Section 3.17 Do You Ask Client About “Guilt”?

• Library: Criminal Practice 2012 Supp

13. (§3.17) Do You Ask Client About “Guilt”?

Every attorney will want all of the facts, details, witnesses, dates, times, and places, and every single scintilla of information from the client.

It is the author’s belief, after talking with a number of criminal defense lawyers, that counsel should purposely avoid asking or allowing the client to voice the ultimate legal conclusion of “guilt.” This can present a later ethical, as well as tactical, problem.

Counsel’s avoidance of this ultimate fact may well be questioned, at least in the mind of the public. Why doesn’t the lawyer want to know this ultimate fact? See ABA Standards for Criminal Justice, Defense Function Standard 4-7.5(a), Presentation of Evidence (3^rd ed. 1993):

Defense counsel should not knowingly offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses, or fail to take reasonable remedial measures upon discovery of its falsity.

Counsel may nevertheless be faced with a client who insists on taking the stand to testify falsely and a court that will not allow a withdrawal without an explanation, which could violate attorney-client confidentiality. The author suggests that, to avoid such a paradox, counsel should do the following: While in the initial interview stage, counsel should communicate to the client that:

· the attorney’s function is not to judge, and no attorney should base legal representation on guilt or innocence—quality legal care does not have to be earned any more than quality medical care by any member of the human race; and

· counsel needs to be aware of the facts to perform the proper defense function, but if a defendant communicated guilt and later wanted to take the stand, counsel has a particular duty as an officer of the court to protect against false testimony.

Any client should readily see the problem and, in most cases, will immediately express innocence and facts short of the ultimate issue. This may not be the best solution available under the circumstances, but in light of the problem, it is at least a viable alternative. Most defense attorneys believe that clients may very well, and often do, “shade” the truth and “gild the lily” in discussions with the lawyer regardless of the facts or charges.

Even if clients believe themselves to be guilty, it is a complicated legal conclusion; competent counsel should investigate sufficiently to be satisfied that evidence required to prove the necessary and essential elements of the offense is...