Answering one of those most popular questions posed to criminal lawyers – “How can you defend a criminal whom you think is guilty ah?” – without referring to any case law!
The standard archetypical question posed to me by lay persons once they discover my dabblings with criminal law are:
How cans you defending criminal when chew know he do it already? Aren’t chew helping him gets away with its? Don’t chew feel bad or guilty for helping him escapes the law, you pompous sounding wanker?
Allow me to address these questions in as simple terms as I am able to once and for all, if not for others, then for myself at least!
In order to understand a criminal lawyer’s ethical and moral outlook in defending any person accused of a crime, there are two preliminaries that have to be clarified, explained and understood.
The first thing that requires clarification is terminology. Descriptions are important and necessary because they categorize a person in his relation to society. To be categorized wrongly is potentially defamatory as I shall demonstrate shortly.
It is important to recognize that a person charged for a crime is not a ‘criminal’ because he has not been convicted of his crime. To merely charge someone for a crime is to merely ‘accuse’ them of something. At that stage no evidence has been led to prove his crime. So someone who has been charged for a crime is properly referred to as ‘an accused’.
Only after evidence, the court makes a finding of guilt, then an accused can be properly referred to as ‘a convict’ or a ‘criminal’. This is because of one of the cardinal principles of criminal law – a person is innocent until proven guilty beyond a reasonable doubt (see section 173(m) and 182A(2) of the Criminal Procedure Code).
Whoever refers to an accused as a ‘convict’ or a ‘criminal’ is vulnerable to liability in defamation if the accused is acquitted at the end of his trial because that description of him is wrong and defamatory in law.
The second is the history and development of criminal law. I shall deal with this as briefly and generally as possible. The enforcement of law in the past used to be the sole prerogative of a Ruler (back then it was the King or Queen) simply because the law was whatever the Ruler said it was. This was the Rule of Whim. Modern constitutional developments have diluted and divided the Ruler’s power into the Rule of Law, which comprises of 3 branches of government.
These are the Legislature (power to make law), the Executive (power to enforce the law) and the Judiciary (power to regulate and interpret the law and ensuring that the Legislature and Executive actions are constitutional). These branches of government are supposed to act as a check and balance against each other.
If the Legislature enacts law that infringes the Federal Constitution, the Judiciary can strike that law down. If the Executive does something ultra vires (exceeding) the law, then the Judiciary can declare that action void. If judges are corrupt, the Executive can charge and prosecute them. If the Judiciary made a series of poor decisions in an area of law, the Legislature can enact law to overrule those decisions. This awesome power of the Ruler was diluted and divided to avoid tyranny in the form of authoritarianism or totalitarianism.
The Rule of Law demands the process of law be fair, equal, accountable and transparent as compared to the Rule of Whim, which is whatever the Ruler says it is. How that demand translates at the operational level of a criminal trial goes simply like this.
Firstly, an impartial and honest judge must hear all the relevant evidence before he decides on the guilt of an accused. Secondly, the prosecution must bring evidence to prove the crime against an accused. Thirdly, an accused has the right to sufficient time to prepare his case, to hear the evidence against him, challenge it (either factually or legally), and have someone familiar with the law defend him before an impartial judge.
All these fundamental attributes must exist in reality before a fair trial can be said to have taken place. If any of these attributes are not in existence, the trial will inevitably be unfair.
A short demonstration will suffice. If the judge is biased and does not hear the evidence from both sides before making his decision, he can convict an accused after just hearing from the prosecution. If the prosecution does not have to bring any evidence to prove its case to secure a conviction then an accused charged can be immediately convicted without an opportunity to challenge the prosecution’s decision. He will also not know why the prosecution charged him for such a crime. This is illustrated eloquently in the most claustrophobic terms by Franz Kafka’s famous novel, The Trial.
It is obvious if an accused is not given any right to prepare his case, challenge the evidence or to a competent counsel, he would be at a fatal disadvantage when compared to the prosecution, who has the entire resources and machinery of the State to prosecute the case against an accused. The playing field would not be equal.
With terminology clarified and the development of our modern criminal trial understood, we are now in a better position to understand why lawyers defend, or more accurately, are under a duty to defend any person accused of a crime, regardless of their personal thoughts or feelings and moral orientation.
The Rule of Law makes it the incumbent duty of a lawyer to defend any person accused of any crime because in defending an accused person, that lawyer is also sustaining the very system of a fair trial. That incumbent duty also lies with a judge but it is expressed differently because of the nature of his task. The judge must ensure a fair trial and decide honestly. Finally, the duty lies with the prosecutor to prosecute the accused fairly and truthfully. All three must be faithful to their duties simultaneously if the trial is to remain a fair one. If this is occurs at every trial then the system of a fair trial is maintained. If it is lacking then the system of a fair trial breaks down. You only need one unfair trial to potentially create a systemic breakdown of the entire system and process of a fair trial. You cannot say we have a system of fair trial but not, for example, for cases of sodomy involving the opposition politician. You either have a system of fair trial or you do not. It is not a question of percentage.
When this is understood, it is more easily and clearly seen that defending an accused person is not simply about his innocence or guilt. It is actually about sustaining, maintaining and defending the system of a fair trial. This is why for a criminal lawyer, whether their client actually committed the crime or not, or how they feel about his innocence or guilt, is irrelevant in the larger scheme of things. It is also not their responsibility. Theirs is limited to merely testing whether the prosecution’s evidence is relevant and true, and ensuring that the judge is fair. It is the judge’s duty to decide the innocence or guilt of the accused.
That single act of defending in one case is merely part of the criminal lawyer’s wider expression and in his collective series of actions in the larger scheme of Justice. With each case a lawyer defends, he reinforces that ideal and system of a fair trial. If a lawyer did not take up a case simply because he thinks the accused is guilty and many think the same, who will finally defend that system and ideal of a fair trial when the judge and the prosecutor have betrayed their duties? If there were no lawyer to test the prosecution’s evidence and the law is such that if presented evidence is not challenged it will be deemed admitted by the accused, this would lead to every charge against an accused ending with a conviction. This, as anybody can appreciate is manifestly unfair.
This is why a true criminal lawyer is and should be unconcerned about their own thoughts or feelings about an accused. They should also be unconcerned with the media, their friends, their family and even society’s thoughts and feelings about the matter. A trial is not about what anybody thinks. A trial is really about the sustenance of the system of justice. This is why they are under a duty to challenge and take up any legal objection against the charge if the accused contests the charge. The act of challenging also ensures the quality of prosecution and would tend to ensure that the prosecution’s evidence will always be high and sufficiently meets the standard of proof, which is beyond a reasonable doubt.
So prosecutors and judges who view defence lawyers as a nuisance or annoyance in truth do not understand the criminal legal system or even their respective roles within it. The lawyer is as necessary if not more necessary than the prosecutors or judge because he is theoretically the most independent.
A prosecutor is part of the Executive and the judge is part of the Judiciary. Both, from the perspective of international and administrative law, form part of the government administration. Both the prosecutor and the judge are in very powerful positions; so both, according to Lord Acton, are as potentially vulnerable as they are powerful to institutional prejudice and corruption (in the broadest sense of the word – intellectual, financial, moral, etc.). Finally, both the prosecutor and judge can be directed by the powerful, influential and political elite to do their bidding when they do not possess sufficient ethical courage and moral conviction to resist the wealth, convenience and power that corruption brings.
A lawyer, however, is generally not close to the source of power. His role as a lawyer is not dependent on powerful political forces or patronage. It is for this reason I personally consider that a lawyer who betrays his duties, to act without fear or favour in the interest of justice, actually commits a greater act of betrayal to the system of a fair trial and hence Justice. When the system is under attack, history has shown that often the first to betray justice will be the prosecutors. The next would be the judges. Of course there will be the good ones fighting the good fight but they are the first to be sidelined or sacked. They will never thrive and assume influential positions.
But it is the lowly lawyer who is the last defence of Justice. It is the lawyer who bears the heavy burden of being that final hope of keeping the ideal of a fair trial alive when the institutions of Justice have betrayed the public. It is the lawyer who must be the conscience of Justice as the judge is the fountain of Justice and the prosecutor the enforcer of Justice. All three of them represent the different facets of Justice.
That is why equity demands those that come to court do so with the cleanest of hands, especially those hands that are tasked with creating, shaping and dispensing Justice. One hand may act to defend Justice, but all three hands are needed to dispense Justice. This is why the judge, lawyer and prosecutor must come to court with not just clean hands, but cleaner souls and the clearest of minds. If any of them are lacking these vital attributes, they have no business in the courts of law, never mind the realms of Justice.
A lawyer that turns to cowardice, complacency and colludes with judges or prosecutors betrays and thwarts not only Justice but demeans his brothers and sisters at law whilst sacrificing the entire nation on the altar of self-interest and corruption.
When all this is understood, those questions posed earlier appear to miss the point and they indicate a very narrow conception and micro perspective of the purpose of a criminal trial. It is not simply a process the ‘bad guys’ go through before being sent to jail. That many lay people misunderstand this is natural because they usually do not understand the broader legal system or the larger principles of justice in which a criminal trial operates; they fail to understand what a trial means in the larger scheme of things i.e. a macro perspective.
A criminal trial if faithfully carried out is an opportunity to reinforce the ideal of a fair trial and allow for the manifestation of Justice. It is an instance for the system of a fair trial to vindicate itself again. What is actually at stake in each trial is not just the accused but the entire criminal justice system itself.
So a lawyer defending an accused person is not simply defending him, he is defending Justice itself.
That is why when somebody asks me how I feel about defending an accused whom I think or know to be guilty, I usually tell them I feel great about it. This reply often draws funny looks and no doubt thoughts about me that as one of those lawyers who lies and cheats to get criminals get off for mere money.
Not many are patient enough to hear my explanation above and for them to understand when I tell them that I feel great because firstly, it is not my job to decide his guilt, and secondly, in carrying out my job and defending him, I am playing a miniscule but vitally important role in sustaining and preserving Justice.
That is the least any lawyer, judge or prosecutor should strive for.
[Loyarburok Editorial Note: The essay Crap Lawyering are Grounds for Setting Aside Convictions may be of interest. Please also note that the use of the word ‘chew’ in place of ‘you’ was pioneered by the inimitable Art Harun.]