Criminal Lawyers: Putting Up a Defence

AuthorAllan C. Hutchinson
If the legal profession at large suffers f rom bad press, the criminal bar
is in a dire predicament. Indeed, the theory and pract ice of legal ethics
in crimin al defence lawyering are seen by many to present in its worst
light the professional ethic th at permits law yers, as John Stuart Mil l
put it, to “frustrate wit h their tongues.” These general concer ns usually
crystallize in the most pressing question that criminal lawyers have
to face: “How can you defend someone whom you know to be guilty?”
While many criminal law yers have become inured to the issue and
its implicit moral censure, the quest ion is still an import ant one and
needs to be addressed squarely. However, when unpacked, there is not
really one question that criminal law yers must face, but three separ-
ate questions that demand very different responses. The f‌irst que stion,
“How can you defend someone whom you know to be guilty?” speaks
to the broad moral question of crimin al lawyers bei ng party to cri min-
als going free and being at large to commit further cri mes. The second
question, “How can you d efend some one wh om you k now t o be g uilt y?”
addresses the issue of why a particula r individual chooses to commit
his or her professional life to cr iminal defence work. And the t hird
question, “How can you defend someone whom you know to be guilty?”
goes to the methods and tactics that criminal lawyer s can legitimately
use to defend t hose people whom t hey believe to be guilty.
In this chapter, I intend to provide a fr amework within which to
develop answers to these diff‌icult questions. As usual, those answers
are not always obvious or universal. In t he f‌irst section, I introduce the
basic challenge that cr iminal lawyers face and analyze t he different and
not-so-different circumstances under which they operate. The second
section examines the duties and responsibilities of criminal lawyers
and sets the scene for understanding the limits th at might be placed on
those duties. In the third section, I explore how far crimi nal lawyers
can or might go in arguing a defence for their clients. The fourth sect ion
concentrates on the thorny issue of the l imits that exist around raisi ng a
“false defence” and, in part icular, the problem of what to do when law-
yers believe that their cl ients a re going to or have committed perjury. In
the f‌ifth section, I ca nvass the dif ferent role of prosecuting counsel and
inquire into the ethica l responsibilities that this i nvolves. Fina lly, I look
to the interesting eth ical challenges for defence and prosecution lawyers
in engaging in the common practice of plea bargaining.
The ethical history of cr iminal lawyering is popul ated by a cast of
colourful characters. At one end of the spectr um lies the ennobled
image of Clarence Darrow and, at the other, are the more dubious per-
sonas of contemporary f‌igures such as Johnnie Cochrane and F. Lee
Bailey. The public have a love-hate relat ionship wit h defence law yers.
While as a group they tend to be the butt of much critici sm, individual
lawyers seem to be ch ampioned by t hose who have benef‌ited from their
services. There is a tendency to as sociate defence lawyers with their
accused clients, and so impute quasi-criminal behaviour or unsavoury
character onto defence counsel. As one popular cr itic observed, there
is “a post-Simpson belief that defence law yers are little more than f‌lam-
boyant actors delivering an incredible narrative to a g ullible audience.”
This ambivalence about the role and function of cri minal law yers ex-
tends to much of the legal profession, who tend to look down on them
as being engaged in a grubbier existence than the other br anches of
professional practice. Nevert heless, criminal lawyer s fulf‌ill a cr ucial
role in the legal process. Their mixed reputation is simply the price to
be paid in pursuing their chosen style of practice.
Of course, there are probably as many re asons for becoming a crim-
inal lawyer a s there are crimi nal lawyers. However, for present pur-
poses, they can be reduced to stock characters.1 Each of them can help
us to understand something about criminal lawyers themselve s as well
1 These are freel y adapted from B.A. Babcock, “De fending the Guilty” (1983) 32
Clev. St. L. Rev. 175.

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