“I did it but defend me”! How do you defend a client who is guilty?
By Jimmy Singh, the Principal Lawyer at Criminal Defence Lawyers Australia
Summary of article: This article is an outline of the true nature and role of what a criminal lawyer does, and how a criminal defense lawyer can lawfully defend a guilty client within the context of the criminal justice system.
A common question criminal defense lawyers almost always get asked is, “how do you defend someone who you know is guilty?”.
There has been a large amount of misconception about what the true role of a criminal defense lawyer is. This is largely contributed by media news which is often a very one-sided story.
While the devil’s in the detail, the public only sees what is shown through media news on television and online social media.
This article distills the myths around what criminal lawyers do, and what their contribution to society truly is.
What criminal defense lawyers do truly go far beyond defending.
In Australia, for example, the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules of 2015 provides a good foundational guide to reflect the values required by all lawyers to uphold. This includes the following:
Further to the above fundamental principles, lawyers also have a paramount duty to the administration of justice and the court, according to rule 3 of the Solicitor’s Conduct Rules 2015.
Part of a team of specialist criminal lawyers in Sydney, Jimmy Singh of CDLA explains how difficult it is to get away without being asked the common questions of “how do you represent a criminal?” or “how do you defend a person you know is guilty?”.
He explains that the role of a criminal lawyer involves many aspects, including, testing the prosecution’s evidence, assisting the court, whilst also balancing your client’s interests. The court is required to listen, read and watch all the evidence, ensure both sides of the case are being fair in accordance with the law, and ultimately determine whether the prosecution has proven its case beyond a reasonable doubt to find the accused guilty.
“Criminal defense lawyers are at the front line of protecting individual’s fundamental rights shared amongst all of us. If the right of a client has not been respected or complied with by police or hasn’t been upheld in court, then in effect the entire community is let down just as much as there will be a failure of the administration of justice and the confidence in the criminal justice system”, says Jimmy.
Jimmy also says that “a criminal defense lawyer is tasked with the role of also stopping unfair or unreliable evidence being used in court by police. Fundamentally, if unfair or unreliable evidence is used in court to prove a person’s guilt, we will end up living in a justice system whereby innocent people will be found guilty and imprisoned.”
“Criminal lawyers are therefore given the difficult task of ensuring police are held accountable for their actions and to stand against allowing the State to have unlimited power to punish”, he also added.
Let’s now turn to answer some common questions criminal lawyers get asked.
First and foremost, a criminal defense lawyer’s role is not to decide guilt or innocence, nor to judge a client. The court’s role is to do that.
Criminal lawyers are there to assist the court in discharging its role. This includes reminding the court about recent laws, relevant evidence in a case, objecting to unfair evidence attempted to be used by the prosecution, protecting fundamental rights shared by all, correcting any mistakes made by either party in court, pointing out critical pieces of evidence, and do all that without misleading the court.
This role can also be summarised by saying that a criminal defense lawyer is there to help the court achieve justice.
According to law, a guilty person has the same rights shared by all. After all, this is what justice is all about. This also prevents an innocent person from being convicted and imprisoned, which is a safeguard preferred over a guilty person getting away with it, so to speak.
This one is interesting and is one of the most commonly asked questions that criminal law firms in Sydney often have to deal with, namely, “how can you defend someone who you know is guilty?”.
If a client confesses guilt to a criminal allegation yet wants his/her defense lawyer to plead ‘not guilty’ and defend the allegations, there become limited options in how the defense lawyer can run the case for his/her client.
The defense lawyer may then take any one of the following limited options in running the case for the client:
In fact, in Australia, the above principle is reflected in rule 20.2 of the Solicitors’ Conduct Rules 2015.
Once guilt is proven or a client pleads guilty to a criminal offense, the court’s role is to allow each side, prosecution, and defense, to produce admissible evidence and be heard out of fairness. The court is then to decide on an appropriate penalty to impose on the offender, keeping in mind all the purposes of punishment.
If the prosecution in court is trying to use unfair or unreliable evidence against the defense lawyer’s client so that the Judge can impose a heavier sentence, then the defense lawyers’ role is to object. The reason a defense lawyer will object is that the same law that prevents unfair evidence from being used against people in court applies to everyone out of fairness in the interest of justice so that a fair sentence gets imposed. Everyone gets a fair go.
The defense lawyer’s role is to protect those rights shared by everyone in the community without discrimination. Everyone should be treated equally in the same circumstances.
By protecting those rights for a client who is guilty of a crime, however serious it is, a defense lawyer is ensuring everyone’s rights are protected. This is the fundamental role of a criminal defense lawyer.
In addition, the defense lawyers’ role for his/her client is also to tell the client’s side of the story to an extent. This means, to prepare the case in the best possible way so that the court can be given a complete picture of the client’s personal circumstances that may have contributed to the offending.
For example, generally, an offender who at the time was suffering a serious mental impairment, out of his/her control, at the time of the offense that contributed to the offending behavior should be punished less harshly than an offender who was not.
Therefore, if that offender can demonstrate a steady recovery process, the court may also be convinced that the client is unlikely to re-offend so that the community can be kept safe and the client can continue to recover. This can significantly reduce the sentence the court imposes if sufficient evidence is produced.
By doing this, a defense lawyer is not suggesting to the court that these points are excuses for the offense, rather, they are explanations for the offending behavior.
Knowing the contributing factors to the offense, helps a court determine an appropriate penalty on the sentence that not only punishes the offender but also promotes his/her rehabilitation in the interest of community safety to reduce the risk of re-offending.
Sending people to jail without considering these factors is more likely to increase the risk of re-offending, which increases the danger to the community when offenders are ultimately released from custody. This is recognized by the court over the years and was outlined in the case of R v Pullen  NSWCCA.
A defense lawyers’ role, therefore, includes looking into his/her client’s personal life and extracting all relevant information, and thinking about the best way that information can be produced as admissible evidence in court so that the sentencing Judge can fairly take it into account in the interest of justice.
If this is not done, or not done properly, the client will unfortunately not have these points taken into account by the court. This can result in an unfair heavier sentence penalty by the sentencing judge in court.
Ultimately, a defense lawyers’ role is to assist the court to come to a fair result. The laws are made for purposes of facilitating that interest of justice for all.
In Australia, before an accused person can be found guilty of a criminal offense, the prosecution must prove the offense beyond reasonable doubt (not on the basis that it is more likely than not he/she is guilty). In fact, if the police prove a case only to the standard that it is more likely than not the accused person is guilty, then the court must return a verdict of ‘not guilty.
Therefore, the accused person has the benefit of the doubt, in that, he/she is presumed innocent unless proven guilty otherwise by a court of law.
This approach is essentially premised on the fact that our criminal justice system is built on the basis that we rather a guilty person walks free than an innocent person convicted.
The law is created to try to secure as much fairness as is possible to achieve to avoid unfair convictions and prevent people’s liberty from being taken away. A criminal lawyer’s role is at the forefront of this battle to ensure that the law is upheld to protect those common rights we all share.