Criminal Lawyers: Putting Up a Defence

• Author: Allan C. Hutchinson
• Pages: 157-181

157

CHAPTER 9

CRIMINAL LAWYERS:

PUTTING UP A DEFENCE

If the legal profession at large suffers from bad press, the criminal bar

is in a dire predicament. Indeed, the theory and practice of legal ethics

in criminal defence lawyering are seen by many to present in its worst

light the professional ethic that permits lawyers, as John Stuart Mill

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 lawyers have become inured to the issue and

its implicit moral censure, the question is still an important one and

needs to be addressed squarely. However, when unpacked, there is not

really one question that criminal lawyers must face, but three separ-

ate questions that demand very different responses. The f‌irst question,

“How can you defend someone whom you know to be guilty?” speaks

to the broad moral question of criminal lawyers being party to crimin-

als going free and being at large to commit further crimes. 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 particular individual chooses to commit

his or her professional life to criminal defence work. And the third

question, “How can you defend someone whom you know to be guilty?”

goes to the methods and tactics that criminal lawyers can legitimately

use to defend those people whom they believe to be guilty.

In this chapter, I intend to provide a framework within which to

develop answers to these diff‌icult questions. As usual, those answers

are not always obvious or universal. In the f‌irst section, I introduce the

LEGAL ETHICS AND PROFESSIONAL RESPONSIBILITY158

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 that might be placed on

those duties. In the third section, I explore how far criminal 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 particular, 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 canvass the different 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.

A. THE CRIMINAL LAWYER

The ethical history of criminal lawyering is populated by a cast of

colourful characters. At one end of the spectrum 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 relationship with defence lawyers.

While as a group they tend to be the butt of much criticism, individual

lawyers seem to be ch ampioned by t hose who have benef‌ited from their

services. There is a tendency to associate defence lawyers with their

accused clients, and so impute quasi-criminal behaviour or unsavoury

character onto defence counsel. As one popular critic observed, there

is “a post-Simpson belief that defence law yers are little more than f‌lam-

boyant actors delivering an incredible narrative to a gullible audience.”

This ambivalence about the role and function of criminal lawyers 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 branches of

professional practice. Nevertheless, criminal lawyers fulf‌ill a crucial

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 as there are criminal 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 themselves as well

1These are freel y adapted from B.A. Babcock, “De fending the Guilty” (1983) 32

Clev. St. L. Rev. 175.