Defense Lawyers and such

You never tell your lawyer you did it. Once he knows the truth, he's stuck with it. He can't tell anyone, but he can't allow you to lie on the stand if he knows you're lying. So, if you're guilty, you don't say it to them.

If you're innocent, this is useless advice of course.

From what I've heard, Wayne K is right, a defense lawyer can't allow their client to lie on the stand.

I also heard somewhere that a defense lawyer shouldn't ask their client a question they don't already know the answer to.

Defense lawyers who knowingly defend guilty clients don't put them on the stand, so they don't have to lie. According to the Constitution everyone is entitled to a fair trial and a competent defense, even the guilty ones. Even OJ Simpson.

CACTUSWENDY said:

My question is....when a person meets with their lawyer do they always tell the whole truth to him/her? I understand the confidentially of the relationship but do the bad guys really tell it all? We see all the time that the bad guys lie to the prosecution and that is to be expected.

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People tell their lawyers what they want the lawyer to know. Some criminals will tell their lawyers everything.

How can a defense lawyer 'keep' the laws of the land if he knows his guy has done, let's say, a killing? I don't understand how this fine line of being a lawyer and knowing the laws can allow him to defend someone that has broken the law.

I have a story that the bad guy is a serial killer and his lawyer knows all this. But I can't figure out how this lawyer can defend him. I can not figure out what goes on in his thinking.

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Lawyers do not "'keep' the laws of the land." A lawyers job is to act for his client. As a representative, the lawyer should keep his personal ethics out of the situation. Whether a lawyer is defending a traffic violation or or multiple murders is of little consequence.

I don't know about lawyers, but the idea of supporting a position that might not be my own kept me from becoming a lawyer. A friend who is a defense lawyer handles mostly drug and related cases, and he would prefer that drugs were legal, because the cases are pointless.

My brother is a defense attorney and he has said that some clients lie, some don't. But his job is to make sure that his client receives the best representation he can give them. Don't believe television or movies - most of the time defense attorneys are shown to be sleazeballs who rely on loopholes and obscure laws to get their clients off. In fact, my brother (like most real attorneys) has a very good relationship with the prosecutors, and plea bargains are preferred by both sides as it saves time and money and the defendant typically ends up with the same/equivalent sentence as if he would have gone to trial.

CACTUSWENDY said:

Never having a need for a defense lawyer I only have what I read and/or see on TV.

My question is....when a person meets with their lawyer do they always tell the whole truth to him/her? I understand the confidentially of the relationship but do the bad guys really tell it all? We see all the time that the bad guys lie to the prosecution and that is to be expected.

How can a defense lawyer 'keep' the laws of the land if he knows his guy has done, let's say, a killing? I don't understand how this fine line of being a lawyer and knowing the laws can allow him to defend someone that has broken the law.

I have a story that the bad guy is a serial killer and his lawyer knows all this. But I can't figure out how this lawyer can defend him. I can not figure out what goes on in his thinking.

Does it take a special mind set to be a defense lawyer? Is that why they get such a bum rap many times?

Thanks ahead of time for any insight you might share.

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The American trial process is adversarial in nature; disputing is the process of establishing the facts. Examination and disputing of facts by an adversary serves a similar purpose to peer review in academic journals or independent fact-checking.

Criminal defendants have a right to dispute the facts presented by the state. Many such defendants are mentally disabled, poorly educated, have limited proficiency in English or are otherwise inarticulate. Marginalized people may not be considered trustworthy by people in power. Even people guilty of serious crimes are reasonably entitled to have an advocate involved in the process, so they're not railroaded by the state.

An ethical criminal defense lawyer is a trustworthy intermediary between the criminal defendant and the court or jury. He should be smart enough to recognize flaws and inconsistencies in the prosecution's narrative, and he should be able to deal with the court and the prosecution on behalf of the defendant.

In a criminal trial, the burden of proof falls on the prosecution, which must establish the guilt of the defendant beyond a reasonable doubt. The defense is not required to prove anything at all; the defendant's innocence is presumed and the prosecution must overcome the presumption. If the defendant is guilty, the defense lawyer may be able to throw doubt on testimony of prosecution witnesses in cross examination, dispute the recollection of eyewitnesses, call experts who dispute the findings of state experts, etc.

If the evidence against the defendant is compelling, then a lawyer can examine the process of gathering that evidence. Physical evidence can be improperly gathered, in violation of the defendant's right against unlawful search and seizure. Confessions can be obtained in violation of a defendant's right to counsel and right against self incrimination. The remedy in such situations is exclusion of the evidence from trial, which means that the prosecution can't show that evidence to the jury. Without it, they may not be able to prove guilt beyond a reasonable doubt.

But if the evidence is solid and the police followed the rules, there often isn't much a lawyer can do, other than possibly negotiate a plea agreement. Serial killers don't get acquitted at trial. But there are a number of ways a sentence can be reduced by a plea, and around 90% of criminal cases end with plea agreements. Trials are time-consuming and expensive and juries can reach random conclusions for no reason, so nobody likes going to trial. Prosecutors will be willing to deal in most cases. Even your serial killer might be able to get a deal for life without parole instead of the death penalty, especially if he is willing to confess to all his crimes, which may be unsolved on the books of various law enforcement agencies, or offer the location of the remains of his victims, which families will want recovered for proper burial.

No, they don't. No client tells his or her lawyer the whole truth. At least it's never happened to me. If a lawyer knows that a client is in fact guilty of a crime, that lawyer cannot ethically argue that the client is not guilty (which is why 90% of cases result in a plea bargain). Of course, there are numerous ways around this, i.e. arguing that yes my client committed the crime, but he is not legally responsible because he's insane (which never works in the real world).

And yes, lawyers absolutely keep the law of the land. They're bound by a whole written set of ethical obligations, and if you break one, you're in serious, serious trouble. Each state publishes these obligations online, so if you really want to know what the lawyer would have to do in that given situation, Google it. They're most often called a "code of ethics."

Wayne K said:

You never tell your lawyer you did it. Once he knows the truth, he's stuck with it. He can't tell anyone, but he can't allow you to lie on the stand if he knows you're lying. So, if you're guilty, you don't say it to them.

If you're innocent, this is useless advice of course.

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The lawyer knows he did it anyway. Defendants do not have to testify at all; that's the point of the a fifth amendment right against self-incrimination. Every witness who is presented will be cross-examined by the prosecution.

It's probably not in the defendant's best interest to take the stand and try to lie, and then get caught lying. A lot of defendants think they are smarter than the cops and smarter than the prosecution, and they're wrong.

If the lawyer won't let him take the stand and he wants to testify, the client can always fire the lawyer. It's his trial.

The lawyer can't tell the judge or the prosecutor that the defendant admitted to the crime. That is protected by attorney-client privilege, which exists for the purpose of allowing defendants to exercise candor in communications with their lawyers without fear that those statements will later be used against them.

Of course, many criminal defendants follow a strategy of telling the truth to the cops and then lying to their lawyers, which keeps things interesting.

kelzey2 said:

I also heard somewhere that a defense lawyer shouldn't ask their client a question they don't already know the answer to.

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No lawyer should ask any witness a question he doesn't know the answer to on the stand at a trial.

Obviously, you are asking questions to discover facts in a client interview or a deposition.

djf881 said:

No lawyer should ask any witness a question he doesn't know the answer to on the stand at a trial.

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I had to laugh at that, but it was a "special judicial action" rather than a criminal trial, and I was an expert witness, but the lawyer certainly didn't know the answers to several questions, including one where he thought he'd trip me up.

PeterL said:

I had to laugh at that, but it was a "special judicial action" rather than a criminal trial, and I was an expert witness, but the lawyer certainly didn't know the answers to several questions, including one where he thought he'd trip me up.

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Had he deposed you? Had you produced a written report? There's no reason why he should not have known the substance of your testimony, and had a cognizable plan to impeach it.

Unless he was a shitty lawyer. I can't even imagine the state of mind required to ask aimless questions on cross to an expert witness.

First of all, it's important to remember that very few criminals are actually evil people. Most of them have simply made stupid choices, often due to poverty, their environment, drug use, or mental illness.


Some defense attorneys believe in the Constitution, the presumption of innocence, and the prosecutor's burden of proof.

Some defense attorneys like to fight for the underdog. The people on the government's side far outnumber the people on the defense's side. There are cops, victim advocates, the media, the public... all standing against your client.

Some defense attorneys simply want to help people, and believe in second chances.

Some defense attorneys just love trial work. They enjoy thinking on their feet. They enjoy crafting an argument. They think being in court is FUN.

Most defense attorneys have a bit of all of the above.

djf881 said:

Had he deposed you? Had you produced a written report? There's no reason why he should not have known the substance of your testimony, and had a cognizable plan to impeach it.

Unless he was a shitty lawyer. I can't even imagine the state of mind required to ask aimless questions on cross to an expert witness.

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He hadn't deposed me, but he had my written report. He thought one thing, but he was mistaken, and he thought that he had established his opinion as fact. He wasn't a bad lawyer. I ran into him at other times, and it was clear that he was far from stupid, but he laid a trap and fell into it.

His question was far from aimless.

CACTUSWENDY said:

Never having a need for a defense lawyer I only have what I read and/or see on TV. And there's a big yellow bird that goes prancing around TV as well.

My question is....when a person meets with their lawyer do they always tell the whole truth to him/her? I understand the confidentially of the relationship but do the bad guys really tell it all? We see all the time that the bad guys lie to the prosecution and that is to be expected.

I always start a criminal client off with the discovery material from the police. My job is to protect his legal rights, not be his moral compass. At least if he's going to lie, let him do it intelligently. Some clients will shape their story around the discovery, some will tell the truth, some will lie, and some we won't even talk about their side of the story. And you need to understand that truth is rare in criminal cases, on all sides. It's based upon what people think happened, even if it's physically impossible.

How can a defense lawyer 'keep' the laws of the land if he knows his guy has done, let's say, a killing? I don't understand how this fine line of being a lawyer and knowing the laws can allow him to defend someone that has broken the law.

My job is to defend his legal rights and prevent him from being convicted unless the State can prove the case beyond a reasonable doubt. If the State can't do that, then my client walks (very rare).

Frequently my job involves finding a better consequence than jail/prison such as drug rehab. Or at least minimizing the time spent there. My job at that point is to advocate for my client. Again, I am neither the moral compass of my client or the prosecution. I'm just providing the arguments that my client doesn't know how make.

I have a story that the bad guy is a serial killer and his lawyer knows all this. But I can't figure out how this lawyer can defend him. I can not figure out what goes on in his thinking.

Many prosecutors become defense attorneys. Many defense attorneys become prosecutors. And both become judges. I've seen hanging judges that were defense attorney in their prior life. And one of the most lenient judges I know worked for the Attorney General's office.

I've walked guilty people out of court. I've had people convicted that shouldn't have been. But as defense attorney, my job is not to judge them (I do, but that's separate and distinct from what I do in court).

Does it take a special mind set to be a defense lawyer? Is that why they get such a bum rap many times?

It's a special mindset, but more about being an attorney than anything else. They get a bum rap because people hate seeing people who are guilty, or who they think are guilty, get to walk. Most defense attorneys are very ethical.

Thanks ahead of time for any insight you might share.

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Best of luck,

Jim Clark-Dawe

What jclark said. Thing is, anyone can lie to you in the system. I've been lied to by defendants, witnesses, victims, cops, opposing counsel, judges, and on a memorable occasion, my co-counsel. But I've also had all of the above tell me the truth. I've found most will try to tell the truth but shade it their own way. These are people. They come in more variety than M&Ms.

kelzey2 said:

From what I've heard, Wayne K is right, a defense lawyer can't allow their client to lie on the stand.

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It's a little more nuanced than that. Not only does a defendant have a right not to testify, he also has a right to take the stand. Depending on the jurisdiction, courts must get a knowing waiver of that right on the record out of the presence of the jury (WV does this, but the feds do not, IIRC).

If a defendant insists on taking the stand and his lawyer thinks he will testify falsely, the defendant can testify in "narrative" format. Instead of being asked questions by his lawyer, he'll just tells his tale to the jury. That's probably a tip off to the jury that something fishy's going on, but in the end, if a defendant is bound and determined to get on the stand and shoot himself in the foot, his lawyer can't stop him.

As for clients telling the truth, in my experience they tend to be more sins of omission. "Did I never mention those four old convictions before? Sorry."

This is another one where, in terms of the concrete rules, you're going to have to pay attention to the jurisdiction in which your story is set. The assumption that you're in the States hasn't been corrected, so I won't bother getting into how things are different in Canada, but even in the States, as I understand it, the rules vary from state to state. Different Bar Associations, etc. The ABA has some rules governing all this, but the states could add their individual twists.