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isn't the entire premise of this article flawed? the feigned indignity at their clients lying...when it's pretty much required for them to receive any semblance

isn't the entire premise of this article flawed? the feigned indignity at their clients lying...when it's pretty much required for them to receive any semblance of effective defense: There is a kernel of an exception that is almost not worth mentioning. The Rules of Professional Conduct 3.3 obligates me with the duty of candor. I am not allowed to present evidence that I “know” is false, which encompasses witness testimony. Some jurisdictions make exceptions to this rule for defendants testifying in their criminal trial (correctly, IMO) but not all. So assuming that a client truthfully confesses to me, assuming we go to trial, assuming they decide to testify, and assuming I “know” they’re going to lie, then yes, this could indeed spawn a very awkward situation where I’m forced to withdraw in the middle of proceedings.

account-5 3y ago
I'm curious how a lawyer not being allowed to present as truth known falsehoods at trial is stopping an effective defense? Wouldn't the lawyer knowingly be committing perjury if they lied in court?
- bryanrasmussen 3y ago
  they said it also applies to defendants testifying, so if question is And then you shot her, correct?! Answer: No I did not shoot her! I never did that. And your lawyer knows it is a lie that you indeed did shoot her, it could be problematic at that point, depending on some jurisdiction. I guess it depends if you think an effective defense should allow the guilty to go free?
  - quickthrower2 3y ago
    Effective defence would allow the guilty to go free. (although “guilty” is a jury verdict so that is impossible but I presume you mean would be found guilty had more evidence prevailed). You can’t have an advocate that draws arbitrary lines at which they are not on your side advocating for you, what would those be? Say someone says to their lawyer they shot the person but really they are covering for their wife even to mthe lawyer. The lawyer then hears them say in court they didn’t shoot (the truth) but the lawyer just knows they are saying something different now to what they said before. It could be that.
    - mannykannot 3y ago
      > ...although “guilty” is a jury verdict so that is impossible but I presume you mean would be found guilty had more evidence prevailed. I'm not the author of the post referred to here, but I suspect that 'guilty' was intended to be read as 'actually committed the crime'. To be clear, I support the principle that it is the acquittal of a perpetrator is far less of a miscarriage of justice than is the conviction of someone other than the perpetrator.
    - bryanrasmussen 3y ago
      In this case I was using guilty in its common English usage, and not the specific American Jurisprudence usage.
      - quickthrower2 3y ago
        You must mean clear cut cases too then. Not self defence etc.
  - notahacker 3y ago
    I think the general principle is that defence lawyers aren't expected to contradict their clients' probably false testimony, and are perfectly entitled (encouraged, even) to deliver a "my client maintains the shot was fired by someone else, and nobody witnessed the shot" defence whilst being pretty convinced they fired the shot, but if they close with a series of factual claims about "Richie Bottoms" whilst knowing full well that name was made up on the spot by their client they could be in trouble. Doing their job properly means trying to persuade their client to stick to technicalities and avoid the "Richie Bottoms" defence because it'll fall apart, not patching the holes in it. But the fact we're debating how open defence lawyers are supposed to be and there is jurisdictional variation is a good indication of why criminals might feel they're best served lying to their defence lawyer, and lying as elaborately as possible rather than just avoiding confessing. The potential consequences of telling the truth are much worse than merely having your public defender think you're a fool. Plus if you're intending to test whether your denials are believable before you use them in court, you won't get a better opportunity than a privilege-protected conversation with someone who's seen a lot of excuses...
- __derek__ 3y ago
  That's not perjury. Trial attorneys are not under oath because that would conflict with their duty to advocate for their clients. Their duty not to lie to the court is a matter of professional ethics.
bryanrasmussen 3y ago
That's right, I'm pretty sure if you're rich enough you don't have to lie to your lawyer, they want to know exactly the truth in order to craft an effective defense. That said they also say here it depends on the jurisdiction so in some jurisdictions it won't matter that you know if your client is lying. hmm - potentially can you start a case in jurisdiction 1 where rules are a certain way and then get case moved to a different jurisdiction where it is different? Seems unlikely and probably not something competent lawyer would allow - but still...
RobinL 3y ago
In addition, I guess a public defender is likely to work harder in a case where they believe the client is innocent. This interpretation of 'eleven magic words' also suggests it matters: https://news.ycombinator.com/item?id=33471299 https://news.ycombinator.com/item?id=33471299
- MadnessASAP 3y ago
  His client in that case, by their own admission, was flagrantly guilty. What he was seeking and managed to receive was leniency.
eloisant 3y ago
That's only if your defense strategy is to lie in court. But once you're caught, and there is evidence, you're best strategy is to admit your guilt. Or if you really think you can lie your way to acquittal, then you can successfully convince your lawyer of your lie. If your lawyer can see through your bullshit as easily as the examples he gives, you're not going to fool the court.
avalys 3y ago
“Lying to the court” is not necessary for an effective defense, and defendants are not obligated to testify in the first place. Remember that perjury is also a crime and you’re not “allowed” to commit perjury just because you’re testifying in your own defense (which is your choice). If you’re actually guilty, your defense is supposed to challenge the validity of the evidence the prosecution is using to convict you. Not lie to the court and hope your lies are more convincing than the prosecution’s evidence.
- 93po 3y ago
  > If you’re actually guilty, your defense is supposed to challenge the validity of the evidence the prosecution is using to convict you. Not lie to the court and hope your lies are more convincing than the prosecution’s evidence. Ideally yes, but prosecution (and the entire process leading to arrest) lies and breaks the law and takes advantage in every way possible. It's a very dishonest process to try to be honest against.
  - skybrian 3y ago
    That’s often said, but this public defender seems to think otherwise and he’s certainly seen the inside a courtroom much more than I have. But he seems like an odd person [1] and I wonder what might be atypical about his experiences? It would be interesting to read the experiences of other public defenders. It’s their job to look for problems. [1] https://www.lesswrong.com/posts/4rsRuNaE4uJrnYeTQ/defunding-my-mistake https://www.lesswrong.com/posts/4rsRuNaE4uJrnYeTQ/defunding-...
    - 93po 3y ago
      Did you link the correct article? The author really says nothing about the legal system and is only reflecting that their 100% ACAB attitude maybe requires more nuance. This same author has written other pieces that plainly call the legal system an unfair joke (Eleven Words article specifically). Regardless of any public defender's opinion, I am inclined to not fully respect opinions of people who are deeply embedded in the thing they have an opinion about, especially if it's in defense of the thing they're deeply embedded in. Humans lose perspective very easily, and especially when their identity is wrapped up in it.
quickthrower2 3y ago
Not indignity but inconvenience. It would be like a boss lying to a software engineer about the requirements as they are scared it will cost too much then the wrong thing is built.
unyttigfjelltol 3y ago
When the judge or jury look over to the defendants' table, they need to find someone they can trust and believe. Sometimes, yes, from the outside the result seems binary, but it's a process that everyone ideally navigates with dignity that might involve multiple levels of culpability and end with a sentence that is highly discretionary. The attorney could give weak factual defense on one or more levels of culpability to preserve credibility and generate more positive outcomes in terms of the process, dignity, and sentence. Also, the attorney is going to see that judge and prosecutor again ....
tekla 3y ago
> when it's pretty much required for them to receive any semblance of effective defense: No its not, holy shit. Lying to your lawyer is a terrible idea. The lawyer is there to HELP YOU and present an effective defense. If you lie to the lawyer, the lawyer works with a different set of baseline arguments for your defense. If the lie is revealed, the defense is broken, it doesn't matter anymore. Months of work tossed out the window, nobody trusts the defendant anymore, and the lawyer needs to figure out damage control rather than actually defending you. Repeat. If anyone finds out you lied, you are FUCKED. Trust goes out the window, Judge thinks you're a unrepentant idiot, most possibility of leniency in the case you are considered guilty is dropped. It's literally one of the worst things you can do at trial.
- RuggedPineapple 3y ago
  To add to that, your lawyer is bound by both professional, enforceable ethical guidelines as well as legal doctrine from revealing anything you've said to them in the course of their representation of you without your express consent. The number of exceptions to that is tiny. The only one that really matters is crime/fraud which relates not to your crime but using a lawyer to commit a crime. The others are either after you're dead (probate exception, where your lawyer can disclose information for the purposes of helping settle your will after your death) or are exclusively about money (your lawyer can disclose details of your agreed upon contract and payment structure if they are having to fight you to be paid). There is zero reason to lie to your lawyer, all you do is make them less prepared in their defense.
plagiarist 3y ago
Defending a criminal is a completely separate thing to abetting a perjury.
FireBeyond 3y ago
I also believe that (at least in some states), this assertion is inaccurate: > 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. At least in Alabama (for no specific reason other than it was the first hit I found): > RULE 3.3: CANDOR TOWARDS THE TRIBUNAL > (a) A lawyer shall not knowingly: > (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client Seems to me that knowing that your client is materially guilty and an innocent person has been convicted for their crimes is "assisting a criminal or fraudulent act" by your client.
- deleted 3y ago
  [deleted]
- singleshot_ 3y ago
  You will find that the previous act establishing criminal liability is not the criminal or fraudulent act with which the attorney is barred from assisting.
  - FireBeyond 3y ago
    Hmm, interesting. And I know it's definitely an area I don't know. Although I didn't see any in those Rules that restricted the scope to the current matter in which the attorney is providing counsel.
carbonatedmilk 3y ago
This happens frequently in courts in my home country. There's even polite lawyer codewords so that you don't have to trudge in to court and say 'I'm sorry your honor, I have to withdraw from this matter because my client, who is a bit dim, has just told me at the lunch break that he totally did the thing, and also that he's going to lie his ass off about it when he gets up in the witness box in just a minute' But the next time you hear a lawyer withdraw because they're 'forensically embarrassed', you'll know what happened

account-5 3y ago

I'm curious how a lawyer not being allowed to present as truth known falsehoods at trial is stopping an effective defense? Wouldn't the lawyer knowingly be committing perjury if they lied in court?

bryanrasmussen 3y ago
they said it also applies to defendants testifying, so if question is And then you shot her, correct?! Answer: No I did not shoot her! I never did that. And your lawyer knows it is a lie that you indeed did shoot her, it could be problematic at that point, depending on some jurisdiction. I guess it depends if you think an effective defense should allow the guilty to go free?
- quickthrower2 3y ago
  Effective defence would allow the guilty to go free. (although “guilty” is a jury verdict so that is impossible but I presume you mean would be found guilty had more evidence prevailed). You can’t have an advocate that draws arbitrary lines at which they are not on your side advocating for you, what would those be? Say someone says to their lawyer they shot the person but really they are covering for their wife even to mthe lawyer. The lawyer then hears them say in court they didn’t shoot (the truth) but the lawyer just knows they are saying something different now to what they said before. It could be that.
  - mannykannot 3y ago
    > ...although “guilty” is a jury verdict so that is impossible but I presume you mean would be found guilty had more evidence prevailed. I'm not the author of the post referred to here, but I suspect that 'guilty' was intended to be read as 'actually committed the crime'. To be clear, I support the principle that it is the acquittal of a perpetrator is far less of a miscarriage of justice than is the conviction of someone other than the perpetrator.
  - bryanrasmussen 3y ago
    In this case I was using guilty in its common English usage, and not the specific American Jurisprudence usage.
    - quickthrower2 3y ago
      You must mean clear cut cases too then. Not self defence etc.
- notahacker 3y ago
  I think the general principle is that defence lawyers aren't expected to contradict their clients' probably false testimony, and are perfectly entitled (encouraged, even) to deliver a "my client maintains the shot was fired by someone else, and nobody witnessed the shot" defence whilst being pretty convinced they fired the shot, but if they close with a series of factual claims about "Richie Bottoms" whilst knowing full well that name was made up on the spot by their client they could be in trouble. Doing their job properly means trying to persuade their client to stick to technicalities and avoid the "Richie Bottoms" defence because it'll fall apart, not patching the holes in it. But the fact we're debating how open defence lawyers are supposed to be and there is jurisdictional variation is a good indication of why criminals might feel they're best served lying to their defence lawyer, and lying as elaborately as possible rather than just avoiding confessing. The potential consequences of telling the truth are much worse than merely having your public defender think you're a fool. Plus if you're intending to test whether your denials are believable before you use them in court, you won't get a better opportunity than a privilege-protected conversation with someone who's seen a lot of excuses...
__derek__ 3y ago
That's not perjury. Trial attorneys are not under oath because that would conflict with their duty to advocate for their clients. Their duty not to lie to the court is a matter of professional ethics.

bryanrasmussen 3y ago

That's right, I'm pretty sure if you're rich enough you don't have to lie to your lawyer, they want to know exactly the truth in order to craft an effective defense. That said they also say here it depends on the jurisdiction so in some jurisdictions it won't matter that you know if your client is lying. hmm - potentially can you start a case in jurisdiction 1 where rules are a certain way and then get case moved to a different jurisdiction where it is different? Seems unlikely and probably not something competent lawyer would allow - but still...

RobinL 3y ago

In addition, I guess a public defender is likely to work harder in a case where they believe the client is innocent. This interpretation of 'eleven magic words' also suggests it matters: https://news.ycombinator.com/item?id=33471299 https://news.ycombinator.com/item?id=33471299

MadnessASAP 3y ago
His client in that case, by their own admission, was flagrantly guilty. What he was seeking and managed to receive was leniency.

eloisant 3y ago

That's only if your defense strategy is to lie in court. But once you're caught, and there is evidence, you're best strategy is to admit your guilt. Or if you really think you can lie your way to acquittal, then you can successfully convince your lawyer of your lie. If your lawyer can see through your bullshit as easily as the examples he gives, you're not going to fool the court.

avalys 3y ago

“Lying to the court” is not necessary for an effective defense, and defendants are not obligated to testify in the first place. Remember that perjury is also a crime and you’re not “allowed” to commit perjury just because you’re testifying in your own defense (which is your choice). If you’re actually guilty, your defense is supposed to challenge the validity of the evidence the prosecution is using to convict you. Not lie to the court and hope your lies are more convincing than the prosecution’s evidence.

93po 3y ago
> If you’re actually guilty, your defense is supposed to challenge the validity of the evidence the prosecution is using to convict you. Not lie to the court and hope your lies are more convincing than the prosecution’s evidence. Ideally yes, but prosecution (and the entire process leading to arrest) lies and breaks the law and takes advantage in every way possible. It's a very dishonest process to try to be honest against.
- skybrian 3y ago
  That’s often said, but this public defender seems to think otherwise and he’s certainly seen the inside a courtroom much more than I have. But he seems like an odd person [1] and I wonder what might be atypical about his experiences? It would be interesting to read the experiences of other public defenders. It’s their job to look for problems. [1] https://www.lesswrong.com/posts/4rsRuNaE4uJrnYeTQ/defunding-my-mistake https://www.lesswrong.com/posts/4rsRuNaE4uJrnYeTQ/defunding-...
  - 93po 3y ago
    Did you link the correct article? The author really says nothing about the legal system and is only reflecting that their 100% ACAB attitude maybe requires more nuance. This same author has written other pieces that plainly call the legal system an unfair joke (Eleven Words article specifically). Regardless of any public defender's opinion, I am inclined to not fully respect opinions of people who are deeply embedded in the thing they have an opinion about, especially if it's in defense of the thing they're deeply embedded in. Humans lose perspective very easily, and especially when their identity is wrapped up in it.

quickthrower2 3y ago

Not indignity but inconvenience. It would be like a boss lying to a software engineer about the requirements as they are scared it will cost too much then the wrong thing is built.

unyttigfjelltol 3y ago

When the judge or jury look over to the defendants' table, they need to find someone they can trust and believe. Sometimes, yes, from the outside the result seems binary, but it's a process that everyone ideally navigates with dignity that might involve multiple levels of culpability and end with a sentence that is highly discretionary. The attorney could give weak factual defense on one or more levels of culpability to preserve credibility and generate more positive outcomes in terms of the process, dignity, and sentence. Also, the attorney is going to see that judge and prosecutor again ....

tekla 3y ago

> when it's pretty much required for them to receive any semblance of effective defense: No its not, holy shit. Lying to your lawyer is a terrible idea. The lawyer is there to HELP YOU and present an effective defense. If you lie to the lawyer, the lawyer works with a different set of baseline arguments for your defense. If the lie is revealed, the defense is broken, it doesn't matter anymore. Months of work tossed out the window, nobody trusts the defendant anymore, and the lawyer needs to figure out damage control rather than actually defending you. Repeat. If anyone finds out you lied, you are FUCKED. Trust goes out the window, Judge thinks you're a unrepentant idiot, most possibility of leniency in the case you are considered guilty is dropped. It's literally one of the worst things you can do at trial.

RuggedPineapple 3y ago
To add to that, your lawyer is bound by both professional, enforceable ethical guidelines as well as legal doctrine from revealing anything you've said to them in the course of their representation of you without your express consent. The number of exceptions to that is tiny. The only one that really matters is crime/fraud which relates not to your crime but using a lawyer to commit a crime. The others are either after you're dead (probate exception, where your lawyer can disclose information for the purposes of helping settle your will after your death) or are exclusively about money (your lawyer can disclose details of your agreed upon contract and payment structure if they are having to fight you to be paid). There is zero reason to lie to your lawyer, all you do is make them less prepared in their defense.

plagiarist 3y ago

Defending a criminal is a completely separate thing to abetting a perjury.

FireBeyond 3y ago

I also believe that (at least in some states), this assertion is inaccurate: > 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. At least in Alabama (for no specific reason other than it was the first hit I found): > RULE 3.3: CANDOR TOWARDS THE TRIBUNAL > (a) A lawyer shall not knowingly: > (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client Seems to me that knowing that your client is materially guilty and an innocent person has been convicted for their crimes is "assisting a criminal or fraudulent act" by your client.

deleted 3y ago
[deleted]
singleshot_ 3y ago
You will find that the previous act establishing criminal liability is not the criminal or fraudulent act with which the attorney is barred from assisting.
- FireBeyond 3y ago
  Hmm, interesting. And I know it's definitely an area I don't know. Although I didn't see any in those Rules that restricted the scope to the current matter in which the attorney is providing counsel.

carbonatedmilk 3y ago

This happens frequently in courts in my home country. There's even polite lawyer codewords so that you don't have to trudge in to court and say 'I'm sorry your honor, I have to withdraw from this matter because my client, who is a bit dim, has just told me at the lunch break that he totally did the thing, and also that he's going to lie his ass off about it when he gets up in the witness box in just a minute' But the next time you hear a lawyer withdraw because they're 'forensically embarrassed', you'll know what happened