The question I get most from non-lawyers when they learn that I am a criminal defense lawyer is the one that just occurred to you as you read this sentence up to this point: “How do you represent a guilty person?” I welcome the question, then I strengthen it, like Houdini allowing a skeptic to make sure the straitjacket is securely fastened before plunging into the tank of water: “What you really want to know is this: How are you doing a good thing by presenting a defense at a jury trial when you know, and your client knows, that he is actually guilty of the charges?”
Here’s the short answer:
What makes the practice of law a profession, as opposed to wage labor, is that lawyers provide people a particular kind of service aimed at achieving a specific professional ideal. By “ideal” we mean a high standard of behavior, aspiring to perfection, as conceived by the members of the group. For doctors, by example, the ideal of the practice of medicine consists in helping patients achieve optimal health, eradicating disease, pain, and disabilities. The ideal of the legal profession is to make it possible for people to participate in a meaningful way in the resolution of social disputes—either between them (civil law) or between them and their government (criminal law)—all in accord with the rules devised by the profession to keep order, peace, and dignity in society. Lawyers are those who, by education and practice, can speak the language of “law” on behalf of clients not so versed, thereby making meaningful participation possible.
Meaningful participation in a dispute with the government (criminal law) means that the person accused must be able to exercise autonomy. “Autonomy” means being the author of one’s own life, participating in the shape of that life, including having a say in one’s fate. This is a fundamental premise of what it means to be an individual. America’s founders expressed it by saying that each of us possesses an inalienable right to “life, liberty, and the pursuit of happiness.” Our Bill of Rights performs a similar and more specific function by drawing limits to the power of the government over the individual. (See, for example, the Fourth, Fifth, Sixth, and Eighth Amendments, which define the relationship between the state and the autonomous individual, limiting the powers of the government over the individual’s person, property, and privacy.)
Providing an avenue for meaningful participation in one’s fate in a criminal trial means that the lawyer’s role requires seeking the client’s freedom or minimizing how much of it the government may take, or, in capital cases, saving the client’s life.
This leads to the central paradox: When representing the person who in fact committed the crime alleged—assume that both lawyer and client know that the client is factually guilty—but who still wants to avoid responsibility, or to mitigate the punishment, the role of the criminal defense lawyer requires certain actions that seem to be bad for all concerned. For instance, in service to the professional ideal of meaningful participation, the lawyer must assist the client in asserting what they know to be a false answer, or “plea,” to the charges by pleading “not guilty.” Furthermore, it requires the lawyer to make assertions to the jury in opening statement and closing argument, and to cross-examine government witnesses, in ways that further the client’s desire to avoid responsibility and punishment. The lawyer makes statements—for example, that no crime occurred, or that the defendant did not commit the crime charged, or that the defendant lacked the requisite intent—and conducts cross-examinations to call into question the witness’s memory or truthfulness.[1] These statements and objectives, however, often do not comport with the factual “truth.” How can this be a good thing, or a good way to structure a criminal justice system? After all, it appears to involve both the client and the lawyer in dishonesty.
The relationship between the accused individual and the government has been structured to remove the expectation from the individual to admit guilt, even when he or she is guilty. By extension, the similar expectation is removed from the lawyer, allowing the lawyer to raise questions about the defendant’s guilt and challenge it, even with knowledge of factual guilt. This structure has arisen because we, as a society, demand that our government justify to society the harm it seeks to inflict upon the accused person, where harm consists in the taking of freedom, property, or life.
Thus, and this is critical, the goal is not to seek the absolute “truth,” as such, but to seek the “truth of the government’s case.” This phrase is more commonly expressed by the requirement that the government prove the guilt of the accused “beyond all reasonable doubt.” Proving the guilt of the accused “beyond all reasonable doubt” is the only “truth” that matters in a criminal trial. The justification to society for proposed harm of an individual by the government, therefore, becomes paramount in the structure of our criminal justice system.
By structuring the relationship this way—by making the “truth of the government’s case” the only truth that matters—society has removed the expectation of confession from the accused. It has also removed the expectation that the defense lawyer whose client is guilty must refuse representation or worse, become a witness against the client. In this framework, the not-guilty plea and the defense theory of innocence are no longer dishonest, but merely the necessary ways the individual and the lawyer hold the government to its burden of proof. The “dishonesty” of these acts has been removed altogether. And, of most importance, it has been removed for a higher moral purpose.
What is that higher moral purpose that justifies this way of conducting a criminal trial? It is this: We abhor the punishment of innocent persons. We want our government to punish only those who are actually guilty. “Better that ten guilty persons escape than that a single innocent person suffer,” as Sir William Blackstone put it over 250 years ago. If this is our “higher moral purpose”—to restrain our government from punishing innocent people while allowing it to punish the guilty—and if the professional ideal is to provide meaningful participation to each person in the resolution of his dispute with the government, then there is no other way to achieve these lofty and worthy goals than the way our system has been designed.
The best way to ensure that the innocent will not be punished is to allow everybody equally to say to the government: “Prove it.” Both the innocent and the guilty may require this of our government, equally, so much so that our law requires that we begin a criminal case with the presumption that the accused is innocent.
Even with this system, however, it is not perfect. Some innocent persons will be punished unjustly, and some guilty persons will go free. To paraphrase Churchill on democracy, “Ours may be an imperfect system, but it’s better than all the others that have ever been tried.” Indeed, there is no other way than this one, ever devised in human history, that comes close to achieving this worthy goal of discriminating between the innocent and the guilty before we allow our government to harm the guilty and let the innocent go free.
[1] What the lawyer may not do, by contrast, is to offer evidence, through witness testimony or documents, that the lawyer knows is false. While the lawyer operates within a defense theory of innocence that seeks to raise doubts about the truth of the government’s case, the expectation that witnesses will testify truthfully remains inviolable, prohibiting the lawyer from offering perjured testimony or false or fraudulent documents.
