Legal Eagle

You're confusing 'cannot put someone on the stand to commit perjury' [note, even this is not absolute as "In some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements."—https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/comment_on_rule_3_3/] with 'cannot defend someone'. Now, if they know the person is actually guilty, they can't stand up and say 'my client is innocent,' but they can stand up and say 'the prosecution has not proved my client's guilt.'

Essentially, a lawyer cannot intentionally lie to the court. But Exact Words are in play.

It is however also generally a good idea to get a new lawyer if you've informed your lawyer you did commit the offence but still want to plead not-guilty. For obvious reasons. For the best possible defense, you need a lawyer who isn't stuck arguing that the prosecution hasn't made a strong enough case. You want a lawyer who can also try to argue that you are actually innocent.

Edited by M84 on Apr 29th 2024 at 11:05:37 PM

Yes and no? I mean, there's reasons that lawyers aren't supposed to vouch for their clients either and that the prosecution has the burden of proving guilt. The defense can (theoretically, the reality is more complicated) simply stand by 'didn't prove it,' without having to address at all the question of what did happen. And 'didn't prove it' can be entirely true, regardless of actual guilt or innocence.

That's technically Exact Words, but not in the deceptive manner that trope is usually used for.

But more broadly, it might be better to have a lawyer who believed in your innocence. Or not. But your ability to get such a thing (especially if you're relying on court appointed lawyers and your first one figured it out) may be very low. And that's without getting into all the many, many, many difficulties/risks of switching lawyers.

Edited by ECD on Apr 29th 2024 at 8:07:08 AM

It's more that relying entirely on "didn't prove it" is ham-stringing your own case. You really want a defense that can also argue that you didn't do it at all.

Maybe, depends on the other circumstances. All else being equal, yes, you'd probably prefer an attorney who believed you were innocent, but all else isn't going to be equal.

But note, this position is not universal, see e.g. https://law.temple.edu/aer/2020/11/18/innocent-or-cant-br-sure-what-happened-scott-turow-and-the-closing-argument/, section on David Ball and also of note is the follow up section stating:

Edited by ECD on Apr 29th 2024 at 8:19:02 AM

Tying back to the O.J. case, it's entirely possible Cochran didn't believe O.J. was guilty. Or at least, he was more focused on taking the LAPD down a peg since he — rightly — figured that was the best strategy to get O.J. found not guilty.

Yeah. An attorney can highlight weaknesses in the case, call into question the credibility of witnesses, show ulterior motives for the prosecution, challenge the legal theory, and so on. The goal is not innocence but reasonable doubt. At the absolute minimum you need to convince a single juror to hold out for a not-guilty verdict.

You pay the big money for the big attorneys for a reason: they will go out of their way to find those loopholes. A public defender, sadly, often has mere hours to prepare for a case and is highly incentivized to plea them out on the theory that a deal is better than a guilty verdict.

Going back to my jury duty experience: the PD made a sympathy play for the defendant. He's not a danger to anyone, he was off his meds, etc. Somehow, it never occurred to him to discredit the physical evidence of the crime — namely the 911 tape. To this day I still marvel at that.

Edited by Fighteer on Apr 29th 2024 at 11:23:55 AM

So this is going to sound extremely nitpicky, but it matters. The question isn't what Cochrane believed it's what he knew. An attorney can't offer evidence they know to be false. And they "may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false." Emphasis added.

May is permissive, not mandatory. As the comment notes: "Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate."

And note: "Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood."

Note, these are from the comment to rule 3.3 of the ABA model rules, not the California RP Cs.

Edited by ECD on Apr 29th 2024 at 8:25:40 AM

That said, criminal attorneys generally don't outright ask if their clients are guilty anyway. Instead, they'll ask questions like what happened to get the client in the current situation, what they said to the police upon questioning, etc.

Indeed. Though, I think my favorite discussion of related issues is over at Yassine Meskhout's substack:

"You might wonder why any chicanery from my clients is warranted. After all, am I not professionally obligated to strictly maintain client confidentiality? It’s true, a client can show me where they buried their dozen murder victims and I wouldn’t be allowed to tell a soul, even if an innocent person is sitting in prison for their crimes. Part of my clients’ clammed-up demeanors rests on a deluded notion that I won’t fight as hard for their cases unless I am infatuated by their innocence. Perhaps they don’t realize that representing the guilty is the overwhelmingly banal reality of my job. More importantly, it’s myopic to forget that judges, prosecutors, and jurors want to see proof, not just emphatic assurances on the matter.

But clients still lie to me — exclusively to their own detriment." https://ymeskhout.substack.com/cp/142335103

Edited by ECD on Apr 29th 2024 at 8:35:15 AM

You basically want your lawyer to have enough info to give the best defense without having to actually lie to the court. And a good lawyer will ask just the right questions to get that info from you.

Edited by M84 on Apr 29th 2024 at 11:48:11 PM

If a defense attorney presents false evidence that he knows is false, he will be at best disbarred.

If a defense attorney tries to discredit the prosecution's evidence that he knows is true, he's at worst going to get objected.

You'd be surprised. This isn't Ace Attorney. The bar for disbarment (Pun intended), is surprisingly high, and generally requires a pattern of repetition and just ignoring consequences. The people handing out disbarments are themselves law people, who know what it takes to enter the profession, and are loathe to kick people out when other punishments exist and the opportunity to resolve the issue exists by handing out such punishment as a corrective. And apologizing to the court at the first opportunity goes a long way. This isn't to say that you can't get suspended (To say nothing of the consequences and possible mistrial you may cause on top of that).

Also proving that someone "knows" a thing is hard, vs "Ought to have known" or "didn't do their due dilligence". The late two is incompetence, which is different.

See for example the recent case with Lawyers who presented cases that were generated by AI were blatantly false on even a cursory reading.

Edited by Ghilz on Apr 29th 2024 at 12:27:46 PM

Also didn't he say that at the end of the day, the lawyers themselves are amicable to each other despite being on opposing sides?

Generally yes, because you have to work with the other people so making enemies out of them doesn't help anyone.

It is fairly common for prosecutors to go into private practice later in their careers, and you don't want to burn those bridges before getting there.

Generally, yes, just as for politicians, though obviously sometimes people will just plain hate each other regardless.

The Stormy Daniels Trump trial so far. Or rather the breakdown of Trump's multiple contempt of court.

Devin is discussing the Tik Tok ban this week. I don't think he's buying the zero-evidence security threat reasoning.

The whole Tik Tok thing is interesting to me because there are a whole bunch of problems with it, but I'm not sure how much it's worse than any other social media. I am interested in seeing the analysis.

Of course, all social media has horrific privacy violations and something should really be done about that, so if the bans were the first step in fixing that, people wouldn't be complaining. But so far, it seems like the government is saying "we don't care who is spying on you, so long as they're not Chinese."

Devin makes it clear other social media companies are doing much worse than this, and Tik Tok has a rather good case for being singled out in the midst of anti-Chinese sentiment.

He also notes that the US will probably get its way anyway on grounds of "national security". The US has a bit of a history of getting away with all sorts of questionable things in the name of "national security threats".

Yeah, national security concerns would be trump the whole privacy concerns.

The initial hearings showed that Bytedance needs approval from the Chinese government to do business, Bytedance saying it would rather lose the US market over handing its algorithm and how interlinked the Chinese government and their business are, having security concerns isn't unfounded.

Given that Tik Tok has direct access to your location, access to your file and their name list, your camera with features to gather facial features and your surroundings, on top of accessing your microphone and camera unnoticed. On top of TikTok adding layers of encryption on data that already has encryption on its protocol and highly vulnerable app permissions.

Then there are the issues of TikTok servers in Singapore and the own app sending data directly to its servers in China. Blurring what and how much data it gathers and to where it is sent. There isn't anything stopping the data sent to Tik Tok's US and Singapore servers being sent to China either.

Then there is concern Bytedance using TikTok to track journalists Twice.

With the history of China using their companies to pull mass surveillance schemes other countries, US included and inside China doesn't inspire confidence in no one.

Personally I wouldn't trust anything that comes from Mainland China specially since there is barely any distinction between Chinese business and the CCP goals. But the US congress needs to build a better case and reining in Social Media both US and foreign should be a priority.

That is all true, but as Devin notes, if the US really cared so much about user privacy, it should write better data protection legislation to curtail the bad behaviour from its own national businesses.

The US may be right, but it is a very self-serving sort of right.

On the plus side, maybe if the US bans Tik Tok, privacy advocates can use the legal precedent to lobby for other gains elsewhere. Because, again, all social media is a horrific privacy violation, including Tik Tok, so I'm not going to complain about it getting curtailed even if it's for bad reasons.

It's not being curtailed, it's being banned outright.