How can a barrister defend someone he knows to be guilty?
This is the the old chestnut that all criminal barristers soon get used to answering. It is not a stupid question.
There is little problem defending someone you know is guilty if he admits it and has pleaded guilty, or been found guilty by a court.
Just because someone is guilty it does not mean that he forfeits his right to a defence. His barrister’s job then is to try, by honest means, to get as short a sentence as possible. Normally a great deal can be said for someone who has pleaded guilty. He may be full of remorse. He may have repaid the money he has stolen. He may, though it can be rather a hackneyed line, have suffered a terrible childhood. Or perhaps he has, since he committed the crime, given up drink or drugs, or managed to get a job after five years of unemployment.
Don’t try to evade the question. You know what I mean: how can you try to get somebody off if you know they are guilty?
I’m not trying to evade the question, but what do you mean by “know they are guilty”?
Do you mean they have told me they are guilty but I should try to get them off?
Or do you mean, “come on mate, anybody but a Class A dunderhead would realise they are guilty. You are not a dunderhead, at least not a Class A one, therefore you too must know they are guilty?”
I mean, say they said to you “I did it, but I want you to get me off.” How could you defend such a person?
This is how. First, I would say:
“The evidence is strong and because we can’t contradict it, you haven’t got a chance. I can’t accuse witnesses X, Y & Z of lying because they’re obviously telling the truth. I can’t call you into the witness box to tell a pack of lies. The virtually inevitable consequence of pleading not guilty is that you will be convicted by the jury (or magistrates) and your sentence will be much tougher. You really ought to plead guilty.”
Faced with that sort of advice 999 of these defendants out of 1000 will realise that the game is up and plead guilty.
You’re still evading the question, just like every other slippery lawyer I’ve ever met. What of the one in a thousand who won’t plead guilty. Would you still represent him?
Yes I would, but without doing any of the dishonest things like accusing the witnesses of lying, or calling a defendant to tell an admitted pack of lies. All I could really do would be what is known as “put the prosecution to proof.” I could argue that certain evidence was inadmissible, or that the prosecution case was not conclusive, but that would be as far as I could go.
But I have to say that this situation is so rare that I have never come across it, or even come close to it.
So what it boils down to is this, you would use your skills, if you have any, to get a guilty man off?
Yes. There is an important principle here; that we have trial by judge and jury, not trial by advocate. That system can only work if a client has complete trust in his advocate. It’s no good him worrying that his barrister will walk out on him if tells the truth.
Moreover, if the rule was that lawyers could not defend a guilty man, it would be assumed that anyone without a lawyer must be guilty.
How on earth can you bring yourself to defend child abusers and rapists?
Very easily indeed. It’s not my job to judge either the law or my clients’ morals.
The alternative to a criminal justice system is a lynch mob, and it is remarkable how readily righteous indignation, often by those who are far from righteous in their own lives, can spill over into orgies of violence. .
People accused of such things are not always guilty. Arguments rage about how many false accusations there are of such crimes; we simply don’t know, but undeniably there are some. The consequences of being falsely accused do not need spelling out.
But even if they are rightly accused we do not want mobs baying their guilt outside as they lob petrol bombs through the windows, and what is more very often the wrong windows as with the Portsmouth mobthat mistook a respectable paediatrician for a paedophile. We want proper, fair courts where guilt can be conclusively demonstrated.
Courts are only fair, certainly in an adversarial system, if both sides can argue their cases as firmly and as persuasively as possible. That means good lawyers, including defence lawyers, arguing in front of good judges. Little is more revolting than the spectacle, as in Soviet Russia, of lick-spittle “defence” lawyers parading their own disgust at the criminal instead of trying to defend him.
You don’t address the more interesting point (for me) of arguing for the conviction of someone you believe to be innocent. Presumably this occurs? Doesn’t it feel rather unpleasant?
OK, so very good explanation of how barristers lie during court cases. However, it still dosnt explain why? Have you NO integrity? Do you really care so little for the truth that you will do your utmost to discredit people telling the truth UNDER OATH!!! I really think the whole ethics of what it means to be a lawyer/barrister should be put under close scrutiny. Maybe, like doctors, you should have an oath such as “first, do not harm”. Because all I have witnessed so far is that you do GREAT harm.
It is surprising how many people do lie, whether under oath or not. It can often be the case that witnesses on either side give evidence under oath that simply cannot all be true. On the one occasion in over 35 years when a client has said he was guilty but wanted me to get him off I withdrew from the case. I didn’t have to but it seemed better that he should be defended by a lawyer who at least could contemplate the possibility that he hadn’t done it. Over the years I have come across apparently overwhelming prosecution cases that have crumbled to dust…not many, but some.
Excellent post and I will keep it for my next critic at the dinner table. For the critics who have already replied: it is all about the rule of law. Barristers cannot ethically take a position in court which they know to be contrary to what the client has said e.g. that they did the act forming an element of the offence. Moreover the cab rank rule means a barrister cannot refuse to act for someone just because she doesn’t like him or her or thinks s/he may be guilty. Ultimately it is for the jury to decide guilt, not the barrister.
One small correction: the pediatrician lived in St Brides, South Wales, not Portsmouth.
“There are some” false allegations… really?
Only a very few people seem to realise that the much published idea that “only 2% of women lie about rape” is the worst kind of myth…
The police and CPS admit that they push through rape cases, including historic ones (and “he said-she said”) that don’t really meet their original >50% chance of conviction notions, – because of the 2003 act’s illiberal defeat of the burden of proof, and because they have discovered that juries can and will convict such cases with zero corroborating evidence. How convenient that the statistics of successful conviction mean that the rule is clearly maintained!
The police have operated the “we believe the accuser” instruction more and more completely for the past three years, to the point of not just avoiding investigation of the possibility that a suspect is innocent, but active denial of evidence and leads put in front of them by defence lawyers.
We also know that 70% of cases (sampled in research this year) showed the police, illegally, failing to disclose evidence to the defence lawyers.
2016 saw (rounded figures) 23,000 accusations of rape/sexual assault made to the police.
21,300 of these were never pushed through to court.
To make light of the massive scale of “wrong”* accusations (*broader than the legal definition of false) by saying “some”, as if it is a minor afterthought – is just pandering to the same lynch mob mentality that insists, since the Savile fiasco, that any accusation is the smoke that reveals fire.
What we know is that just over 7% are proven false (just for starters that’s over 150 men last year whose lives were trashed by women who later admitted they lied about being raped)
and, between 7 and 92% may have been falsely accused.
I suggest it is farcical to decide that only women who admitted to having lied to police actually lied, and those other 21,000 or so accusers last year, whose cases were dropped, were all just unlucky that the police and CPS suddenly went against their norms and decided not to prosecute…
Is it realistic to suggest, despite the police deciding to believe them, but then finding their cases are too weak or obviously fictional to even meet the shoddily applied CPS criteria, that they are ALL telling the truth?
Or could it be that the truth is more like that shown by the last US research (1988) that was permitted, which showed the figure to be more like 45% of accusers will acknowledge that they lied about it if promised anonymity and immunity?
It seems obvious to me that the bandied about figure of female false accusers being “just 2%” or “some”, or a “very small number”, constitute the most obvious BS since the idea that rich people don’t commit financial crimes.
The result of all this is biggest massive injustice.
That being that, as well as the 10 – 20,000 innocent families whose lives are most often permanently trashed, there are also more innocent “sex offenders” wrongfully in UK prisons right now than for all other crimes combined.
And all this with an appeal system that totally denies their chance to overturn injustice.
Very well said.
“How on earth can you bring yourself to defend child abusers and rapists?
We want proper, fair courts where guilt can be conclusively demonstrated.”
And do you think we have that in the kinds of trials the question mentions…?