defense, lawyers, conviction, reasonable doubt, evidence, criminal law, justice
Defence lawyers often fight to prevent the conviction of people who have committed serious crimes. How can this role be justified? In providing his answer the author generally accepts the traditional view of criminal lawyering according to which defence counsel "does good" by ensuring that the state does not obtain a conviction in the absence of proof beyond a reasonable doubt based on admissible and reliable evidence Ethical advocacy in the criminal context is thus heavily influenced by a conception of justice that includes not only the search for truth but also due process rights for accused persons. The author nonetheless argues that defence lawyers must sometimes promote values other than the client's best interests, and routinely bring their own judgment and perspective to bear in addressing ethical issues. Far from being amoral automatons striving to advance a client's interests to the absolute limits allowed by law, defence lawyers apply a personal conception of shared professional values and so make normative decisions that impact on the course of justice Examples discussed include the release of confidential information to prevent harm to a third party, the process of giving advice to clients, the handling of physical evidence of a crime and, most especially, the cross-examination of a sexual assault complainant who defence counsel knows is telling the truth.
David Layton, "The Criminal Defence Lawyer's Role" (2004) 27:2 Dal LJ 379.