If you’re a barrister…

[JackanorysStories]

Have you ever defended someone you KNEW was guilty and they got off with the crime? If so, how did you feel about it? Do you just have to detach yourself in such cases? Or do you only take cases where you believe the defendant to be innocent? I guess that’s not possible otherwise clearly guilty defendants would never have anyone on their case. So you try and convince the person to admit their guilt or do you just have to give them all the possible outcomes and go with whatever they decide?

No judgement from me, I’m just curious about it from a personal perspective.

I’m not a barrister but we covered this at law school. There are rules about the defences you can run if you know they are guilty. I’m struggling to think of an example but I think something like you cannot say it wasn’t them but you can question the evidence the prosecution brings just enough to bring in reasonable doubt.

Thank you for this. So if they admit to you they are guilty then you have to word it carefully where you never elude to their innocence but still defend them?

I just wonder how it feels if you defend a rapist, for example, and they go free and you know they’re guilty. Does that ever stay with a person or do you have to be able to separate any personal feeling?

If a client tells a lawyer that they committed the crime in respect of which they wish to plead not guilty, the lawyer has to cease to act for the client.

Ah okay, so what happens then? Do they draft in a new lawyer who isn’t told of what has happened?

What about if you aren’t told, but you are just…sure they are guilty? Things they say. So no outright admission of guilt but enough to make you sure they are guilty - Do you also have to step back?

The point about the legal process is none of us "knows" exactly what happened. A person is subjected to a trial and held to account against what's legal or not (not what you personally think is "right"). That's the process.

Okay, no need to be rude, I was just curious about people’s feelings doing a job I know little about. Thanks for your input.

@JackanorysStories

"Ah okay, so what happens then? Do they draft in a new lawyer who isn’t told of what has happened?"

Yes a new lawyer would be instructed. The outgoing lawyer is not able to say why they are ceasing to act.

"What about if you aren’t told, but you are just…sure they are guilty? Things they say. So no outright admission of guilt but enough to make you sure they are guilty - Do you also have to step back?"

Depends how sure. A lawyer is under a professional duty not to mislead the court, so could not say something in advocacy that they knew to be untrue. That said, often the defence work isn't so much in proving or disproving that the defendant did something, but in persuading the court that the lesser charge (e.g. manslaughter instead of murder) is the appropriate crime to convict for.

You never know if someone is guilty or not. And it's not your job to decide. I think this case https://en.wikipedia.org/wiki/MurderoffLesleyMolseed demonstrates clearly what happens when the defence barrister decides their client is guilty.

So unless your client tells you they are guilty, in which case you cannot put a positive defence, you have no idea and it's not helpful to you or your client to pretend you do.

As a criminal lawyer, yes you can continue to act for someone who has told you they are guilty but you cannot put forward a positive defence on their behalf. For example you can put the prosecution to proof (make them prove the case - which is their legal burden) but you could not then put forward a defence on the (guilty) client's behalf. If the client insists you do that then at that point you are professionally embarrassed and have to withdraw from the case.

@Elektra1 "A lawyer is under a professional duty not to mislead the court, so could not say something in advocacy that they knew to be untrue."

I've seen a Barrister do this in court. The Judge removed the jury from the court room immediately and absolutely bollocked the Barrister and made him tell her how he was going to correct his error with the jury, word for word. She was brilliant and the Barrister was a buffoon. It was particularly pleasing for me as he'd tried to discredit me in the box, however the Judge knew I was right and intervened at that point too.

Barristers don’t normally choose their cases. The Chamber’s clerks allocate them. Guilty people deserve to be represented. How a case is determined also affects sentencing. So mitigations etc matter even for the guilty.

If you watch the just finished Channel 4 programme The Jury: Murder Trial you will have some idea about juries . There are serious flaws with it, not least no summing up by the judge. Also jurors are matey, a few somewhat bullying and the juries do not appear to be a cross section of the public, but I think it was interesting. Plus I would not want some of them on a jury trying me! Way too emotional and bringing their own emotions and life experiences into their judgements whether relevant or not.

This comment is not rude. They are reply to help you understand what you don’t know.

DH is a barrister and always says that even when he KNOWS someone is guilty (not because they’ve told him, he just knows it!), he still has to do his best to present everything and be as thorough as he can for his client, otherwise they’d have grounds for an appeal (eg. If he didn’t do a good enough job of trying to show his client “didn’t” commit the crime, if the client was found guilty, they could appeal the decision based on having poor counsel), so even though it’s a bit rough, it means he knows he’s done his job properly and if the client is found guilty, they‘re more likely to receive the sentence they deserve and have to adhere to it.

OP, do you think that lawyers have a magic wand on them which means they can 'know' (or, as you put it, 'KNOW') things about people such as guilt? Because surely, if we did, why bother with the expense of a justice system? it would save so much time and money if lawyers could simply determine guilt after a chat with their client. If you can sense for even a second just how horrifically flawed a system that would be, perhaps you will understand why no lawyer worth their salt would seek to influence an outcome in the way you are suggesting they might do.

In reality, lawyers weren't at the alleged crime scene any more than the judge or jury. Which is why the standard to find someone guilty in the criminal courts is not 'knowing' they are guilty but coming to the conclusion that they committed the crime 'beyond reasonable doubt'.

If a client says that they've committed a crime then you can only represent them on a not guilty plea by arguing that the prosecution have not proved the case beyond reasonable doubt. You cannot actively put forward a case saying that they didn't do it if they've told you that they have done it. I also want to correct any impression that a conference between someone accused of a crime and their lawyer is a confessional. It is not. It is a legal meeting where you take instructions and provide advice on the evidence you have before you.

I do not judge my clients because it's not my job to judge them or to 'know' anything about them apart from what is relevant to their case. I treat my clients with respect because I'm a professional not an immature teenager with an inchoate, reductionist sense of morality. Of course I don't like all of them but I recognise that easy assumptions about other people's lives simply don't hold up. Life is complicated; people are complicated. Nice people can do terrible things and nasty people aren't always guilty of everything they're accused of. Almost everyone I have ever met professionally or socially has done something at some point in their life which could constitute a crime, so I think it's really important that we don't try to pretend that there's one type of person who commits crimes and one type of person who doesn't. The reality of our country is that justice isn't blind and only some people get prosecuted for crimes which many types of people commit.

But to answer the original op. No, if I successfully defend a client I do not feel any sense of guilt whatsoever. I haven't done anything wrong so why would I? I'm a highly skilled professional who will have done a difficult job well. There have been occasions when I regret that the case hasn't been properly prosecuted; and there are many times I've disagreed with the conclusion the jury has reached but I'm not responsible for their decisions or how other people do their jobs. I'm responsible for myself and the job I do, the role I play within the system. The best thing I can do for the health of the justice system is do my job excellently, which is what I do do.

So, in summary, the titillating moral quandary you proffer doesn't exist; and if you had subjected it to any or any meaningful scrutiny for even as much as 30 seconds before you pressed 'post' you could have easily worked that out for yourself.

OP, You attach a lot of moral and emotional currency to the role , but actually that is not the function of the defence.

The legal burden is on the prosecution to demonstrate to the point of proof that what took place is criminal, and that the accused is the person who did it.

The defence is to provide a balancing set of arguments which challenge or show the prosecution evidence to be not reliable, not conclusive etc . Which may be the case whether or not the defendant is guilty. To that extent it is an objective exercise.

Defence may also present mitigating factors, but this is also important to a fair system.

IANAL but I have observed some trials.

Sorry - I hadn't intended to be rude. Apologies if it came across like that. I was just being factual. And as others have explained the legal process is (supposed to be) evidence-based. Nothing personal meant.

This exactly, it is not a 'popularity' contest

If you watch the C4 programme about a jury (2 of them reaching a verdict on the same trial and info) you will see emotion getting in the way of clear thought by jurors. It’s about them, and their feelings, not the facts laid before them. Barristers don’t do this.

And real life juries tend to be a lot more responsible in the way they listen to evidence and to the legal direction of the judge. IMO. It's a lot more boring, a lot less soap opera, a lot less theatrical in real life. It's a good example as to how different people react to different things, but not necessarily a good reflection of a jury's process. IMO.

I thought that too and maybe people were chosen for the experiment because they had back stories and were vocal? Definitely too emotional. We never heard from a few of them. I think the serious flaw was no summing up from the judge. Therefore not what really happens. However they tried to show deliberations and what can happen when views are polarised.

I think this is one of these rather silly myths about our criminal legal system. Clients are advised, they cannot be told what to do. A jury determines whether someone is found guilty or not, they hear both sides and are directed on the Law by the trial judge. When someone maintains that they are not guilty it is the barristers DUTY to present their client's case and challenge the prosecution’s evidence. That’s the whole purpose of a trial, to test the evidence. When someone, in the face of very strong evidence of guilt, nonetheless asserts their innocence, they have to be advised that a conviction after trial will result in a more serious sentence , and therefore consideration should be given to a guilty plea, BUT the ultimate decision rests with the client. After all aren’t all wrongful conviction cases evidence that the system isn’t infallible and juries can get it wrong. Far more worrying is representing an innocent person who has behaved foolishly and is in a very compromised position. How many films scripts start with the innocent man in the wrong place at the wrong time and no one believes his pleas of innocence ? If a client admits to guilt but will not plead guilt the barrister ‘for professional reasons’ must withdraw. A barrister cannot assert an untruth before the court, therefore once guilt has been admitted, the barrister/solicitor cannot continue to act unless the client is prepared to enter a guilty plea before the court.

OP I really recommend this book as a primer on it, it's really interesting as a lay person, and quite eye-opening!

https://www.goodreads.com/book/show/36620738-the-secret-barrister

I don't know if it's standard practice, or if this was a particularly emotive case.

We went through child sex office case (my DSD were the victims) and the stepfather and mothers were the perpetrators.

The evidence was irrefutable- video, photographic and text message - and they both admitted elements of it but not the full list of charges.

Both of their defence arguments were based on justification, rather than denial. I wonder if in situations where you know the person you're representing is guilty, sometimes your only option is to try and justify their actions, if there's little chance of denial against them.

As I say, this is my only experience of a legal situation, and I certainly didn't envy the task of professionals acting on their behalf - they had a poison chalice from the start. In fairness to them, their defence was haphazard at best, so I think they knew the case was pretty open and shut given the evidence.

Must be hard going though, I take my hat off to them. Everyone has the right to a fair trial and they must see and hear some awful things, it can't be easy.

What a great post! 👏

Why is there the split of duties between solicitors and barristers? It looks like it would be more efficient for the solicitor who has had more contact with the client and has prepared the case to also present the case. It seems like the solicitor almost acts as the barrister's PA.

Also, just for fun, on Breaking Bad the criminal lawyer is criminally complicit, advising the criminals how to hide cash etc. I think that would be enjoyable.