Hari's Corner

Note: I've used the masculine gender here, because it's inconvenient to refer to he/she, his/her all the time and them/their is a clunky grammatical device.

It's been a while since I wrote on legal topics, but thought I would explore one more subject which is an interesting topic of discussion both in legal circles and by lay people.

The simple answer is: yes. A lawyer can defend a guilty man and is well within his rights to do so (and in fact, has a legal duty to present his client's case to the court). A defence lawyer who refuses to present his client's side of the case on insufficient grounds may be guilty of professional misconduct.

Surprised? Actually you shouldn't be. If you've read my earlier article on presumption of innocence, you would realize that the question itself is faulty. How can a man be guilty before a court of law decides so? Sure, guilt-in-fact is one thing but the law says nobody can be convicted until the fact of guilt is proved by the due process of law.

Let us assume that a lawyer actually knows of his client's guilt. Now this would mean that the lawyer is automatically disqualified from defending him in a professional capacity because he would then become a witness in the case. If you have seen a man commit a crime or you are in possession of facts which you acquired through personal experience which amounts to evidence for or against the man, you are a witness.

But what if the lawyer has merely a strong suspicion that his client is lying? If so, then the next question is, are the suspicions justified by facts or are they mere prejudice? This is a harder question to answer and in most cases, it would be up to the lawyer to decide based on his past experience and knowledge. However, unless he is justified in disbelieving his client's case wholly or in such matters which seriously affects the proposed defence, he still has a duty to put forth the defence before the court. This seeming contradiction between the lawyer's duty towards the client and duty to the court to assist in the inquiry of truth is a strange legal paradox worthy of a deeper philosophical debate.

There are a couple of reasons for this:

• A lawyer is not the judge and his belief or lack thereof in the client's case should not technically affect the presentation of the case in a court of law.
• A majority of accused persons would never get a fair or proper trial if a lawyer had to strongly believe in their innocence before defending them. In criminal cases, you almost never reach the trial stage unless there is some kind of case against the accused. Whether such evidence amounts to proof is for the judge or jury to decide after hearing both the prosecution and defence witnesses and the legal arguments presented by counsel.

The deeper issue here is that it is far too easy to imagine unsavoury things about a person who is accused of a serious crime. The more serious the crime, the more one will tend to read into the accused's character or make assumptions about the truth of his statements. Circumstantial evidence might be extremely strong, and yet it can be highly misleading as well. And for many unfathomable reasons an accused might prefer not to state all the facts and this might count against him in a trial.

Yet a lawyer must put aside all such considerations based on conjecture and purely deal with what he knows. In addition a professional criminal lawyer should never get personally involved with his clients and leave the truth of the facts to the judge or jury.

The other angle to the question which I've deliberately refrained from talking about is the rights of a convicted person to appeal in a higher court because that is another topic altogether.