Should lawyers wilfully represent criminals they know are guilty?
According to (McBride, 2010) the ethical issue that confronts lawyers when defending a guilty client is the fact that it is a general stigma that a person guilty of a crime is required to be punished to the equivalent of the crime.
However, Asimow (2006) states that without correct solicitor representation, the defendant’s version of events will not be made clear to the court, this situation in itself will lead to the sentencing and punishment of the defendant solely based on the accusations of the prosecution.
What must be understood is that in all legal proceedings, situations will exist where a crime is a crime, for example, committing fraud in any circumstance will be seen and sentenced as fraud, however, the events leading up to, and during the offense, should be, and are considered in the court of law, with this process being referred to as, ‘case law’.
It should be noted, that during the proceedings of a case, a judge only knows the facts given by the representatives of the prosecution and defence, because of this fact, this is the main point of belief in why we advocate the representation of guilty client. As can be seen by these factors, the ethical dilemma
It must also be seen, as shown in D’Amato, 2010, that in our court of law, and how they operate, it is determined that a person is innocent until proven guilty, this also states that only two groups can make the final decision on the guilt of a certain person, this verdict falls down to the decision of the judge, or the jury presiding over the case, under no circumstances is a lawyer able to make that decision, regardless of client confession.
It should also be made aware that during the legal proceedings, the crime has already been committed, and therefore in reality the only person who still has the possibility to still be at risk is the client (D’Amato, 2010). As a legal representative of this person, their job is to ensure as much protection as possible for their client, doing this by ensuring the judge is aware of the facts of all parties involved in the matter to ensure a fair and unbiased trail.
As a result of these points, and the points presented by the other members of my group, we strongly advocate the representation of guilty clients in the court of law, as this is the only way to ensure a fair and just result in trial and therefore the only way that a defendants constitutional and human rights will be able to be upheld to the level they were intended.
Asimow, M 2006, when the Lawyer knows the client is guilty, Journal of Legal Ethics and Popular Culture, Vol. 3.
D’Amato, A, Eberle, E, J 2010, Three model of legal ethics, North-western university law journal, vol. 73, pp 780-782
McBride, A 2010, Defending the Guilty: Truth and Lies in the Criminal Courtroom, Viking Publishers, New York, America.
Though the affirmative argument has a few valid points, it fails to address ‘spirit of law’ and ‘legal ethics’ issues. The affirmative stance is more preoccupied with technical and documentation aspects of ‘case law’, but does not answer how a lawyer will ethically resolve the dilemma in question. It argues that a proper representation of the guilty client will help the jury and the judge to fully ascertain facts pertaining to the case, thereby helping them come to correct conclusions. But in reality, the defense counsel doesn’t just serve as a source of information. He/she tries his utmost to bend the will of the jury. (Wendel, 2010) Indeed, the counsel is paid to justify the acts of his client, however insincerely it is pitched and projected in the court of law. The affirmative stance would have us believe that representing the guilty helps due process of law and upholds the virtue of ‘innocent until proven otherwise’. But concerns of due process of law is not for lawyers to get bogged down over. Moreover, ‘innocent until proven otherwise’ might apply to the jury not cognizant of facts but not to the lawyer who is privy to the client’s guilt. (Brown et. al, 2009)
Wendel, W. B. (2010). Lawyers and Fidelity to Law. Princeton, NJ: Princeton University Press.
Brown, G. A., Fish, M., Gautier, J., & Muoio, M. (2009). The Guantanamo Lawyers: Inside a Prison outside the Law (M. P. Denbeaux & J. Hafetz, Eds.). New York: New York University Press.