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If a lawyer that is representing a defendant finds that his client is guilty, how is he supposed to act?

Can a lawyer lie or pretend he doesn't know something? Should or could he, morally, try to win a trial if he is aware of the culpability of the defendant?

How have the different philosophers approached this matter over the centuries? And nowadays, is this seen differently in multiple western countries?

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    This is not primarily a philosophical question but a professional one for lawyers. I think this depends largely on the country and whether they use an advocacy system or an inquiry system. – virmaior Jun 23 '14 at 9:26
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    This question appears to be off-topic because it is about what I said in the other comment. – virmaior Jun 23 '14 at 9:26
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    I don't consider it off topic. It's about moral – Pere Jun 23 '14 at 12:46
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    I, too, would consider it a moral question in the broader sense, for it is clear what the lawyer's profession says about that - they are to defend their clients. If there is any doubt about whether that's right, then that doubt must be a moral one. Nonetheless I agree that, as it stands, the question is too broad to be answerable. – iphigenie Jun 24 '14 at 12:41
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    This question seems too broad. It should be broken up. – James Kingsbery Jun 26 '14 at 18:31
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In the United States, and many other countries with similar legal systems, a defense attorney is required to represent the interests of his/her client, regardless of whether the client is actually innocent. This is a legal requirement and a moral duty of the legal profession.

To that end, one could also argue that everyone has a moral obligation to stop a perpetrator of heinous acts from continuing to do so. In this case, a defense attorney could have a moral dilemma. The legal profession is one of many that are rife with moral dilemmas.

A bigger point, though, is that the true purpose of the existence of defense attorneys is to prevent the government from cheating when obtaining convictions. Some forms of cheating are:

  1. Using torture to obtain confessions.
  2. Using unreliable evidence.
  3. Using evidence obtained via inappropriate search or seizure.

In general, societies where the government cheats regularly in obtaining convictions are unpleasant to live in. It is the consensus of many modern societies that it is better to tolerate some unprosecuted crimes than to live under a tyrannical government.

The defense attorney's goal is to ensure that if the client is convicted, it was done with reliable evidence that was all gathered appropriately. Allowing a client to be convicted with shoddy evidence, just because the client is actually guilty, does not serve justice in the long term.

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    But you're missing that defense attorneys are also attorneys with obligations to their profession and to the courts to which they are admitted which includes that they not knowingly submit false evidence or testimony. So lawyers are obligated both to insure a fair trial for their clients and to not perjure themselves or permit others to perjure themselves in the court or to engage in conduct not becoming of the profession. Other than missing how this also adds moral dilemmas, what you're saying is all true. – virmaior Jun 24 '14 at 22:54
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Realistically, morality and guilt have nothing to do with this question. Every lawyer knows, guilt on the part of the client has absolutely no bearing on the outcome of a trial, only guilt that can be proven, or absence of proof, will effect the outcome. A lawyer with a conscience might wrestle with the dilemma, but to assume all lawyers have a conscience is erroneous. For most lawyers, it is actually to their benefit financially to have a reputation for successfully defending guilty clients, as this attracts more guilty clients to hire a lawyer with this reputation, as they know, said lawyer will use the law to protect the guilty. Lawyers (not all, but in general) definitely do lie or pretend they don't know somethings, because above all, they are not necessarily concerned about their clients interest, or the public's interest, but about their individual financial interest. Could a lawyer with "flexible" morals justify immorally trying to win a trial if he is aware of the culpability of the defendant to further his financial self-interest? Definitely. "It's not what you know, but what you can prove". Even a judge can be aware of the individuals guilt and this wont change the outcome without evidence.

  • Realistically, morality and guilt have nothing to do with this question. Every lawyer knows, guilt on the part of the client has absolutely no bearing on the outcome of a trial, only guilt that can be proven". This is not true, because whether or not a defendant ('client') is guilty is likely to have an effect on whether or not there is any proof of her guilt. – M. le Fou Jan 29 '16 at 2:58
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Rules in a civil trial and a criminal trial are different. What I say should be only applied to criminal trial.

When someone is accused of a crime, there isn't just "guilty" and "not guilty". Many actions could be different crimes depending on the circumstances - like theft, robbery or armed robbery, like manslaughter, second degree or first degree murder. So a lawyer might be very well aware that the client stole money or killed someone, but the client might be guilty of theft and not armed robbery, or manslaughter and not first degree murder, so even knowing that the client is guilty, the lawyer would still be expected to give his best defence.

Many crimes can have mitigating circumstances. A person killing their spouse after ten years of being abused, and another person killing their spouse who dares defending themselves after ten years of being abused, should be treated differently, and the lawyer should do their best to make all mitigating circumstances for their client count.

And there is the prosecutor. The prosecutor is not there to get a fair judgement, but will try to get the maximum punishment. Likewise, the lawyer is not there to get a fair judgement for their client, but the least possible punishment. The judge being between them is responsible for a fair judgement. The lawyer must do his best to represent the client, or the judgement will not be fair.

Since I was asked: The case of Aaron Swartz and prosecutor Carmen Ortiz looks very much like a case where a prosecutor tried to get a maximum sentence, way beyond what looked to be justified. That is a case of "knowingly" looking for a sentence that exceeds the crime. But on the other hand, I didn't say that prosecutors generally "knowingly" ask for punishment that exceeds the crime, but it is obvious that in any single case where an innocent person appears in court, the prosecutor at least unknowingly asks for punishment that exceeds the non-existing crime.

  • Can you substantiate your claim about prosecutors? My understanding is that in most states prosecutors are officers of the court tasked with seeking justice -- meaning they do not have the leeway to knowingly pursue charges they understand exceed the crime. – virmaior Jul 3 '14 at 6:56
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In a criminal court case, there isn't just the question whether a defendant is guilty or not guilty. Depending on the situation, the punishment for guilty people might be quite different. You might be hundred percent guilty of illegally killing a person, yet there is the question (in the USA) of whether this is first degree murder, second degree murder, or manslaughter.

In that situation, a lawyer might know with 100% certainty that the defendant is guilty, and everyone else, including judge and jury, might know it, but there is still the need for a proper defence to get the best possible outcome for the defendant.

And since this is all a purely legal question, it would be a very bad idea for a lawyer in that situation to take advice from a philosopher, and not from another (more experienced) lawyer.

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Interesting question. It's my impression that many lawyers do not actually care about morality very much. Some do, why other might seek order, power, victory, prestige, money and what not. And maybe that's even fine.

After all it's the responsibility of the state to design and apply laws in such a way that the resulting society can be considered moral.

But assuming you have to defend an alleged offender and know that he committed the crime, then I think your role is not to deny the deed, but to put it into context, so that the judge or jury have the grounds to pass an adequate sentence. In many cases you will actually find that the offender does plead guilty and instead wants to redeem himself. As a defendant you can support that process. If they don't recognize their guilt, I think it is your role to make them. If they don't, then no sentence will be effective (except for life/death sentence if you find that effect acceptable).

  • Lawyers do care about ethics within their profession from my experience. But I think you're right about one strategy which is supported -- doing your best to minimize the penalties for the action done. – virmaior Jun 29 '14 at 14:18
  • @virmaior: If we look at the cases big corporations have won in favor of an immoral cause, I find it hard to believe that all lawyers have a high moral standard, in any meaningful way of defining morality. Some just don't. Not necessarily most, but ultimately lawyers handle lawful and unlawful, not right and wrong. Those things don't always coincide. The tribunals in totalitarian states are a good example of that. – back2dos Jun 30 '14 at 14:38
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The role of a lawyers is to act as a mediator between his client and the legal system:

http://www.randybarnett.com/s/coping.pdf.

The client wants to get as much as possible out of his dealings with the legal system If he is making a complaint then he may want a lot of compensation or a long sentence to be imposed on the person who he is complaining about. If the client is on trial for committing a crime or tort or whatever then he wants to avoid punishment or compensation or whatever. There are also people like judges and jurors who are supposed to decide the case. The lawyer is supposed to advise his client about what he can reasonably expect to get and the best way to get it.

A detailed discussion of the issue of how a lawyer ought to act is given in

http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1005&context=faculty_scholarship

and many similar articles. For example, a lawyer should advise his client that he should not perjure himself since it is illegal, immoral and he may be caught in a lie that could lead to his prosecution. However, if the client perjures himself the lawyer should not tell the court. The problem with telling the court is that it would undermine his oath of confidentiality. Without that oath the client has a reason not to disclose information that he thinks may be damaging and without that the lawyer may not be able to mount the best possible defence.

  • For one thing, this answer is limited to US legal practie. For a second thing, a lawyer who knows his client is perjuring is violating his professional ethics and his status as an officer of the court (isba.org/sections/trafficlaw/newsletter/2012/03/…). A lawyer must go further and advise against perjury at an absolute minimum. The oath of confidentiality to his client does not abrogate his oath to the court. – virmaior Jun 24 '14 at 14:41
  • I said the lawyer should advise his client against perjury. – alanf Jun 24 '14 at 14:42
  • Tell his client it is "would not be a good idea" != advise against. Maybe what you're saying would go so far as "advise not to" but that's a distinct meaning nolo vs. non volo – virmaior Jun 24 '14 at 14:44
  • @virmaior: The quoted article does not only state why the lawyer has to stop the client from perjuring himself, but also gives examples how the lawyer can get himself into trouble by doing exactly that. – gnasher729 Jan 29 '16 at 23:11

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