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Comment by 0xDEADFED5 | Hacker News Reader

isn't the entire premise of this article flawed? the feigned indignity at their clients lying...when it's pretty much required for them to receive any semblance of effective defense:

  There is a kernel of an exception that is almost not worth mentioning. The Rules of Professional 
  Conduct 3.3 obligates me with the duty of candor. I am not allowed to present evidence that I “know” 
  is false, which encompasses witness testimony. Some jurisdictions make exceptions to this rule for 
  defendants testifying in their criminal trial (correctly, IMO) but not all. So assuming that a 
  client truthfully confesses to me, assuming we go to trial, assuming they decide to testify, and 
  assuming I “know” they’re going to lie, then yes, this could indeed spawn a very awkward situation 
  where I’m forced to withdraw in the middle of proceedings.

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“Lying to the court” is not necessary for an effective defense, and defendants are not obligated to testify in the first place.

Remember that perjury is also a crime and you’re not “allowed” to commit perjury just because you’re testifying in your own defense (which is your choice).

If you’re actually guilty, your defense is supposed to challenge the validity of the evidence the prosecution is using to convict you. Not lie to the court and hope your lies are more convincing than the prosecution’s evidence.

> If you’re actually guilty, your defense is supposed to challenge the validity of the evidence the prosecution is using to convict you. Not lie to the court and hope your lies are more convincing than the prosecution’s evidence.

Ideally yes, but prosecution (and the entire process leading to arrest) lies and breaks the law and takes advantage in every way possible. It's a very dishonest process to try to be honest against.

That’s often said, but this public defender seems to think otherwise and he’s certainly seen the inside a courtroom much more than I have.

But he seems like an odd person [1] and I wonder what might be atypical about his experiences? It would be interesting to read the experiences of other public defenders. It’s their job to look for problems.

[1] https://www.lesswrong.com/posts/4rsRuNaE4uJrnYeTQ/defunding-...

Did you link the correct article? The author really says nothing about the legal system and is only reflecting that their 100% ACAB attitude maybe requires more nuance. This same author has written other pieces that plainly call the legal system an unfair joke (Eleven Words article specifically).

Regardless of any public defender's opinion, I am inclined to not fully respect opinions of people who are deeply embedded in the thing they have an opinion about, especially if it's in defense of the thing they're deeply embedded in. Humans lose perspective very easily, and especially when their identity is wrapped up in it.

I shared that to show that he has a somewhat odd background, not because it's directly relevant.

Yes, it's possible that insiders might have a biased view. However, in general, I do respect the opinions of people who have had experiences and write about them more than the comments of random internet strangers who, as far as I know, have no experience.

I know a few PDs, and I also worked in a court. The story checks out to me. I don’t think you’ll find a lot of PDs who will say cops and prosecutors regularly target genuinely innocent people. For the most part the job is to make sure all the boxes are checked and that the prosecution matches the actual crime.

Oh, you haven't met a lot of PDs, then. They'll tell you cops lie literally all the time and will make up evidence if they decide they don't like you. It's just easier and there's zero consequences for them if they're caught.

I know quite a few PDs. Ask the ones you know: are the accused guilty nonetheless? In other words, is the problem procedural or substantive?

Do the cops “breaking procedure” know for certain if the accused are guilty? How can they?

If you're innocent, you don't need to lie to your defense attorney.

If you're guilty, the system is not designed to protect you, and there's no reason why it should permit the guilty to commit perjury out of some desire to balance out (?) the fact that the prosecution and police sometimes lie as well.

What is a scenario where an innocent person needs to be allowed to lie to present an effective defense?

I don't think the person you're replying to is saying perjury should be legal. They're saying perjury might be a good idea sometimes. Especially if you're guilty, sometimes your only chance of staying out of prison does involve lying. A guilty person looking at 20 years would be reasonable to be unconcerned about whatever addition perjury charges might add (if they were even caught perjuring).

The fact that perjury might seem like a "good idea" to a criminal, or the only chance to stay out prison, doesn't mean it should be permitted.

The purpose of the justice system should not be to give guilty people the best chance to stay out of prison.

Yes, if you're guilty, lying may be your best defense. That doesn't mean the justice system should encourage it! If you're guilty, the justice systems want you to go to jail. All the protections exist to protect innocent people.

Ah, so of course you yourself, or someone you care about, would never be a guilty person, right? You would never find yourself, say, breaking a law that you didn't know about, or doing something that's technically a criminal act but seemed innocent enough at the time (the classic insider trader's lament), nor would you ever have a close family member who is charged with a serious crime. Or if you did, you would bravely accept the judgement of the court without taking exception.

You know, it would be terrible if I was found guilty of willful copyright infringement under the Digital Millennium Copyright Act, which carries "A fine of not more than $500,000 or imprisonment for not more than five years, or both, for the first offense"[1]. If I had committed such a terrible act as torrenting seven movies, the insult to my conscience would surely move me to accept the felony penalties with civic stoicism - after such twisted malice from myself, the additional moral consequences of pleading "Not Guilty" would be too great to bear.

[1] https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St...

You can't design a justice system around making it easy for you to escape responsibility for complying with laws you disagree with.

I'm not expressing an opinion on whether throwing someone in jail for torrenting movies is the right moral outcome. What I am saying is that a system which officially says "Yes, lying in court is legally permissible as long as you're lying about something related to a bullshit law" is not exactly sustainable.

I think the DMCA is a stupid and unfair law. The mafia probably thinks RICO is a stupid and unfair law. Someone who is a habitual drunk driver (but is convinced they can 'handle their liquor' better than the general public) probably thinks drunk driving laws are stupid and unfair. What of it?

In addition, I guess a public defender is likely to work harder in a case where they believe the client is innocent.

This interpretation of 'eleven magic words' also suggests it matters: https://news.ycombinator.com/item?id=33471299

His client in that case, by their own admission, was flagrantly guilty. What he was seeking and managed to receive was leniency.

This happens frequently in courts in my home country. There's even polite lawyer codewords so that you don't have to trudge in to court and say

'I'm sorry your honor, I have to withdraw from this matter because my client, who is a bit dim, has just told me at the lunch break that he totally did the thing, and also that he's going to lie his ass off about it when he gets up in the witness box in just a minute'

But the next time you hear a lawyer withdraw because they're 'forensically embarrassed', you'll know what happened

Not indignity but inconvenience. It would be like a boss lying to a software engineer about the requirements as they are scared it will cost too much then the wrong thing is built.

I'm curious how a lawyer not being allowed to present as truth known falsehoods at trial is stopping an effective defense? Wouldn't the lawyer knowingly be committing perjury if they lied in court?

they said it also applies to defendants testifying, so if question is

And then you shot her, correct?!

Answer: No I did not shoot her! I never did that.

And your lawyer knows it is a lie that you indeed did shoot her, it could be problematic at that point, depending on some jurisdiction.

I guess it depends if you think an effective defense should allow the guilty to go free?

Effective defence would allow the guilty to go free. (although “guilty” is a jury verdict so that is impossible but I presume you mean would be found guilty had more evidence prevailed). You can’t have an advocate that draws arbitrary lines at which they are not on your side advocating for you, what would those be?

Say someone says to their lawyer they shot the person but really they are covering for their wife even to mthe lawyer. The lawyer then hears them say in court they didn’t shoot (the truth) but the lawyer just knows they are saying something different now to what they said before. It could be that.

> ...although “guilty” is a jury verdict so that is impossible but I presume you mean would be found guilty had more evidence prevailed.

I'm not the author of the post referred to here, but I suspect that 'guilty' was intended to be read as 'actually committed the crime'.

To be clear, I support the principle that it is the acquittal of a perpetrator is far less of a miscarriage of justice than is the conviction of someone other than the perpetrator.

In this case I was using guilty in its common English usage, and not the specific American Jurisprudence usage.

You must mean clear cut cases too then. Not self defence etc.

I think the general principle is that defence lawyers aren't expected to contradict their clients' probably false testimony, and are perfectly entitled (encouraged, even) to deliver a "my client maintains the shot was fired by someone else, and nobody witnessed the shot" defence whilst being pretty convinced they fired the shot, but if they close with a series of factual claims about "Richie Bottoms" whilst knowing full well that name was made up on the spot by their client they could be in trouble. Doing their job properly means trying to persuade their client to stick to technicalities and avoid the "Richie Bottoms" defence because it'll fall apart, not patching the holes in it.

But the fact we're debating how open defence lawyers are supposed to be and there is jurisdictional variation is a good indication of why criminals might feel they're best served lying to their defence lawyer, and lying as elaborately as possible rather than just avoiding confessing. The potential consequences of telling the truth are much worse than merely having your public defender think you're a fool. Plus if you're intending to test whether your denials are believable before you use them in court, you won't get a better opportunity than a privilege-protected conversation with someone who's seen a lot of excuses...

That's not perjury. Trial attorneys are not under oath because that would conflict with their duty to advocate for their clients. Their duty not to lie to the court is a matter of professional ethics.

> when it's pretty much required for them to receive any semblance of effective defense:

No its not, holy shit.

Lying to your lawyer is a terrible idea. The lawyer is there to HELP YOU and present an effective defense. If you lie to the lawyer, the lawyer works with a different set of baseline arguments for your defense. If the lie is revealed, the defense is broken, it doesn't matter anymore. Months of work tossed out the window, nobody trusts the defendant anymore, and the lawyer needs to figure out damage control rather than actually defending you.

Repeat. If anyone finds out you lied, you are FUCKED. Trust goes out the window, Judge thinks you're a unrepentant idiot, most possibility of leniency in the case you are considered guilty is dropped.

It's literally one of the worst things you can do at trial.

To add to that, your lawyer is bound by both professional, enforceable ethical guidelines as well as legal doctrine from revealing anything you've said to them in the course of their representation of you without your express consent. The number of exceptions to that is tiny. The only one that really matters is crime/fraud which relates not to your crime but using a lawyer to commit a crime. The others are either after you're dead (probate exception, where your lawyer can disclose information for the purposes of helping settle your will after your death) or are exclusively about money (your lawyer can disclose details of your agreed upon contract and payment structure if they are having to fight you to be paid).

There is zero reason to lie to your lawyer, all you do is make them less prepared in their defense.

When the judge or jury look over to the defendants' table, they need to find someone they can trust and believe. Sometimes, yes, from the outside the result seems binary, but it's a process that everyone ideally navigates with dignity that might involve multiple levels of culpability and end with a sentence that is highly discretionary. The attorney could give weak factual defense on one or more levels of culpability to preserve credibility and generate more positive outcomes in terms of the process, dignity, and sentence. Also, the attorney is going to see that judge and prosecutor again ....

I also believe that (at least in some states), this assertion is inaccurate:

> It’s true, a client can show me where they buried their dozen murder victims and I wouldn’t be allowed to tell a soul, even if an innocent person is sitting in prison for their crimes.

At least in Alabama (for no specific reason other than it was the first hit I found):

> RULE 3.3: CANDOR TOWARDS THE TRIBUNAL

> (a) A lawyer shall not knowingly:

> (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client

Seems to me that knowing that your client is materially guilty and an innocent person has been convicted for their crimes is "assisting a criminal or fraudulent act" by your client.

You will find that the previous act establishing criminal liability is not the criminal or fraudulent act with which the attorney is barred from assisting.

Hmm, interesting. And I know it's definitely an area I don't know. Although I didn't see any in those Rules that restricted the scope to the current matter in which the attorney is providing counsel.

That's only if your defense strategy is to lie in court. But once you're caught, and there is evidence, you're best strategy is to admit your guilt.

Or if you really think you can lie your way to acquittal, then you can successfully convince your lawyer of your lie. If your lawyer can see through your bullshit as easily as the examples he gives, you're not going to fool the court.

That's right, I'm pretty sure if you're rich enough you don't have to lie to your lawyer, they want to know exactly the truth in order to craft an effective defense.

That said they also say here it depends on the jurisdiction so in some jurisdictions it won't matter that you know if your client is lying.

hmm - potentially can you start a case in jurisdiction 1 where rules are a certain way and then get case moved to a different jurisdiction where it is different? Seems unlikely and probably not something competent lawyer would allow - but still...

Defending a criminal is a completely separate thing to abetting a perjury.

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