Every professional, regardless of their line of work, will encounter questions as to the ethics of their profession.
For defence solicitors, one of the most common questions is some variant of, “Why would a criminal solicitor defend someone who’s guilty?” It’s a reasonable question to ask and it deserves a thoughtful answer.
Here are a few of the reasons why we do what we do and why it’s so important to the rule of law:
There’s a difference between ‘legal’ and ‘factual guilt’
The dictionary definition of guilt is “having committed a specified offence.” But in the criminal justice system, solicitors deal with the more specific term of “legal guilt.” This refers to whether the prosecution can establish that the accused is guilty beyond a reasonable doubt. Given that in Australian law – as is true of many other countries – everyone is presumed innocent until proven otherwise, it’s up to the state to show that an individual did what they are accused of. This is different from “factual guilt,” which refers to whether someone actually did do what they’re charged with – the latter is not dealt with in criminal proceedings. It’s up to the state to prove the defendant’s culpability, not the defence solicitor’s job to disprove it.
Admission doesn’t necessarily mean someone is guilty
It seems straightforward enough: If a person says that they did something against the law, then that’s it – case closed. But as a plethora of precedents have shown, many people may say that they’re guilty of what they’re accused of, but might not be telling the truth. It could be that an individual wants to take the blame, perhaps out of loyalty to the person who actually did commit the crime. In other instances, police abuse their authority and subject the people they’re questioning to harsh treatment to coerce a confession. A series on Netflix called “The Confession Tapes” goes through several examples of when such incidents have occurred.
Defence solicitors rarely know about factual guilt one way or the other
In some ways, it can be said that a defence solicitor’s primary responsibility is to assure that the state does its job. The burden of proof is always on the prosecutor, who must lay out the facts explaining why the accused is legally guilty under Australian law. Defence solicitors therefore serve as a check on the prosecution, and frequently don’t ask their clients about guilt or innocence. That fact, in some ways, is immaterial – it’s for the jury to decide based on evidence put forth by the prosecution, and the judge’s responsibility to mete out an appropriate and just sentence if a guilty verdict is reached.
Charges may be inaccurate
Just as there is more than one meaning to the term “guilt,” charges for what seem like easily defined acts often differ. For instance, if someone is charged with murder, but the facts suggest the wrongful death in question is closer in legal definition to manslaughter, the defence is tasked with showing why the charge is wrong. This should ideally result in an acquittal if the judge or jury agrees – or, as is not infrequently the case, may be hashed out in a pre-trial plea agreement involving intricate negotiations between prosecution and defence.
A robust defence is obligatory
Everyone, regardless of their culpability, is entitled to a vigorous, full-throated defence. It’s a hallmark of the Australian justice system. Defence solicitors and law firms are duty-bound to their clients, assuring the client and their families that all resources will be exhausted to protect their clients’ individual freedoms and privileges as citizens of the Australian Commonwealth. Anything short of that constitutes a failure on their part – they’re simply not doing what they swore to upon becoming a practising solicitor.
Defence provides context
Many cases may initially appear open and shut, but once the evidence is parsed and witness are interviewed, those first impressions can be deceiving. A defence team may be presented with certain facts about an alleged crime, but upon closer inspection, there may be an explanation to the circumstances of an illegal activity that are not immediately apparent. A defence solicitor must investigate further to determine if there is more to the story.
At Russo Lawyers, upholding your rights is our foremost purpose and we will do everything in our power to assure you get the defence that you deserve. Contact us today.
