Answering the most frequently-asked question of criminal defense attorneys.
by Richard Hustad Miller
Criminal defense law is perhaps the most misunderstood practice in the profession of law. Perhaps the most misunderstood area within that practice is evidenced by the frequently asked question: "how can you defend a guilty person?" This essay attempts to answer that question by explaining how criminal defense law really works.
Most people understand the criminal defense lawyer according to character portrayals of the entertainment industry. According to the character Perry Mason, some believe the profession to be a continuously-exciting field in which the attorney rapidly moves from case to case solving his client's problems with keen detective work and by uncovering the real guilty party. According to numerous other depictions, criminal defense lawyers are a deceitful group who have a pile of under-handed tricks that they use to get their client off on a technicality. Both are extremes that do not reflect reality. In fact, it is a well-regulated profession in which there is a well-established system virtually prohibiting surprise and high ethical standards demanding adherence to the system.
Criminal defense lawyers play only a single role in a well-established system designed to determine guilt or innocense. The legal system created by the United States Constitution and refined by legislative statutes and common law decisions establishes an adversarial method by which the government, represented by the judge, guides the people, represented by a jury, to a conclusion of whether the defendant has done something that is prohibited by the system.
The most important principle in this established system is that the defendant is innocent until proven guilty. Therefore, the short answer to the question of how can one defend a guilty client is that the client is not guilty until proven so and that until that time must receive zealous advocacy. This answer, however, is not sufficient because it leaves one with the belief that a criminal defense attorney uses procedure as a shield from any sense of justice.
While procedure alone is not controlling, justice comes only through the use of the system. The legal system is not necessarily a reflection of popular morality; it is positive law in which an act must be specifically prohibited in order for it to be considered a crime. Thus, the word 'crime' is a term of art meaning any act that is prohibited by the system. Justice is achieved only when a crime is proven and that happens only after the mechanisms of the system have operated.
Those expected to determine whether a crime has been committed are the people, represented by the jury. Their function is to determine guilt or innocense according to the law, not their own morality. There are a number of jurors, usually at least six, to guard against the application of private morality. And as a last resort, the judge can overrule a jury when s/he believe its verdict was contrary to the facts. The jury makes its decision based on the evidence presented and the arguments made by the opposing attorneys.
To ensure that the best prosecution and defense are presented to the jury, the system is adversarial, pitting the proponents of prosecution against those of defense. The purpose for this stems from an understanding of human nature: human beings cannot be entirely objective and using their subjectivity as an asset is better than attempting to overcome it. Thus, each opposing attorney is assigned responsibility for advocating only one side and is expected to use the natural tendencies of subjectivity to assert that side's point of view to the greatest possible extent. However, each side must conduct themselves according to the rules of the competitive system.
The system of advocating each side is governed by established rules and according to well-known legal requirements. There are no under-handed tricks available to either attorney. There are only established procedural rules detailing precisely how a trial is to be conducted and what defenses and mechanisms can be used. This is not to say there is only one way of doing things. To the contrary, there are many possible courses of actions, each one of which is a tactical decision. It is in this area that the better defense attorneys distinguish themselves. They are better not because they have devised some devilish trick or surprise attack, but because they know all the rules and all of the law and are very good at determining which course of action maximizes the defense position. A good attorney is so because s/he knows the system.
Deviation from the system of rules is not only prohibited, but strictly punished. An attorney who uses deceit or any other means of defense that is not lawful is subject to censure or even disbarment. The boards of ethics in the various states and federal districts take such deviations very seriously and issue punishments accordingly.
Likewise, poor attorney advocacy is prohibited. Whether due to neglect or incompetence, an attorney must present a case thoroughly using all legal means of defense. This even includes refraining from defending a case to which the attorney lacks the necessary skills. This is especially so in the case of a criminal defense attorney whose client is in jeopardy of losing liberty or even life.
But what about if the defense attorney knows the client is guilty? The easy answer to this is that the defense attorney should never ask the client that question or allow the client to confess to him/her. It is not for the defense attorney to determine whether a crime was committed. To do so is a substitution of the values of the defense attorney in the place of the jury's determination of a legal conclusion and undermines the search for justice within the system. The more difficult answer is that the defense attorney should not concern him/herself with overtaking the job of the jury and passing judgment on the client. That not only is contrary to the role of the defense attorney, but interferes with the role that is expected of him/her. The most zealous advocacy of a client's position cannot be attained when the defense attorney is morally troubled in an attempt to judge a client. In this situation, justice is served by ignorance.
Therefore, the job of the criminal defense attorney is to present the most effective case possible in opposition to the prosecution. This is not only the defendant's right, but an essential part of the determination of justice. The jury needs to hear all sides thoroughly and completely before determining whether a crime has been committed. Anything short of that undermines the legitimacy of the system.
Finally, when one is disturbed by a trial verdict, it is not the defense attorney that should be blamed for using the tools provided to him/her by the system. If one does not like the tools, one should attempt to change them, not the person who utilizes them. Criminal defense is simply a profession that works within the system. Unfavorable criminal trial decisions are made by the people--the jurors--not the attorneys.
So when a person asks how can you defend the guilty, the answer is that only the people can decide if the defendant is guilty and until they have spoken, through the jury, the criminal defense attorney must use the tools created by the people, through the Congress, to properly represent an accused.
(c) 1999, Richard Hustad Miller, All Rights Reserved