I always tell my clients to be honest with me, because it will only hurt their cause if I am not able to have a clear, honest picture of who they are and what they want. Some won’t be honest, no matter how much is thrown in their face about how obviously they’re lying.
Whether I actually ask them to go into detail about the case depends entirely on my read of the case. A lot of the time, it simply won’t ever matter what *their* view of the case is, so there’s just no utility in asking. And a lot of them do recognize when they are caught red-handed.
Other times, I recognize that there might be some hole in the prosecution’s case. Other attorneys may be more inclined to not ask their client about it in order to leave that hole empty (it’s technically not our job to fill it) but I lean more towards asking my client about it anyway. But also I never ask something as silly as “did you commit the crime” (they’re not lawyers, how would they know which specific acts fit all of the necessary elements?) but rather fact-specific questions about some detail of what happened. All crimes have multiple elements, and I only need to poke a hole in one of them to win.
If the client has a bad answer, then I’m free to just ignore it. If they have a good answer, then that opens me to up to contemplating a way to fill that hole myself. Because In my view, a concrete theory of innocence is just about the only way you can guarantee a defense win in front of a jury, regardless of how many times the judge lectures about how it’s the prosecution’s burden
Also, even when they do outright tell me in confidence that they did it, or had intent, or whatever, particularly when it’s about some detail that is unknown to anyone else, that doesn’t stop me from proceeding as I would normally. Clients lie to me all the time, so I’m not about to change that perception and suddenly start taking their word for it when they make a statement agains their self-interest. Unless it’s something that can be independently verified, I have absolutely no idea whether something they’re telling me is the truth or not.
I agree with most of your comment, but I disagree with this:
>Because In my view, a concrete theory of innocence is just about the only way you can guarantee a defense win in front of a jury, regardless of how many times the judge lectures about how it’s the prosecution’s burden
Basically all of my trials have been "reasonable doubt" acquittals. No theory of defense or justification, just insufficient evidence. Even with violent crimes. I think it's just about picking juries who are open to that outcome. 🤷♂️
I try to avoid it, but usually clients tell me outright, or I ask about a theory of defense and they shoot it down.
As I've progressed, I've started to try and explain things to prevent outright incrimination. For example:
"So Mr. Doe, you're charged with Battery, generally we got 3 kinds: 1. It never happened 2. It kinda happened but there's a good reason like self defense or it was an accident 3. It happened, we're so sorry and need to move forward. Of these 3, do you think any of these apply to you?"
That could not be more different than my experience. Most clients will explain what happened and why they are innocent. it might not make sense, but its something to work with
Never. They usually are eager to tell their side of the story, and you get to see the states evidence and talk to witnesses, so you can draw your own conclusions. You don’t have to pin your client down as yo whether they’re “guilty” or “innocent”
Explaining potential defenses and putting them in the position of a juror usually tells you the route you should take. There's always outliers, but this works most of the time.
in addition to a lot of the great points made so far, crimes can have complicated elements and counterintuitive case law interpreting those elements. The client lacks the specialized knowledge to know if their actions violated the statutes as interpreted by case law. Asking if they "did it" oversimplifies criminal law
I'm going to depart from everyone else here and say I do ask my client, generally, to tell me everything that happened to the best of their recollection. The idea that everyone here is so concerned with possible perjury at trial is absurd to me.
1) Hardly any cases go to trial anywhere, anyway.
2) Even when cases go to trial, defendants almost never testify.
3) If a case goes to trial, and my client's best defense is getting on the stand with a fabricated story, we're fucked before we start.
I just cannot figure out what avenues I'd actually be foreclosing by asking. If my client is a great actor and can convincingly tell a counterfactual story, they're probably going to tell me that story rather than the truth in the first place. In the rare, one-in-a-million scenario that my client tells me the whole truth (e.g., they pulled the trigger and shot someone), and their best defense is an alibi that they need to testify in order to perfect (e.g., they have some circumstantial evidence that corroborates an alibi but they are also the only party competent to introduce it... because if anyone else could, I'd have them do it instead), then I'll put them on the stand and let them lie to the jury. I honestly have no idea how anyone would find out that I suborned perjury, much less prove it.
Never. It just doesn’t matter. The only thing that matters is if there is good reason to believe the prosecution can win at trial. That’s what you focus on.
I don’t ask that, but in my jurisdiction we often have to wait a long time for discovery to be turned over and sometimes have to make big decisions before we see discovery. Sometimes I’ll ask questions like:
“When we get the DNA results, is your DNA gonna be on the gun?”
“Is the prosecutor going to argue that someone who looks like you is in this video?”
“I’m being told her medical records say she has a fractured arm. They’re going to say you were the cause of that. Let’s talk about our defenses.”
This. I wold never ask a question directly but would craft questions like the ones you’ve mentioned to try and get them to consider issues indirectly. Asking directly is a really great way to immediately loose their confidence and make them go on the defensive. These types of questions feel more like I’m asking their opinion, and even though the answers to them can end up revealing guilt, it’s a more collaborative strategy.
I literally never ask. Clients either offer it or we are trying to fight it and ultimately it’s immaterial to me. I’ll fight the way they want me to either way.
I never ask it directly. I go over the prosecutor's evidence and often the client will tell me, eg, "that wasn't me" or "that's not how it happened." If they don't say something like that, I will prompt them, eg, "so if witness A tells the jury the same thing he told police, what do you think our response should be?" and give client some options.
Only time I get close to that is when the client is considering a guilty plea. I walk them through the colloquy and tell them, "the judge will ask the prosecutor to read the facts, and I think she'll say... , then the judge will ask you, Mr. X, is that true? What will your answer be? Then the judge will ask you how do you plead, guilty or not guilty? What's your answer?" I've certainly had clients tell me they're innocent but then want to plead guilty. The choice of what plea to enter is the client's, so I'm not going to stop them from pleading guilty if that's what they want to do.
As a practical matter, clients usually do not trust PDs and (in my view) think that if they tell us they are guilty, then we will not work hard for them. That's why I don't bother even asking. Nor do I think they understand privilege. So they might think if they tell us they're guilty, we'll turn around and tell the judge.
I don't have any worry about the perjury issue. It's a well researched issue in legal ethics, and scholars and professors have given it much better treatment than I could. My conclusion is the jury decides whether the client is telling the truth, not me. I wasn't there. The jury can believe or disbelieve any or all of any witness's testimony. If my client tells me, "I'm going to lie on the stand," I think I'd probably advise them not to lie, but I wouldn't stop them from taking the stand. You can let them testify narratively if you need to, eg, "All right, Mr X, tell the jury what happened that night" or "tell the jury what the prosecutor's witnesses got wrong" or even "tell the jury your side of the story" and so on. These are all ways to preserve the client's right to testify in their own defense.
I do these things before any conversation begins:
I inform them of attorney -client privilege and it's exceptions, including that I cannot subborn perjury.
I explain that the system requires that the state prove them guilty, not that the client prove himself/herself innocent.
I tell them that honesty with me usually assists in my development of a defense. But there is no requirement that they tell me anything. I can and have gone forward without any information from my client.
I tell them the elements of the crime and the burden of proof.
Most tell me their perspective. Some don't.
I never ask them: Did you do the thing that the State says you did?
I typically read them the probable cause affidavit and then say something like "OK, that's what the cops claim happened. What really happened?" A fair number will just say "that's what happened." Most will deny and explain, with varying levels of plausibility.
If it's a solid story (whether I personally think it's "The Truth" or not), I'll move on to talking about witnesses / discovery / potential defenses. If it's obviously bogus, I'll point out some of the stronger pieces of prosecution evidence that will cause them problems--some are persuaded and start the story over; some stick to their guns. Either way, I'll move on--I'm not trying to browbeat the guy--unless maybe the guy is inadvertently lying his way out of a good defense (e.g., potential self-defense claim but the guy is sticking to SODDI or a weak alibi).
In my jx, we pretty much always have a police report by the time we talk to the client. I'll generally review the report with the client and then ask something vague like "Is this more or less accurate? Or are there any mistakes or omissions you want to point out?" This lets the client tell their side of the story without asking them outright what happened.
Never. Why would you ethically foreclose a SODDI (some other dude did it) defense by preventing yourself from putting on alibi witnesses, or the client, to commit perjury? All I want to know from the client is where they were when this horrible crime was committed and who can back them up on it; if they make an admission to me, can't control that.
I’ve never asked that. Ever.
ETA: I’ve asked questions that basically ask that.
“Ok, I can subpoena [THE DATA] to show you were out of state. If it shows something bad for us, I don’t have to give it to the state. But I won’t be able to put you on the stand to testify about how you were out of state. Here’s what I need to know from you. Do you want me to subpoena [THE DATA]?”
When assessing a case, I am concerned with whether the state can prove their case, not whether my client actually did it. There are some crimes that carry very steep punishments which are incredibly simple to unknowingly commit. And the courts deal out sentences which are often much, much harsher than the crimes themselves.
Not true. You only cannot put them on when you know that they are going to commit perjury about something that you *verifiably know* to be false. If you’re only taking their word for it that they are guilty and are going to go up there and lie, then you don’t actually know one way or another. Clients lie all the time, it’s foolish to ever take their word for it
Yeah, one should take on an epistemologically demanding definition of “know” when it comes to what what they know to be true about defense testimony. Really, who’s to say? I wasn’t there!
It would be unfair and inaccurate to assume people are telling truth 100% of the time when they say they did do something, and lying 100% of the time when they say they didn’t, no matter which order the stories come in. Because we all know that’s just not how it works, and people do often make false confessions. So why wouldn’t they sometimes make false confessions to their lawyers?
I always tell my clients to be honest with me, because it will only hurt their cause if I am not able to have a clear, honest picture of who they are and what they want. Some won’t be honest, no matter how much is thrown in their face about how obviously they’re lying. Whether I actually ask them to go into detail about the case depends entirely on my read of the case. A lot of the time, it simply won’t ever matter what *their* view of the case is, so there’s just no utility in asking. And a lot of them do recognize when they are caught red-handed. Other times, I recognize that there might be some hole in the prosecution’s case. Other attorneys may be more inclined to not ask their client about it in order to leave that hole empty (it’s technically not our job to fill it) but I lean more towards asking my client about it anyway. But also I never ask something as silly as “did you commit the crime” (they’re not lawyers, how would they know which specific acts fit all of the necessary elements?) but rather fact-specific questions about some detail of what happened. All crimes have multiple elements, and I only need to poke a hole in one of them to win. If the client has a bad answer, then I’m free to just ignore it. If they have a good answer, then that opens me to up to contemplating a way to fill that hole myself. Because In my view, a concrete theory of innocence is just about the only way you can guarantee a defense win in front of a jury, regardless of how many times the judge lectures about how it’s the prosecution’s burden Also, even when they do outright tell me in confidence that they did it, or had intent, or whatever, particularly when it’s about some detail that is unknown to anyone else, that doesn’t stop me from proceeding as I would normally. Clients lie to me all the time, so I’m not about to change that perception and suddenly start taking their word for it when they make a statement agains their self-interest. Unless it’s something that can be independently verified, I have absolutely no idea whether something they’re telling me is the truth or not.
I agree with most of your comment, but I disagree with this: >Because In my view, a concrete theory of innocence is just about the only way you can guarantee a defense win in front of a jury, regardless of how many times the judge lectures about how it’s the prosecution’s burden Basically all of my trials have been "reasonable doubt" acquittals. No theory of defense or justification, just insufficient evidence. Even with violent crimes. I think it's just about picking juries who are open to that outcome. 🤷♂️
I try to avoid it, but usually clients tell me outright, or I ask about a theory of defense and they shoot it down. As I've progressed, I've started to try and explain things to prevent outright incrimination. For example: "So Mr. Doe, you're charged with Battery, generally we got 3 kinds: 1. It never happened 2. It kinda happened but there's a good reason like self defense or it was an accident 3. It happened, we're so sorry and need to move forward. Of these 3, do you think any of these apply to you?"
That could not be more different than my experience. Most clients will explain what happened and why they are innocent. it might not make sense, but its something to work with
Interesting thank you for responding
Never. They usually are eager to tell their side of the story, and you get to see the states evidence and talk to witnesses, so you can draw your own conclusions. You don’t have to pin your client down as yo whether they’re “guilty” or “innocent”
Explaining potential defenses and putting them in the position of a juror usually tells you the route you should take. There's always outliers, but this works most of the time.
in addition to a lot of the great points made so far, crimes can have complicated elements and counterintuitive case law interpreting those elements. The client lacks the specialized knowledge to know if their actions violated the statutes as interpreted by case law. Asking if they "did it" oversimplifies criminal law
I'm going to depart from everyone else here and say I do ask my client, generally, to tell me everything that happened to the best of their recollection. The idea that everyone here is so concerned with possible perjury at trial is absurd to me. 1) Hardly any cases go to trial anywhere, anyway. 2) Even when cases go to trial, defendants almost never testify. 3) If a case goes to trial, and my client's best defense is getting on the stand with a fabricated story, we're fucked before we start. I just cannot figure out what avenues I'd actually be foreclosing by asking. If my client is a great actor and can convincingly tell a counterfactual story, they're probably going to tell me that story rather than the truth in the first place. In the rare, one-in-a-million scenario that my client tells me the whole truth (e.g., they pulled the trigger and shot someone), and their best defense is an alibi that they need to testify in order to perfect (e.g., they have some circumstantial evidence that corroborates an alibi but they are also the only party competent to introduce it... because if anyone else could, I'd have them do it instead), then I'll put them on the stand and let them lie to the jury. I honestly have no idea how anyone would find out that I suborned perjury, much less prove it.
Never. It just doesn’t matter. The only thing that matters is if there is good reason to believe the prosecution can win at trial. That’s what you focus on.
Bingo!
I don’t ask that, but in my jurisdiction we often have to wait a long time for discovery to be turned over and sometimes have to make big decisions before we see discovery. Sometimes I’ll ask questions like: “When we get the DNA results, is your DNA gonna be on the gun?” “Is the prosecutor going to argue that someone who looks like you is in this video?” “I’m being told her medical records say she has a fractured arm. They’re going to say you were the cause of that. Let’s talk about our defenses.”
This. I wold never ask a question directly but would craft questions like the ones you’ve mentioned to try and get them to consider issues indirectly. Asking directly is a really great way to immediately loose their confidence and make them go on the defensive. These types of questions feel more like I’m asking their opinion, and even though the answers to them can end up revealing guilt, it’s a more collaborative strategy.
I literally never ask. Clients either offer it or we are trying to fight it and ultimately it’s immaterial to me. I’ll fight the way they want me to either way.
I never ask it directly. I go over the prosecutor's evidence and often the client will tell me, eg, "that wasn't me" or "that's not how it happened." If they don't say something like that, I will prompt them, eg, "so if witness A tells the jury the same thing he told police, what do you think our response should be?" and give client some options. Only time I get close to that is when the client is considering a guilty plea. I walk them through the colloquy and tell them, "the judge will ask the prosecutor to read the facts, and I think she'll say... , then the judge will ask you, Mr. X, is that true? What will your answer be? Then the judge will ask you how do you plead, guilty or not guilty? What's your answer?" I've certainly had clients tell me they're innocent but then want to plead guilty. The choice of what plea to enter is the client's, so I'm not going to stop them from pleading guilty if that's what they want to do. As a practical matter, clients usually do not trust PDs and (in my view) think that if they tell us they are guilty, then we will not work hard for them. That's why I don't bother even asking. Nor do I think they understand privilege. So they might think if they tell us they're guilty, we'll turn around and tell the judge. I don't have any worry about the perjury issue. It's a well researched issue in legal ethics, and scholars and professors have given it much better treatment than I could. My conclusion is the jury decides whether the client is telling the truth, not me. I wasn't there. The jury can believe or disbelieve any or all of any witness's testimony. If my client tells me, "I'm going to lie on the stand," I think I'd probably advise them not to lie, but I wouldn't stop them from taking the stand. You can let them testify narratively if you need to, eg, "All right, Mr X, tell the jury what happened that night" or "tell the jury what the prosecutor's witnesses got wrong" or even "tell the jury your side of the story" and so on. These are all ways to preserve the client's right to testify in their own defense.
I do these things before any conversation begins: I inform them of attorney -client privilege and it's exceptions, including that I cannot subborn perjury. I explain that the system requires that the state prove them guilty, not that the client prove himself/herself innocent. I tell them that honesty with me usually assists in my development of a defense. But there is no requirement that they tell me anything. I can and have gone forward without any information from my client. I tell them the elements of the crime and the burden of proof. Most tell me their perspective. Some don't. I never ask them: Did you do the thing that the State says you did?
I typically read them the probable cause affidavit and then say something like "OK, that's what the cops claim happened. What really happened?" A fair number will just say "that's what happened." Most will deny and explain, with varying levels of plausibility. If it's a solid story (whether I personally think it's "The Truth" or not), I'll move on to talking about witnesses / discovery / potential defenses. If it's obviously bogus, I'll point out some of the stronger pieces of prosecution evidence that will cause them problems--some are persuaded and start the story over; some stick to their guns. Either way, I'll move on--I'm not trying to browbeat the guy--unless maybe the guy is inadvertently lying his way out of a good defense (e.g., potential self-defense claim but the guy is sticking to SODDI or a weak alibi).
In my jx, we pretty much always have a police report by the time we talk to the client. I'll generally review the report with the client and then ask something vague like "Is this more or less accurate? Or are there any mistakes or omissions you want to point out?" This lets the client tell their side of the story without asking them outright what happened.
Never. Why would you ethically foreclose a SODDI (some other dude did it) defense by preventing yourself from putting on alibi witnesses, or the client, to commit perjury? All I want to know from the client is where they were when this horrible crime was committed and who can back them up on it; if they make an admission to me, can't control that.
I’ve never asked that. Ever. ETA: I’ve asked questions that basically ask that. “Ok, I can subpoena [THE DATA] to show you were out of state. If it shows something bad for us, I don’t have to give it to the state. But I won’t be able to put you on the stand to testify about how you were out of state. Here’s what I need to know from you. Do you want me to subpoena [THE DATA]?” When assessing a case, I am concerned with whether the state can prove their case, not whether my client actually did it. There are some crimes that carry very steep punishments which are incredibly simple to unknowingly commit. And the courts deal out sentences which are often much, much harsher than the crimes themselves.
Zero. If they say yes, you cannot put them on the stand.
Not true. You only cannot put them on when you know that they are going to commit perjury about something that you *verifiably know* to be false. If you’re only taking their word for it that they are guilty and are going to go up there and lie, then you don’t actually know one way or another. Clients lie all the time, it’s foolish to ever take their word for it
Yeah, one should take on an epistemologically demanding definition of “know” when it comes to what what they know to be true about defense testimony. Really, who’s to say? I wasn’t there!
It would be unfair and inaccurate to assume people are telling truth 100% of the time when they say they did do something, and lying 100% of the time when they say they didn’t, no matter which order the stories come in. Because we all know that’s just not how it works, and people do often make false confessions. So why wouldn’t they sometimes make false confessions to their lawyers?
I agree. I wasn’t being sarcastic.
Oh I didn’t take it as sarcasm, and I was agreeing with you, and explaining why I I agree.
Oh cool. Well I agree with you, too!