How does attorney-client privilege work? And how is it not perjury to defend the innocence of someone who admitted their guilt to you?
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It gets slightly different depending on where you are in the world. It comes down to a lawyer cannot lie or mislead the court so KNOWING someone is guilty makes it difficult to defend, but you can defend someone you think is guilty but don’t know (ie you can think personally that they are guilty as sin, but unless the person confessed to you or something similar, then you don’t actually know that they are guilty)
From what others are saying it sounds like in the USA that the criminal can tell their lawyer they are guilty and the lawyer can say what he likes in court. Don’t know if that’s the right interpretation
In the UK, and I believe many other countries, lawyers rarely represent someone in a criminal case where they KNOW they are guilty as it greatly limits what the lawyer can do. It is because the lawyer cannot lie or deliberately mislead the court. So they can’t say or suggest their client was on the other side of the city at the time of the crime when they know they weren’t. It’s for this reason that criminals rarely admit their guilt, especially the full extent.
It means that lawyers may represent people who they believe are guilty but don’t know they are guilty. It’s also about giving the person a fair trial and process
What the defence can do is argue that the evidence doesn’t support the prosecution’s argue ment (eg that the witness couldn’t have seen that for xyz reasons, that their fingerprints/dna being there doesn’t mean they were there at that time but at some point before or after, etc)
I found this interesting article written by barrister in the uk that explains a lot of it
https://metro.co.uk/2018/08/01/people-ask-me-how-i-sleep-at-night-as-a-barrister-representing-criminals-who-might-be-guilty-is-just-part-of-my-job-7750268/
A lawyer can’t refuse to defend someone on the basis that they don’t like the client, or forms of discrimination, but they can refuse or step down for other reasons, but the client can also fire their barrister. The barrister has to honest with the client and tell them the restrictions they are under and what they think their chances are of a win. If the client thinks “shit. I said too much and this guy knows I’m guilty so won’t be able to argue that I’m not. I should get another lawyer and keep my trap shut” the. The client has a right to choose a new lawyer
As an example, I had a client once who I knew was going to lie on the stand due to attorney -client communication. I am an officer of the court and cannot assist in perjurious testimony.
During trial, I asked my client exactly 2 questions: 1) do you remember this date: and, 2) what happened. That’s it. The judge knew and the prosecutor knew why I was not conducting a proper direct examination but the jury had to decide if he was lying or not.
These kind of situations are nightmares for attorneys.
If ur interested in systems outside America, I can point to a privilege in the province of Nova Scotia in Canada. The Nova Scotia Civil Procedure Rules 14.05 governs privilege.
Solicitor client privilege applies under the following conditions
1. Legal advice is sought (non-legal advice is not protected)
2. The advice is provided in the capacity of a lawyer.
3. Also applies to conduits (eg. Parent helping their children in a case)
Not legal advice
Not all legal defense strategies involve proof of innocence. there are many possible defense strategies including ‘i didn’t do it’, ‘i did it, but what i did does not amount to the crime alleged’, ‘i did it, but here are the mitigating circumstances around why i did it’, and ‘i did it, but i am unable to tell right from wrong, so i technically didn’t do it’
All accused are entitled to a competent defense, and in order to formulate a proper defense there needs to be free communication between the accused and his counsel. this is why the attorney-client privilege exists. one of the caveats is that your attorney cannot allow you to give false testimony under oath. if you tell him you did X, he cannot put you on the witness stand and allow you to swear to the court that you didnt. if your client tells you he is planning to kill someone or commit some crime in the future, there exists both rules for disclosing that information to the authorities and mandates that some things are reported. the privilege is not unlimited, and failure to abide by the rules opens the lawyer up to suspension/revocation of their law license.
perjury is knowingly offering false testimony under oath. witnesses are under oath, lawyers questioning them are not. your lawyer cannot allow you to commit perjury, if they know you are being untruthful. the lawyers cannot commit perjury themselves unless they are sworn in as a witness and provide testimony. it would be very unusual for either the defense or prosecution lawyers to be called to the stand, so unless they purposefully fill out court documents with incorrect information there is rather few opportunities for a lawyer to perjure themselves.
Fundamentally speaking, the purpose of an attorney is to put everyone on the same playing field, the attorney acts as the client’s mouth and brain and speaks for them. A lawyer doesn’t just go up to the stand and say “XYZ is not guilty”, they bring forth evidence that is favorable to you while the court brings evidence against you.
That said, a lawyer isn’t allowed to lie about whether or not their client committed the crime, nor is it important for them to ever state so. Their purpose is to present evidence since in the end, words are just words and there’s no way to ensure any of it is true, so evidence is key.
And an additional note, you plead guilty/not guilty to crimes, not actions. Pleading not guilty to a murder charge does not mean you deny ever killing someone, you just think the charge you’re assigned with is not appropriate.
(disclaimer: this isn’t legal advice and I’m not a lawyer. Anything I just said could be incorrect)
As a former defense attorney friend put it, he **never** asked if they did what they were accused of. His job was to present a defense, which he did as best he could. The prosecution has the duty to prove it beyond reasonable doubt, he presented the rationale for doubt and/or exoneration.
Also, he left the field. Not a fun gig apparently.
P:erjury is when sworn-in witnesses lie. Defense lawyers are not witnesses, it’s not perjury for them to defend accused people.
So first off its not up to the defence to prove innocence, its up to the prosecution to prove guilt.
At a certain point however, lets say they got the guy in pure 4k doing it and he went and bragged about doing it, its not about “Defending” but more “Making sure the prosecution is doing their job properly, crossing Ts, dotting I, and making sure the trial is fair”
Don’t think of it as “defending their innocence.”
The lawyer is only defending their defendant’s right to a fair trial per the laws.
For example, a cop can straight up lie to you: “we found your fingerprints on the murder weapon.” (Even if they didn’t find any prints)
Without a lawyer, you might just admit guilt right there. A lawyer will ask to see the evidence and tell you not to admit anything.
Whether or not you’re guilty is irrelevant. You aren’t **required** to admit guilt there, and a lawyer helps remind you of that.
You are not defending their innocence, you are defending their rights. The government cannot simply accuse someone of a crime and throw them in jail. American jurisprudence is based on the idea that the highest ideal is freedom; and the government cannot deprive someone of their freedom without proving their cause is justified. It is better, says the American justice system, for a guilty man to go free than for an innocent man to lose his liberty.
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