As a former attorney, I often had to field the following question:
“How do you live with yourself when called upon to defend someone who
you suspect is guilty?”
Just as common is the popular perception most lawyers are dishonest and that
they need to lie to achieve an acquittal.
Permit me to rise to the defence of the many honest lawyers out there.
Before I do, I would point out that I am no longer an attorney. I
mention this in order to disabuse anyone of the notion that this article was
written as a sly method of attracting public custom. Suffice it to say that my current profession
precludes me from dealing with or offering services to the public, and so I
apologise in advance for the fact that any such queries received from readers will
be ignored.
1. Generally
speaking, in the English speaking world, lawyer
means an attorney (solicitor) i.e. someone who represents
clients in criminal or civil cases.
2. In countries
such South Africa or England, the term lawyer
can be strained to include an advocate
(barrister). The latter are
specialist litigators, more commonly known as counsel, who act in criminal and
civil proceedings on the instructions of attorneys or solicitors. The advocate’s
profession is a referral profession i.e. counsel (members of the so-called Bar) are only permitted to act for the
public if briefed to do so by an attorney (members of the side-bar), although there are several exceptions to this rule around
the world.
3. In South
Africa, the term lawyer, properly
used, includes anyone who has a legal qualification e.g. attorneys, advocates
(barristers), lecturers and professors, state prosecutors, Judges, magistrates,
arbitrators, military law officers and legal advisors…
4. In this article, I shall use the term lawyer to include attorneys and counsel
and not state prosecutors or district attorneys.
5. Many lay
people mistakenly believe that all lawyers
act in criminal cases. The television and movie industry is probably to blame
for this common misperception. Most on-screen trials typically involve lawyers
defending accused against criminal charges. This is unsurprising since criminal
cases are usually inherently dramatic. From young, the public are conditioned
to perceive lawyers as people who fulfil this role. I challenge you to think
back on your favourite on-screen courtroom dramas without it including an
accused, a defence lawyer, and a serious criminal charge.
6. In more
recent times, television shows like LA Law, Boston Legal and others have
featured a variety of riveting on-screen civil cases and so too have the movie
industry. However, such is the continued dominance of criminal cases on our
screens that some people watching a civil on-screen courtroom drama probably do
so without even realising that the trial is a civil and not a criminal one.
7. In real life,
however, many litigation lawyers specialise in various branches of civil law.
This includes divorce matters, damages claims, claims for monies owed, insurance
claims and interdicts to mention just a few examples.
8. In my
experience most “lawyers” do not practice any criminal law at all. So the assumption that most lawyers you encounter
make a living defending people in criminal cases will mostly be an incorrect
one.
9. Irrespective
of whether they are involved in criminal or civil cases, lawyers are NEVER permitted to lie to the Court.
Neither may they knowingly permit their clients or any other witnesses to lie
to the Court or to mislead the Court.
10. Throughout my former career as an attorney, I
never once found it necessary to lie to a Court, nor did I ever find it
necessary to knowingly permit a client or a witness to lie to any Court.
11. That said,
there were the odd occasions when I started to suspect that my client might be
lying, and other times where skilful cross-examination by opposing counsel
disabused me of my belief that my client was telling the truth. Sadly, no
practitioner is fortunate enough to retain a monopoly on honest clients for
long.
12. Of course, one
has bad apples in every profession, but from my experience, I can confidently
say that most lawyers I have encountered would never dream of knowingly permitting
or assisting their clients to lie to the Court or to mislead the Court.
13. In fact, my
experience is that most lawyers go to great lengths to ensure that they are
always unscrupulously honest with the Court, even in regard to the smallest of
matters.
14. Contrary to
the general public misconception, dishonesty will not normally assist competent
lawyers in their endeavours to become richer or more successful. On the
contrary, being caught lying to the Court or being caught assisting clients to
do so, even once, could result in disbarment and possibly also in criminal
charges of defeating the ends of justice. Most lawyers understand that no one fee
and no one client is incentive enough to justify the risk of disbarment or
worse.
15. Forgive me if I also make one further point
in defence of my former profession. If there were no dishonest members of the
public, the few bad apples in the legal profession would be out of work. And
yet, the public revel in making accusations about attorney’s ethics, when it is
some of their clients, the public, who are the ones who ask them to lie, to
destroy documents etc. in order to cover-up their clients’ malfeasance. It is
the public who commit the horrendous crimes in the criminal cases, and who
require the bad apples to assist them to lie to the Court.
16.I have seldom
encountered a dishonest attorney or counsel. Those that that are dishonest are known
to most practitioners. Dishonest members of the public, however, are a dime a
dozen. Many is the time I have shown the door to a potential client who has
asked me to lie to the Court or to assist him in manufacturing or destroying
evidence.
17. Most
attorneys are also only too aware that Judges and magistrates are human and that
most probably do talk/gossip amongst themselves. So too, do fellow attorneys,
counsel and prosecutors, as the case may be. If one is caught lying to the
Court or caught permitting a lie to be said in Court, one’s reputation, built
up over years of practice, will be irreparably destroyed in an instant. Nothing
can ever resurrect a damaged professional reputation.
18. A reputation is not only damaged by it being
proved that a lawyer is lying. In a minority of instances, there are cases
where the same practitioners seem to attract the same sort of dodgy clients or
they are repeatedly involved in situations in Court which cause eyebrows to be
raised. Dodgy clients do occasionally cross the paths of honest litigators and
this can lead to awkward situations. In my experience, however, dishonest
clients do not particularly enjoy lawyers with scruples, and they soon elect to
move on to those without consciences.
19. Practitioners cannot of course, always
choose their clients, but they can and do refuse to act for people who require
them to do anything illegal or for clients who expect them to assist such clients to lie to the
court. In order to practice successfully,
attorneys and counsel need to work closely alongside judges, magistrates,
prosecutors, and their colleagues. Persistent rumours or suspicions of
dishonesty would be the kiss of death to a lawyer’s practice. It is a
frightening road to failure, not a shortcut to success or riches.
20. Quite what motivates dishonest practitioners
to risk their reputations and their careers is a mystery not only to me, but to
all decent attorneys and counsel. I suspect that most of them are not too
competent to begin with, or perhaps they are tempted by laziness to risk their
careers in exchange for easy money, all the while hoping that they will never
be caught in the process.
21. But, I hear you ask, how can I be so certain
that so many practitioners are really as honest as they pretend to be or as I
think they are?
22. Firstly, in more cases than I can remember, I
have received documents from opponents in civil litigation matters which clearly
damages the oppositions’ cases. This is in
compliance with a procedural obligation to “discover” (disclose) documents in
advance of a civil trial. This
obligation applies irrespective of whether the document is damaging or useful
to the party discovering it.
23. In many of these cases, I was aware that
my opponents knew that we did not have copies of the damaging documents. In other
cases they knew that we were unaware of the existence of the damaging documents.
Despite possible questions from their clients as to whether the documents could
be made to “vanish” instead of being disclosed,
or despite any temptation to withhold the damaging documents from discovery in
order to ensure wins for them, my opponents instead always opted to discover
such documents.
24. My opponents would, where possible, content
themselves with either launching attacks upon the validity of the damaging
documents, or otherwise they would argue that the evidentiary value of the
documents in question was limited.
25. Another reason why I can speak about the integrity
of most lawyers is due to the countless occasions on which I have been
approached for advice by legal practitioners who have faced ethical dilemmas. Often
the dilemma would involve something trifling, where the risk of being exposed
for doing the wrong thing was negligible. And yet, there was always an
obsession on the part of most such practitioners I encountered to do the right
thing.
26. I mention this simply because most members
of the public never see or hear about lawyers agonising about doing the right
thing or about doing or about making the correct ethical choice in difficult
circumstances. And when I tell lay-people about how often legal practitioners
discuss ethical predicaments amongst themselves, and seek advice from each
other in regard thereto, I am often met with astonishment.
27. Now if I haven’t bored you to tears, I will
answer the question about why those who DO practice criminal law must defend
those who they may believe are guilty.
28. There is of
course, the reason that every person is entitled to the best defence possible. That
is a good enough reason on its own. A system of criminal justice cannot, in my
view, function properly without the competent representation of accused persons
in Court.
29. But there is a more important reason. I
discovered it through personal experience as a candidate attorney in a criminal
case. Simply put, the lawyer who believes his client is guilty could be dead wrong!
30. I won’t
tire you with all the details, but I was consulted by someone accused of the theft
of funds from his employer. He professed his innocence, of course. But when I heard his astonishing and
implausible story, I was convinced that he was lying. I was extremely reluctant
to handle his case. However, he convinced me to do so, and I ran the trial.
31. By now, you will appreciate that I was ethically
obliged to use his implausible version of the facts as the basis of his defence.
I did so believing that this would only serve to expose my client’s alleged guilt.
32. I cross-examined
the state witnesses, trying to trap them into concessions which would assist me
to argue that my client’s version was reasonably possibly true. The hair on the
back of my neck started to rise as, one by one, the concessions I required were
reluctantly made by one state witness after the other.
33. Such were the facts of this case that what
was happening in Court could only be the result of one thing. My client’s
outrageous version had to be true…and he was indeed clearly innocent. The
state’s case collapsed and the magistrate mentioned that it was his pleasure to
grant my client’s application for the discharge of the accused at the end of
the state case, which, quite correctly, was not opposed by the state
prosecutor.
34. I
learned a valuable lesson that day. Let the prosecutor prosecute, and leave the
judging to the Judge. A defence lawyer’s job is to defend. As long as defence
attorneys do not knowingly assist their clients to lie in Court and as long as
they do not assist their clients to mislead the Court, it is a job which can be
performed in an honourable manner.
35. Heaven forbid that you, the reader, should find
yourself in a situation where, as an accused in a serious criminal case, neither
your family, nor your friends, believe that you are innocent, when in fact you
are. Assume further that the public and media are baying for your blood. That
is the day that you may, for the first time appreciate, that even if your
lawyer does not believe you, you will need him to defend you, and you will
require that he does so to the best of his ability.
36. Of course,
there are those cases where the accused are guilty and lawyers, by doing their
jobs honourably, end up assisting guilty criminals to return to the streets and
to repeat their offences. Quite correctly, most civilised systems of justice
require proof of guilt to be beyond a reasonable doubt. This requires competent
police work and competent prosecution. If a prosecution fails, it often fails
for the lack of such competence on the part of the police or the prosecution,
and usually not solely because a lawyer did his duty towards his client.
37. To ensure that the innocent, who might one
day include you, are not wrongly jailed for crimes they did not commit, it is
necessary that we give the guilty the benefit of reasonable doubt as to their
guilt. The only consolation I can offer, is that most criminals repeat their
offences, and even if they escape conviction once or twice due to reasonable
doubt, most tend to find themselves back in Court and justice eventually
prevails.
38. Finally, where an accused person tells a
lawyer he is guilty, the lawyer has two ethical choices. He can have his client
plead not guilty and test the state’s case without putting any version which is
contrary to his client’s instructions to the state witnesses and without
permitting his client or any other defence witnesses to give evidence which
contradicts his client’s instructions. In such a case, and where the State’s
case seems strong, the defence attorneys often advise their clients of the need
to change their plea to guilty during the state case.
39. Alternatively, the attorney’s other choice is
to simply advise his client to plead guilty at the outset, and to concentrate
on the mitigation of sentence.
40. Finally, the
test for a conviction in a criminal case is that the accused’s guilt must be
proved beyond a reasonable doubt. That translates crudely into 85% - 90%
certainty on the part of the Court. There are several South African criminal
cases which explain that this means that even if the Judge does not believe the
accused’s version, he must still acquit if, after considering all the evidence,
there remains a reasonable possibility that the accused’s version could be
true.
41. In civil
cases, the Plaintiff must prove its case on a balance of probabilities. This
crudely translates into 51% certainty on the part of the Judge. Alternatively
put, if you think of the scales of justice, the Plaintiff has only to ‘tip’ it
in his favour slightly to win.
42. In a civil
case, such as a road traffic accident, where both drivers, Plaintiff and
Defendant, genuinely believe their own versions to be true, and there is no
other evidence to tip the scales one way or the other, i.e. a 50/50 situation,
the Plaintiff will lose. In South Africa, a Court then usually grants absolution
from the instance with Plaintiff to pay the costs.
43. The
difference between the criminal and civil burdens of proof will help the reader
to understand why in the United States, OJ Simpson could be acquitted of murder
due to reasonable doubt in the criminal trial, i.e. the Jury were perhaps only
80% convinced that he did it, and why he later lost the civil case in regard to
the same incident. In the civil case the Plaintiff managed to tip the scales.
44. Finally, and
due to the fact that most on-screen courtroom dramas are American, many South
Africans are under the illusion that I too walked around the Courtroom
addressing juries.
45. In South
Africa, juries were abolished during or about 1968 if memory serves me well.
46. I will write
another article in which I will argue that South Africa’s system of a Judge
(and two assessors in the High Court) is far preferable to a jury trial.
47. To whet your
appetite, let me just give one reason. A South African Judge cannot just say
guilty or not-guilty when delivering his verdict in a criminal case. He has to
give a fully reasoned judgment. He has to summarise the case. He has to
indicate which evidence he accepts, which he rejects, with reasons. This usually
involves dealing with each witness’s evidence in turn. I find the thought that a jury is not obliged
to give reasons for its verdict to be shocking in the extreme.
48. If a South
African Judge gets it wrong, e.g. he convicts taking inadmissible evidence into
account; this will usually appear from his verdict – there will be insufficient
admissible evidence from the Court record and from his judgement to sustain his
verdict. And hey presto, there you have your grounds for an appeal.
49. A Judge,
knowing that his Judgment could be published, and may be appealed against, is
thus forced to craft his judgment with extreme care. In my view, an accused is
entitled to nothing less.
End
See link to my article on the Dewani Trial.
http://siegfriedwalther.blogspot.com/2014/12/dewanitrial-to-after-blasts-case.html
The role of media in mass shootings / school shootings in the US:
http://siegfriedwalther.blogspot.com/2014/10/the-medias-role-in-mass-killings-school.html
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