The right of anyone accused in a court of criminal law to a fair trial is vital for a civil society. This right is enshrined in Article 10 of the Universal Declaration of Human Rights, as well the Sixth Amendment to the U.S. Constitution. But the actual implementation of the right to a fair trial can be messy and certainly controversial. For example, where does defending a client that one knows to be guilty fit in the ethical obligations of a defense attorney?
To best understand how a defense lawyer must conduct themselves in these situations, it’s best to step back and consider the 3 roles that all attorneys—be they for the defense, the prosecution or focused on civil law—must play in our legal system.
A lawyer must fulfill 3 functions:
- To be an advocate for their client
- To be an officer of the judicial system
- To respect the need to seek the truth within a system that places justice as its core value
The first role creates no ethical problems for a defense lawyer who knows their client is guilty. The second is a little more muddled. The third area is where potential problems come in. These problems are at the level of both professional ethics as well as how the legal profession is viewed by society at large.
Every situation is different and it’s important to understand exactly what is meant by “knowing” that a person is guilty. The general public might look at a high profile trial where the evidence against the defendant seems overwhelming. The public asks themselves: “How can the lawyer even defend that person! We all know they’re guilty.” If the crime is particularly ghoulish—for example, sexual assault against an underage victim—will the defense lawyer’s public image be even worse?
But do we really know the defendant is guilty?
We might know that the evidence means that it doesn’t look good for the accused. That’s quite different from knowing they are guilty. The jury has to make the decision. The only way to ensure that decision is fair is if the jury has heard all relevant information and considered every reasonable theory of the case. That only happens if the defense lawyer undertakes a vigorous defense, which may well include tactics and arguments that will be upsetting.
Consider an example from popular culture. The epic 1991 suspense thriller Cape Fear saw Robert DeNiro portray a man convicted of rape. Nick Nolte played the role of the man who had been DeNiro’s lawyer at trial. DeNiro was, in fact, guilty. Nolte knew it. When Nolte was given a report that went to the promiscuity of the victim, he buried the report.
The film itself is built around DeNiro’s later discovery of Nolte’s omission and his bid for revenge. DeNiro’s character is, by any measure, loathsome. Equally certain though is that Nolte failed in his ethical obligation as a defense lawyer—a fair justice system leaves the decision and all relevant information in the hands of the jury.
Why? Because the history books are filled with people everyone “knew” were guilty and turned out to have been innocent.
This means defense lawyers must put their personal feelings aside. Most willingly embrace this challenge. A survey by the American Bar Association showed that more than three-quarters of attorneys “prefer to make decisions based on detached objectivity rather than taking into account personal feelings or values.”
In fact, the most recently confirmed member of the Supreme Court, Justice Amy Coney Barrett, is currently writing a book on the importance of judges keeping their personal feelings out of their verdicts. The same applies to defense lawyers. It’s the only way to make sure the right to a fair trial is vibrant and alive, rather than just something performed as a rote obligation that always ends up in conviction of the defendant.
A zealous defense must still be conducted within ethical limits though. Let’s say that the defense lawyer really does know that their client is guilty—perhaps an admission was made in pre-trial preparations. The lawyer must still conduct a zealous and wholehearted defense in accord with everything noted above. However, they may not lie. The lawyer can’t tell the jury, “My client is innocent,” and they may not say anything to that effect when questioning witnesses.
How then does the defense attorney fulfill their role? By shifting the focus away from actual guilt and to the question of legal guilt. The basic premise of criminal law in the U.S. is that the accused must be proved guilty beyond a reasonable doubt. The defense lawyer must vigorously force the prosecution to meet this high standard and point out to the jury where it has not been met.
Everyone wants to see justice come to those who are victimized by terrible crimes, and no one wants to see innocent people sent to prison. The way to find that right balance of convicting the guilty—and only the guilty—comes with defense lawyers fulfilling their basic obligation to defend their client with all the resources and energy they can muster.