I Need to Know the Bad Facts, Too
One thing I’ve learned practicing criminal defense is that clients don’t always tell you everything, especially when you first meet. Sometimes they’re embarrassed. Sometimes they’re worried about what their family or friends will think, so they’ve already settled on a version of events that sounds better than what actually happened. And sometimes they believe that if they admit to their lawyer that they did it, their lawyer won’t be able to represent them.
That’s simply not how criminal defense works. My job is to get the best possible outcome for the person I’m representing, regardless of what he may or may not have done. I’ve always believed I’d rather see a guilty person go free than an innocent person be convicted. That’s part of why we have a presumption of innocence and why the burden of proof rests with the prosecution. The government has to prove its case. My client doesn’t have to prove he’s innocent, and I’m not there to judge him.
After this many years, there isn’t much that shocks me anymore. We’ve seen just about everything. I sometimes compare it to a coroner who can eat a turkey sandwich while performing an autopsy. Something that would shock the average person just becomes part of the job when you’ve done it long enough. I still take every one of these cases seriously. But I’m not sitting across from a client waiting to be offended by what he tells me. I’m trying to figure out how to help him.
There is a difference, though, between being honest with your lawyer and telling your lawyer every detail on day one. Sometimes I don’t want to get into all of it in our first conversation. I may want to review the discovery first, so I understand what the prosecution thinks happened and what evidence it has. What a lawyer knows comes with ethical obligations, particularly when it comes to testimony. I can’t knowingly put a client on the stand to say something I know is false. So there are times when it makes more sense to start with the evidence than to ask a client for a complete account of everything he did or didn’t do.
One way I handle this is by looking at the case through the eyes of the witnesses. Instead of asking my client to walk me through every detail, I may ask what someone standing nearby would have seen or heard. What could that witness actually testify about? What did the police see? What do the recordings show? The jury is going to hear from witnesses and see whatever exhibits come in. Knowing how the case looks from that angle is often more useful than having a client tell me what he thinks I want to hear.
The real problem comes when a client gives us one version of events, we prepare the case around it, and then we learn something very different as trial gets close.
I dealt with exactly that in a recent case. Our defense was built around the expectation that our client had to testify and explain his side. We believed his testimony was going to be important in helping the jury understand what happened. But as we were preparing for trial, he gave us a completely different account of some critical events. After that, we could no longer present the testimony we had planned.
That wasn’t a minor adjustment. It changed how we approached the entire trial, from jury selection and opening statement through the evidence and closing argument. When you’ve spent months preparing a defense around one set of facts, learning right before trial that those facts aren’t accurate can be devastating. We still have to defend the client as effectively as we can, but by then the options may look very different from the ones we’d been preparing.
I don’t think clients always appreciate this. They think they need to tell their lawyer a story that sounds good, or they worry that admitting something bad means they’ve lost. But a bad fact isn’t necessarily the end of a case. There may be legal issues, holes in the prosecution’s evidence, questions about intent, or other circumstances that change the outcome. Bad facts I can work with. Preparing around facts that turn out to be wrong is what really hurts a defense.
I also explain to clients that our conversations are confidential. That protection starts with the initial consultation, not just after someone formally hires me. I can’t repeat what a client or prospective client tells me to his family, his employer, or anyone else who wants to know what’s going on.
That matters most when a parent, spouse, or other family member is paying the fee. Sometimes the person paying the bill believes that entitles them to know everything about the case and everything the client has told me. It doesn’t. My obligation is to the person I represent. Paying the fee doesn’t give someone else control over the defense or access to confidential conversations.
In the end, I don’t expect the people I represent to be perfect. I don’t expect them to have made good decisions every step of the way, and I certainly don’t expect them to know how to navigate a criminal case. That’s why they hired a lawyer.
What I do need is the truth about the things that matter, even when it’s ugly. I would much rather hear it early in the case than find out about it the week before trial.
Brett H. Knight is a partner at Jaffe, Hanle, Whisonant & Knight, P.C. His practice includes criminal defense in Alabama state and federal courts.
This article is provided for general informational purposes only and is not legal advice. Every criminal case is different, and past results do not guarantee a particular outcome.
For more information, contact an experienced Birmingham criminal defense attorney at Jaffe, Hanle, Whisonant & Knight, P.C. for a free consultation.
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Jaffe, Hanle, Whisonant & Knight, P.C.
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