of a bad guy my client is. It's not on my conscience of my client goes free, it's on the prosecutor's and his investigators. They're the ones that didn't do their job right.

Btw, lesson number 1: If a child accuses your client of sexual assault, never refer to that child as a "victim" or even an "alleged victim." They are always to be referred to as the "accuser."

Originally Posted by Ace_Face

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The biggest complaints of my colleagues in criminal defense (and domestic relations) seems to be the business of dealing with their clients, who are in the habit of lying to everyone, missing appointments, not paying on time, etc.

Ahem. I don't think this problem is limited to criminal defense work or DR.

..

Originally Posted by odoreater

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This all sounds very nice, and it's what we tell people as criminal defense attorneys all the time to make them feel nice and tingly inside, but it's not quite true. If I read a file, and conduct an investigation, and determine that my client's constitutional rights and due process rights were not violated, and he's guilty of the crime that was charged, I will still try to exploit any weakness I see in the State's case to get the best possible result for my client, including an acquittal or dismissal if that's possible. I would never lie for a client, but I will put the State to its proofs, regardless of whether my client is guilty or not or whether his rights were violated or not.

The way I see it, the other side has all of the power of the State and the government behind it, including all of the resources that go along with that. All my client has is me. If all of that power on the other side is not enough to secure them a conviction, well, that's their problem. I don't feel bad for them at all if they lose, no matter how much of a bad guy my client is. It's not on my conscience of my client goes free, it's on the prosecutor's and his investigators. They're the ones that didn't do their job right.

Btw, lesson number 1: If a child accuses your client of sexual assault, never refer to that child as a "victim" or even an "alleged victim." They are always to be referred to as the "accuser."

That's why you're a criminal attorney and I'm not. Sure, if I chose to practice criminal law more often, most likely I'd end up thinking that way.

Originally Posted by Mr. White

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Trick question. By definition, all criminal defendants are innocent until proven guilty in a court of law. Their lawyers are, therefore, defending innocent men.

youre nutso.