Q: My brother has been charged with a crime. He has a criminal defense lawyer, though, who says he is “fighting hard to prove his innocence.” Our question is: If the lawyer knows the client is guilty, then what?
F.B., Athens
A: The lawyer has an obligation to competently and zealously represent the client, within the bounds of the law; this includes ethical rules. The lawyer, for example, is not to elicit or promote testimony or evidence that they know is false. The lawyer is also not to encourage or participate in a fraud on the court. Thus, the situation you provide is sensitive and requires careful evaluation.
One factor to keep in mind is that criminal defense lawyers are not obligated to prove that their clients are innocent. They can present a defense that seeks to show there is insufficient evidence to convict beyond a reasonable doubt.
If an individual comes to a defense lawyer and proclaims innocence, the lawyer may or may not believe the client; in fact, perhaps the person is not being candid and is, in fact, guilty. The lawyer is still permitted to do their job. This may mean seeking a less harsh sentence, focusing on a lesser crime and/or seeking an outcome that challenges the client’s alleged guilt.
Q: If I am accused of a crime, am I required to tell the lawyer that I did it?
C.S., Seal Beach
A: This question is also challenging to answer. It could take a treatise to address all aspects of what clients should disclose to their lawyers. Certainly, as a matter of common sense, you do not want your lawyer to be caught by surprise because you concealed information or were misleading.
One option is to ask your lawyer just what they want to know and to what degree the lawyer expects or prefers that you be candid. Some lawyers do not want to know all the details. The expression “don’t ask, don’t tell” comes to mind.
Also, to state it again, the burden in a criminal case is on the prosecution. The defendant’s guilt has to be…
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