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Comment by frellus | Hacker News Reader

While we're at it, I think it should be illegal for prosecutors -- or defense attorneys -- to lie or use hypotheticals they know are not true just to spread doubt. Law should be argued on facts, conviction and conjecture.

Example: if I was caught drunk driving and blew a 0.15, my lawyer shouldn't be able to say "How do you know my client didn't just use mouthwash? Mouthwash has a level of alcohol in it." If they know that's not what happened, it shouldn't be legal to plant in the mind of a jury or judge. Rather they could say factually, "How accurate are these breath tests?" or "Are you sure you administered the test correctly?" to the officer being witnessed.

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Attorneys (including defense attorneys), as officers of the court, are ethically barred from lying to the court or bringing witnesses whom they know intend to lie. Defense attorneys will sometimes tell their clients "if you're guilty, don't tell me" in order to avoid such ethical restrictions.

Of course, not all lawyers live up to their ethical obligations and if the only evidence of an ethical lapse is protected by attorney-client privilege, it's unlikely that they would ever get caught.

I disagree with your example. That's a perfectly reasonable question that a good witness can have a perfectly valid answer to: "I know your client didn't use mouthwash because we tested this process and proved that mouthwash is only capable of getting up to a 0.05 (or whatever number)".

If the officer doesn't have a good answer to the question, then there exists reasonable doubt, whether or not the defense attorney knows that their client was, in fact, drunk.

I think the point frellus made was that you shouldn’t be allowed to create reasonable doubt by bringing up something you know is not true/relevant. If the lawyer know no mouthwash was involved, it shouldn’t be allowed to use the ambiguity created by mouthwash to discredit the measurement. At least that’s how I understood it.

I agree that's what they meant, but why not?

The standard of proof isn't "beyond the doubt of my own lawyer", the standard of proof is "beyond a reasonable doubt". The entire job of a defense attorney is to cast reasonable doubt on the prosecution's evidence. If there's a reasonable explanation for the prosecution's evidence that doesn't involve the defendant being guilty, that's a reasonable doubt. Whether the defense attorney knows the doubt isn't true in this case is irrelevant to the question of whether it's a reasonable doubt.

Our system is designed to try to avoid putting innocent people in jail even if that means failing to convict some guilty people. It's already imperfect at that goal. We already convict the innocent. OP's proposal would tie defense attorneys' hands in ways that would lead to even more innocent people in prison.

But the defense can spend literally weeks bringing up random stuff that is irrelevant to the case that will cast doubt.

See the OJ criminal vs civil trial.

In the criminal trial the lawyers spent days bringing up every time the LA lab mishandled evidence. The LA police lab didn't handle the evidence in the OJ case. In the civil trial they weren't allowed to bring any of that up.

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