Is a defense lawyer who knows, for certain, that a client is guilty, obligated to try and prove innocence?

Question

As per the title, is a defense lawyer who knows, for certain, that a client is guilty, (e.g. the client says so, etc.) obligated to try and prove innocence? What is a defense lawyer obligated to do in such circumstances?

Answer 1

To know a defendant is guilty is to know that the government has convinced a judge or jury beyond a reasonable doubt that the defendant committed all the elements of a crime.

A lawyer can't know that the government will accomplish this prior to a trial.

Options for a lawyer who determines that the government has a strong case include:

• seeking to have evidence excluded
• looking for other grounds for appeals
• establishing affirmative defenses
• negotiating a plea deal for a lighter sentence or less serious crime
• the lawyer will continue to force the government to prove their case

Answer 2

Defendants (and their lawyers) need to prove nothing: the onus is on the prosecution to prove guilt beyond reasonable doubt. That is why defendants are found guilty or not guilty - they are never found innocent.

That said, while jurisdictions vary, the NSW Barrister's Rules are representative of the obligations of an advocate in common law jurisdictions. Of note:

Duty to the Court

25. A barrister has an overriding duty to the Court to act with independence in the interests of the administration of justice.
26. A barrister must not deceive or knowingly or recklessly mislead the Court.
27. A barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading.

28. A barrister must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of:

    (a) any binding authority;

    (b) where there is no binding authority any authority decided by an Australian appellate court; and

    (c) any applicable legislation;

    known to the barrister and which the barrister has reasonable grounds to believe to be directly in point, against the client’s case.

Duty to client

37. A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person.

38. A barrister must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the barrister believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the litigation

39. A barrister must seek to assist the client to understand the issues in the case and the client’s possible rights and obligations, sufficiently to permit the client to give proper instructions, including instructions in connection with any compromise of the case.

40. A barrister must (unless circumstances warrant otherwise in the barrister’s considered opinion) advise a client who is charged with a criminal offence about any law, procedure or practice which in substance holds out the prospect of some advantage (including diminution of penalty), if the client pleads guilty or authorises other steps towards reducing the issues, time, cost or distress involved in the proceedings.

Criminal pleas

40A. It is the duty of a barrister representing a person charged with a criminal offence:

(a) to advise the client generally about any plea to the charge; and

(b) to make clear that the client has the responsibility for and complete freedom of choosing the pleas to be entered.

40B. For the purpose of fulfilling the duty in rule 40A, a barrister may, in an appropriate case, advise the client in strong terms that the client is unlikely to escape conviction and that a plea of guilty is generally regarded by the court as a mitigating factor to the extent that the client is viewed by the court as cooperating in the criminal justice process.

40C. Where a barrister is informed that the client denies committing the offence charged but insists on pleading guilty to the charge, the barrister;

(a) must advise the client to the effect that by pleading guilty, the client will be admitting guilt to all the world in respect of all the elements of the charge;

(b) must advise the client that matters submitted in mitigation after a plea of guilty must be consistent with admitting guilt in respect of all of the elements of the offence;

(c) must be satisfied that after receiving proper advice the client is making a free and informed choice to plead guilty; and

(d) may otherwise continue to represent the client.

Independence

41. A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s wishes where practicable.

So a barrister's duty if they believe the client is likely to be proven guilty is to advise them of this and point out that this is a mitigating factor in sentencing. Notwithstanding, a barrister is never permitted to deceive the court or allow the court to be deceived - this almost certainly means that a barrister will not call the defendant as a witness if the barrister believes the client will perjure themselves.