The Defense Lawyer: Understanding What A Defense Counsel’s True Role Is
Part 2
Law enforcement officers are obligated to convict the guilty and to ensure the innocent are not convicted. They must be committed to ensuring the criminal trial is a procedure for ascertaining the true facts that surround a crime being committed. To this extent, our “adversary” system isn’t at all adversary; and it should not be. However, the defense counsel does not have any comparable obligation for presenting or ascertaining the truth. A different mission is assigned to him by our system.
Page 388 U. S. 257
He must want to prevent the innocent from being convicted but even without a voluntary guilty plea, we insist as well that he defend the client whether the person is guilty or innocent. The State is obligated to present evidence. Nothing needs to be presented by the defense counsel, even if does know the truth. He is not required to reveal his client’s confidences, provide the police with witnesses, or supply any other information that assists the prosecution’s case. If he is able to confuse a witness, including a truthful one, or make the person appear to be at a disadvantage, decisive or unsure, that is the normal course.
Page 388 U. S. 258
Our interest to not convict the innocent allows counsel to place the State at its proof, to put the case of the State in the worst light possible, no matter what he knows or thinks is the truth. There are limits, undoubtedly, which defense counsel needs to observe, but, more frequently than not, the defense counsel cross-examines a prosecution witness, and if possible, impeach him, even if he believes the witness is being truthful, just as he will try to destroy a witness who he believes is lying. In that respect, this is part of the modified adversary system that we have and as part of the duty that is imposed on our most honorable defense counsel, we require conduct that, in many situations, has no or little, relation to searching for the truth.
A. It Is As Important To Consider Collateral Consequences As Statutory Punishments
Ideally, all of the previously mentioned participants should not hold out for either side to win, but instead for the justice system to win. In terms of the prosecutor, that would mean cases being dismissed in the interest of justice even in a case where the defendant was guilty. That also means a guilty party will not be over-punished. That would include consideration of any collateral consequences by the prosecution that would result from the prosecution. In this case, it is the defense attorney’s job to ensure that the prosecutor is aware of those collateral consequences.
B. Reality Or Common Sense Cannot Be Replaced By Policy
Clearly, from the perspective of the prosecutor, when everyone is treated the same, it results in many people being treated unfairly in numerous cases. For example, a $10,000 fine being assessed on a blue-collar worker and a billionaire does not result in the same justice being achieved. It will not mean anything to the billionaire, and for the blue-collar worker, it may mean the difference between a parent being able to pay for their child’s college education or not. Another example is a DWI suspension of a person’s driver’s license for 6 months for a non-commercial driver who works as a computer programmer versus a commercial airline pilot who also would suffer from his pilot’s license being suspended even though the DWI does not relate to flying.
Unfortunately, the concept of treating everybody the same is misunderstood by most prosecutors who believe that getting a conviction is more important than achieving true justice. Therefore, the role of the defense attorney is to point out the injustice that comes with the policy of treating everyone the same and to remember what Thomas Jefferson said about experience showing that even under the best types of government that those who are entrusted with power, by slow operations, and in time, pervert this into tyranny.
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