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

Defending the Innocent 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.

But what about the innocent client?  It is said that the most difficulty task of a defence counsel is defending the truly innocent client.  Indeed it does happen, but it must happen rarely that a client is free of all guilt:  As a matter of law, the client may not be guilty of the offence charged.  However, often, there is some culpable conduct on the part of the client.  In some measure, such conduct may justify the proceedings against him or her.

A dilemma will arise in advising a client when the client wishes or has to consider whether to enter a guilty plea for something he or she is not guilty of.  There is always some expediency in a guilty plea:  It saves the legal expense and emotional turmoil of having to go through a trial.  It usually means a more predictable outcome, often involving a plea to a lesser charge or having the prosecutor concede facts that put the defendant’s conduct in a more favourable light.  Sometimes the numbers speak for themselves:  It is better to accept a few months in jail than risking going there for a period which might be five or 10 times longer.  However, the more serious the crime is, the more difficult is the ethical dilemma.

It should be noted that at times prosecutors are willing to make favourable concessions.  The impetus for such offers will vary, but may include circumstances where the prosecution case is quite weak.  Of course, frequently, in the face of such offers, clients will be motivated to accept such plea bargains for obvious reasons:  The risk of being found guilty may involve the prospect of a lengthy sentence whereas the guilty plea offers a safe haven.

 If the plea bargain involves a plea to a lesser charge, a judge, at least in Canada, would not appear to have any authority to reject it.  However, a judge, in theory may always impose a sentence authorized by law.  Thus, whether the case involves a reduced charge or not, a judge may reject a sentence proposal if the proposed sentence is unreasonable.  Therefore, a client may need to be wary of offers that may be too good to be true.  Unless the accused has some assurance that a plea proposal will be accepted, the agreement may ultimately be of no value at all.

Just as a lawyer cannot allow a guilty client to take the witness stand and lie about not being involved in an alleged crime, it is equally wrong for a lawyer to represent that a client is guilty when he or she is not.  In either case, it is not a proper way to represent a client.  This is so even from the client’s perspective, whether the client accepts that or not.  Not only does the lawyer fail in his or her duty to the client, but also to the court.  A guilty plea involves a representation that the accused committed the criminal act alleged.  If the lawyer vouches for the client’s guilty plea, it is the same as putting a client on the witness stand to lie.

However, there are circumstances where it is appropriate to enter a guilty plea to something even when the defendant maintains his or her innocence.  Again, to quote from the companion piece to this article:  "Defending the Culpable Client..." :

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.

By the same token, a lawyer does not mislead the court when he or she allows a client to enter a guilty plea where, notwithstanding the personal opinion of the lawyer or the client, objectively speaking admitted facts may justify the finding of guilt.  The example of this is seen frequently when an accused raises a self defence issue in a murder case.  Self defence would be a total defence.  However, the prosecution in those circumstances may be willing to accept a plea to manslaughter.  In that case the defence is conceding that the accused conduct was not justifiable.  This will not be misleading the court because frequently in such circumstances, the accused person cannot be entirely certain about his or her own innocence, nor can that person’s lawyer.  The conduct of the accused, whether it fits the defence or not, will frequently be an open question in these circumstances.

That kind of case is entirely different from the situation where the client’s claim cannot objectively be viewed as raising the possibility of any culpability.  Typically this would occur when the defence is an alibi or otherwise suggests someone else is responsible for the crime.  Thus, either the client is innocent or not.

In Canada, the standard procedure on a guilty plea is for the prosecutor to introduce evidence regarding the facts.  This is most frequently done by a narrative that the prosecutor reads.  The defence is then asked if they accept those facts.  So what is the lawyer to do when the client insists on entering a guilty plea, yet denies responsibility.  In some instances, it may be appropriate for the lawyer to accept the client’s instructions to enter a guilty plea as a retraction of an earlier assertion of innocence.  However, where it is still the case that the client maintains a position that is contrary to the plea of guilty that he or she intends to enter, it may be appropriate for the lawyer to get off the case entirely.  If this is not possible, when it comes time to advise the court if the facts alleged are admitted as true, the lawyer may simply say that he or she has instructions to say they are.

It is only natural to expect that when a criminal lawyer is defending someone who is innocent, the pressure to succeed will be stirred by the lawyer’s impulse to see justice done.  In every case however the lawyer must serve the client in the same way, that is, with honour and integrity to both the client and the judicial system.  In a real sense then, it doesn’t matter whether the client is guilty or innocent.  It is simply enough that lawyers fulfil their roles in the process and let the process do the rest.

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

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