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April 06, 2006

Criminal Defense Dilemmas

Blonde Justice has had a string of absolutely fantastic posts recently about criminal defense dilemmas. The first jumps off from the witness tampering imbroglio at the Moussaoui trial and asks whether “my supervisor told me to do it” can excuse an ethical breach by an attorney. In the comments, that led to some great discussion, including consideration of the ineffectiveness of relying on lawyers to regulate each other's ethical conduct.

The second post raises an ethical dilemma about the duty of attorney A to tell attorney B about a questionable aspect of a case when A hands off the case to B. The excellent discussion in the comments includes this gem from “jasonpw”:

[A]nybody doing criminal defense work better have a reasonably tuned bullshit detector. If you don't you'd better do something else.

And this from PD Dude:

I was taught as a law clerk your order of priorities is 1) bar card, 2) client, 3) society.

And finally this from That Lawyer Dude:

It may come as a suprise to many but truth is not necessarily a by-product of a trial. Justice however is.

It never fails to amaze me how many people sit convicted of crimes because a lawyer refused to believe the story the client told them and wouldn't put it before the jury.

Blondie's third post in this great series about ethical dilemmas is mostly her reaction to the previous discussions, plus a little twist for further consideration. It also addresses the “interview by suggestion technique,” which an attorney can use to guide a client toward a story that fits well with what the attorney thinks is a good theory of defense in the case. For example, if you're accused of possession of cocaine, in order to be convicted you have to actually know the cocaine was in your bag/pocket/car/whatever, and you had to actually know it was cocaine and not powdered sugar or something else. So in the “interview by suggestion” technique, a lawyer might ask you: “So you had no idea what was in that bag, did you?” or “You saw the baggie, but you thought it was powdered sugar, right? I mean, Joey is a baker, isn't he?” (I apologize for the really bad examples, but I hope you get the idea.) Blondie says this technique isn't her style; it's not mine either. I've learned different things from different lawyers about the extent to which this technique is useful, but in my admittedly limited experience it just has never seemed very helpful.

One of my mentors once told me along these lines that instead of asking a client “what happened?” you should ask “what is the government going to say happened?” Of course, your client can't know this, exactly, but it gives the client an initial clue that what's important is not necessarily “the whole truth” (since the client often does know that any more than you do),* but what the cops know and what the government is likely to be able to determine through investigation. I think this approach can be useful in some cases, but I think it can also lead to a troubling lack of candor between attorney and client which can ultimately be unhelpful. It can also lead pretty quickly to the whole “interview by suggestion” and its related problems.

So what is the best way to approach the initial or even second or third interview with a client? As some of Blondie's commentors suggest, “interview by suggestion” is different from hearing your client's story and then explaining possible defenses. My limited experience has been that a client will usually not tell me much about what “really” happened at first. In fact, I'll get nothing but denial. “I wasn't there” or “I didn't do it” or “It wasn't mine.” But after I explain the elements of the crime and what must be proven for my client to be convicted, the client will often mention some bit of info that conforms at least somewhat to a possible defense. Is the client lying at that point? Maybe. But what matters more is what's going to convince the judge (or jury, but I've never been anywhere near one of those). The client can say anything he/she wants and it can all be 100% true, but none of it will matter if the government has a witness or piece of evidence that is going to make the judge tend to doubt the client's version of the story.

Speaking of Criminal Defense Dilemmas, Gideon's Guardians had a good one a while back, too. I have one of my own I've been meaning to write about, but maybe another day.

* The question of truth in the law is too fraught to go into here but what I'm getting at here is that the client can only know what he saw or heard or did. That's part of the “truth,” but, it's not only reliable. The client's story is always filtered through the stress and fear of arrest and possible (or real) incarceration, so even if he thinks he's telling you the whole truth, he might be forgetting or changing things w/out even meaning to. And what about what the cops did or said? Does the client know those things, or have intervening circumstances messed up his/her memories? And many times the client doesn't know what the cops did or said; he was paying attention to something else, such as the fact that he was totally busted. So obviously even the most honest and trustworthy client can only give you a story. The truth? As the Lawyer Dude said, it doesn't play a big role in our system of justice.

Posted April 6, 2006 10:38 AM | 3L crimlaw

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Sometimes the "what do you think the police will say happened" is the way to get your client to more or less admit to things that they wouldn't admit to you if you asked them straight up "what happened?".

But the truth is a very slippery thing in criminal law.

Posted by: Melissa at April 6, 2006 11:29 PM

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