Defending the Culpable Client: A Criminal Defence Lawyer’s Ethical Obligations in Going to Trial
Kenneth W. Golish, Criminal Defence

Defending the Culpable Client: A Criminal Defence Lawyer’s Ethical Obligations in Going to Trial

Please note the disclaimer that nothing in this site constitutes legal advice.  If you would like to have a consultation, please contact me.

The defence lawyer is bound by a number of rules that prevent him or her from doing anything unethical, including misrepresenting any fact in issue.  However, within the bounds of these rules, defence counsel may do all he or she can to protect his or her client. 

Not all people charged with criminal offences are guilty. 

Often, people charged with criminal offences are not as guilty as a prosecutor would make them out to be.  Rarely, would an individual charged with a criminal offence, be deserving of the maximum punishment that applies to the crime. 

The criminal procedure in a free society is for the protection of all people, not just the guilty.  Indeed, the role of the defence counsel is essential to the working of the criminal law in a free society.

In dealing with witnesses, prosecutors and the police, the lawyer has an ethical obligation not to mislead those parties.  Particularly, in the case of witnesses, the lawyer or representative of the lawyer should let the witnesses know what interest the lawyer represents.  As a practical matter it may not be wise to approach a prosecution witness, more so in certain cases than others, but there is no property in a witness and it is therefore not unethical to seek to interview any witness as long as that party is not represented by counsel. 

So what does the lawyer do when he or she has a client who admits responsibility but insists on going to trial and asks the lawyer to fight the charges?  Of course, a good lawyer will look to getting the best result for the client and accordingly advise the client to enter a guilty plea or fight the case depending on the circumstances.  However, apart from the wisdom of contesting a criminal allegation when a favourable plea can be negotiated, the basic ethical obligation that arises from this scenario is the obligation to keep client information confidential.  The lawyer would still have to argue the case and argue for an acquittal.

A lawyer may not mislead a court in tendering or offering evidence that he or she knows is false. Arguing a case for an acquittal however is not necessarily misleading.  In a prosecution, it is the prosecutor who must prove the case beyond a reasonable doubt.  If the body of evidence presented has holes, the lawyer is bound to highlight aspects of the prosecution case that are wanting.

A witness must be treated fairly and it is inappropriate to attack the credibility of a witnesses on the basis of allegations the defence lawyer knows to be untrue.  However, that does not necessarily prevent a lawyer from attacking the credibility of a witness even when the lawyer has reason to believe the evidence of the witness is correct.  For instance, if the prosecution case depends on proof of identity and the defence lawyer already has an admission of responsibility from his or her client, it still may be appropriate to attack the evidence of the witness.  The lawyer might draw attention to the witness's limited opportunity to observe the defendant, the witness's bias or anything else that might tend to show the witness testimony is suspect.

The lawyer might face some difficulty if the client has already testified falsely or if the client insists on taking the witness stand to do so.  The lawyer may not refer to the client's false testimony if the client has already testified.  Arguably, counsel may not even refer to any testimony of the client because to do so might be interpreted as vouching for all of the testimony.  The lawyer may still have to argue for acquittal based on the prosecutor not proving the case beyond a reasonable doubt.

If the client is going to insist on taking the witness stand, the lawyer cannot stop the client from doing so.  It is the client's case and the client has the right to select who the witnesses will be.  The lawyer may have two choices.  The first would be to ask the judge to remove the lawyer from the case. 

When the client is content to continue the case without a lawyer, a judge should allow the lawyer to leave.  It might happen however that a judge will require the lawyer to continue even if the client doesn't want the lawyer anymore.

If the client insists on having the lawyer remain, the lawyer can still ask to get off the record.  The procedure for hearing evidence and submissions on this point will vary from place to place.  If the lawyer and client don't agree on strategy, the lawyer should be allowed off the case.  That is not to say a judge will make the appropriate order.

Should the lawyer continue with the case whether willingly or not, the procedure for calling the witness, is simply to put forward the witness.  The lawyer tells the court that the client wishes to testify in the narrative.  The lawyer does not ask any questions.

In closing argument, the lawyer does not rely on the testimony of his or her client.

You should know, scholars have suggested a problem with this approach.  When the lawyer doesn't refer to his or her client's testimony, when no reliance is placed upon it in closing argument, the message is pretty clear:  "I don't believe my own client.  You can't trust him or her.  This person, the accused, my client, is guilty." For that reason, some are of the view that the client's position should be supported even if the lawyer is supporting perjured testimony.  However, according to the weight of authority, the lawyer might end up facing an obstruction of justice charge.

One issue raised by this situation has to do with what the lawyer needs to know.  Some lawyers will press the client for the full truth.  Other lawyers will not push to find out whether the client did it or not.  In this way, the lawyer insulates himself or herself and avoids the ethical problems arising from your question.  It seems that the better ethical approach is to press for the full truth, at least when the lawyer anticipates the need to have the client testify.  That is because when the client takes the stand, the best strategy, ethically and even as a practical matter, is to tell the truth.  Putting any potentially untruthful witness on the stand, particularly the defendant, will likely harm the client's case.

Please note the disclaimer that nothing in this site constitutes legal advice.  If you would like to have a consultation, please contact me.