Situation. Numerous victims come forward with similar allegations. Your client committed criminal acts against them. Damage control time. You may be given a chance to make a public statement denying guilt, maybe not. Either way, advocacy starts when your client makes the phone call to your office. Your client may be distraught, possibly crying. But, as the allegations and criminal charges continue to mound, it is important to keep the client’s goals in mind.
Dealing with Repugnant Actions or Fundamental Disagreements. It doesn’t matter if you think that your client actually committed the crime or that they should be incarcerated. The attorney’s opinion doesn’t matter unless it conflicts with ethical rules. In declining or terminating representation, the ABA tells us the following under Rule 1.16(b)(4): declining or terminating representation can only be done under certain situations including when “[t]he client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” Model Rules of Pro. Conduct r. 1.16 (AM. Bar Ass’n, Discussion Draft 1983).
Play Within the Rules. Be sure to understand The Model Rules of Professional Conduct of the jurisdiction you are appearing in. According to ABA Rule 3.3, “The attorney cannot present false evidence to the court or mislead the court.” Model Rules of Pro. Conduct r. 3.3 (AM. Bar Ass’n, Discussion Draft 1983). As an attorney, you are bound by the answers your client gives you (within a reasonable belief). This is why, as an attorney, you may not want to ask the client whether they committed the crime or not. The United States Constitution ensures defendants due process. Defendants are also entitled to effective legal counsel. Gideon v. Wainwright, 372 U.S. 335 (1963). In addition, according to ABA Rule 1.1(e), “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Model Rules of Pro. Conduct r. 1.1(e) (AM. Bar Ass’n, Discussion Draft 1983).
Determining Legal Guilt v. Factual Guilt. Your goal is to represent your client to the best of your ability, while remaining within the bounds of the law and of professional ethics. This can be difficult when you are representing a client who you know, or whom you suspect, is guilty. However, you have to do your best to get your client the most favorable outcome with the situation presented. In a criminal case, the burden of proof is beyond a reasonable doubt. As the defense attorney, it is one of your jobs to prevent the government from meeting this burden. A Defendant may have done something morally wrong, but that doesn’t mean they are guilty of a crime. As the attorney, you have to be familiar with the elements of the crime that your client is charged with. If you know the elements of the crime, it will be much easier to reach your goal of preventing the government from meeting their burden.
Attacking the credibility of the victim/witness. How does an attorney show that a witness is unreliable? By attacking the witnesses’ credibility. Eyewitness testimony can be unreliable, and many factors can affect the accuracy of a memory. “Rather than acting as mere recording devices, several decades of research demonstrate that witness perceptions are by nature incomplete and malleable as they are encoded, stored, and retrieved from memory.” Epstein, Jules. Eyewitnesses and Erroneous Convictions: An American Conundrum, in CONTROVERSIES IN INNOCENCE CASES IN AMERICA 41, 51-54 (Sarah Lucy Cooper ed., 2014). Humans draw inferences to fill in gaps of memory or just because our brain tells us it is more efficient to do so and if a witness is under stress at the time the memory is created, that memory can be even more faulty. “Thus, memory is not always reliable. For example, people often unconsciously ignore unhappy memories or even rework such memories into a more pleasing format. In doing this, an individual actually makes a memory derivative of his or her original reality.” Ahrens, Jan G., Recovered Memories: True or False? A Look at False Memory Syndrome, 34 U. Louisville J. Fam. L. 379–401 (1996). Understanding the circumstances in which a memory is made is especially important when eyewitness’s testimony ties your client to the crime.
Be sure to question the event itself, as any discrepancy in the witness’ testimony can get you closer to your client’s goal of “not guilty.” In addition to traditional impeachment trial techniques, experts on memory creation may be an option.
Deciding to Put a Criminal Defendant on the Stand. Important factors to consider when deciding whether your criminal defendant will testify include an assessment of their reliability (including how they will look to the jury), any prior criminal convictions which may come in, and whether your client may commit perjury. With all these factors taken into consideration, the attorney and client should make a determination of whether to testify or not, but the decision ultimately lies with the client and not the attorney.
Put Aside Any Personal Biases. Why would an attorney think their client would be found guilty? Because they reviewed all the evidence? Because the client confessed? Because the attorney had a personal bias they had not confronted? Biases can be based on life events or perceptions without even realizing it. Despite years of education and experience, this can, and does, happen. One may not be able to fully answer that question, but with awareness and continued training, future approaches can be improved. An individual who has a “negativity bias” allows negative things to disproportionately influence their thinking whereas “pessimism bias” overestimates the likelihood of negative outcomes. The Decision Lab https://thedecisionlab.com/biases (last visited Sept. 13, 2022). It is important to know yourself so that you can overcome any personal biases to most effectively represent your client.
Even when the evidence of a case seems overwhelmingly not in your favor, don’t give up! Keeping your client’s goal in sight while using all the tools available to the advocate will allow you to understand your role in the case while zealously advocating for your client. In the end, you might win that case you thought you couldn’t.
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