From Popehat (h/t Scott Greenfield):
It is currently fashionable for defense attorneys to say “clients lie” and “most clients are guilty.” I wouldn’t agree with either proposition. Everybody lies; I don’t think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It’s just that criminal defense scenarios require a level of precision and accuracy that most human interactions don’t. Being an effective and responsible criminal defense attorney doesn’t require believing everything a client says, exactly. The policy could be better described as “trust, but verify.” The key isn’t to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don’t, you’re not defending the client — you’re defending your stereotype of the client.
“Everybody lies” is like “all lives matter.” It doesn’t contradict the narrower statement to which it is intended to respond. Of course clients lie, because clients are people in terrifying and stressful circumstances and people in terrifying and stressful circumstances lie. Sometimes, a wise and benevolent man said years ago, they are lying to themselves as well.
“Currently fashionable” is a contemptful little phrase, and inaccurate in the same way that “clients lie” is inaccurate. It has always been true that clients lie to their criminal-defense lawyers. ((Ken says he also disagrees that “most clients are guilty,” but he doesn’t elaborate.)) Maybe the saying of it is a fad, but I doubt it — competent lawyers have, as far as I know, always acknowledged that their clients might not be telling them the truth. So we doubt and we doublecheck and we red-team.
Ken is right, in a painfully obvious made-for-ATL way, that a lawyer should take what the client says seriously.And I’m right when I say that it doesn’t matter to me whether you did it or not. And Scott is right when he points out that a lying client may squander the defense’s scarce resources.
It’s not the lawyer’s case but the client’s. And if the client wants to waste scarce defense resources on rabbit trails, that’s his stupid prerogative. But if you are the client, and you know these three things:
That your lawyer is going to take what you say seriously;
That it doesn’t matter to her whether you did it or not; and
That rabbit trails are going to make it less likely that she can actually find a defense that will work for you.
Are you going to lie to your lawyer? Or are you going to tell her the truth, so that she can focus her energy on the defenses that might have some basis in fact?
I like to think my clients are smart enough to do the latter.
I’d like to, but it’s not true. Because even my clients — awesome as they are — don’t always tell me the truth, “taking what the client says seriously” can’t mean following every lead. I’m not going to waste resources on something that won’t help the client. For example, if the client’s story is impossible ((Not merely implausible. Implausible things happen every day.)) given the facts beyond change. Or if the client’s story would, if true, do more harm than good. ((“I’m telling you, she was asking for it.” Dude, she’s six.))
Taking what the client says seriously does not mean not questioning it. To the contrary, if we take the client’s story seriously we are going to look for the evidence that would advance it and for the evidence that would refute it. Because if we don’t beat on the client’s story, it’s likely to collapse when the State starts beating on it.
All clients want us to believe them, but there is a special class of clients who need for us to believe them. Despite being told repeatedly, and registering their understanding, that our job is not to judge them, they proclaim that need loudly and often: “I need you to believe me.” They might even express a desire that you not red-team their case.
No, those alarm bells you are hearing are not just in your head.
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