Representing a Client the Lawyer Thinks Is Guilty

Does it matter if your lawyer thinks you committed the crime? It shouldn't.

By , Attorney · Santa Clara University School of Law
Updated by Rebecca Pirius, Attorney · Mitchell Hamline School of Law

Defendants who've done the act that forms the basis of their criminal charge often wonder whether they should tell their lawyers. Even if they remain silent, they are concerned that their lawyers will believe that they are guilty, and either won't want to represent them or will do a poor job.

If you're having the same concerns, remember, it's a criminal defense lawyer's job to defend you—guilty or innocent—and to protect your constitutional rights. And they do this every day for guilty and innocent defendants alike.

Criminal Defense Lawyers Represent Both the Guilty and the Innocent

In the U.S. criminal justice system, a defendant is innocent until proven guilty. The prosecutor must prove a defendant's guilt. Defendants do not have to prove their innocence.

Prosecutor's Job to Prove Legal Guilt

Understand that what's at stake in your case is whether the prosecution can prove beyond a reasonable doubt that you committed the crime with which you're charged. That's a different question than asking whether you did the act that's involved. For example, if you're charged with robbery and you did, in fact, wrestle a purse from a woman on the street, you're still entitled to an acquittal if the victim cannot identify you.

The key is the difference between factual guilt (what the defendant actually did) and legal guilt (what a prosecutor can prove). A good criminal defense lawyer asks not, "Did my client do it?" but rather, "Can the government prove that my client did it?" No matter what the defendant has done, he or she is not legally guilty until a prosecutor offers enough evidence to persuade a judge or jury to convict.

Defense Strategies and Ethical Considerations

It's your attorney's job to develop a defense strategy, not to judge you. Defense attorneys are ethically bound to zealously represent all clients, those whom they think will be justly found guilty as well as those whom they think are factually innocent. A vigorous defense is necessary to protect the innocent and to ensure that judges and citizens—and not the police—have the ultimate power to decide who is guilty of a crime.

In truth, the defense lawyer almost never really knows whether the defendant is guilty of a charged crime. Just because the defendant says he did it doesn't make it so. The defendant may be lying to take the rap for someone he wants to protect. Or the defendant might be guilty but of a different and lesser crime than the one being prosecuted by the district attorney. A defendant may have done the act in question but have a valid defense that would exonerate him. For these reasons, among others, defense lawyers often do not ask their clients if they committed the crime. Instead, the lawyer uses the facts to put on the best defense possible and leaves the question of guilt to the judge or jury.

What defense attorneys cannot do is lie to the judge or jury. For instance, a lawyer cannot specifically state that the defendant did not do something the lawyer knows the defendant did do. The lawyer also can't admit guilt against the client's wishes. Instead, the defense lawyer will focus their trial tactics and arguments on the government's failure to prove all the elements of the crime.

Example: Sam is charged with shoplifting. Sam admits to his lawyer that he took a watch, as charged. Sam's lawyer realizes that the store's hidden camera videotape is fuzzy and practically useless as prosecution evidence. In addition, Sam's lawyer learns that the store's security guard was at the end of a long overtime shift and had been drinking alcohol. Sam's lawyer can use these facts in an argument for Sam's acquittal. Before trial, Sam's lawyer can argue to the prosecutor that the case is too weak to prosecute. At trial, Sam's lawyer can argue to a judge or jury to acquit Sam. No matter what Sam has done, Sam is not legally guilty unless the prosecutor can prove it beyond a reasonable doubt. But Sam's lawyer cannot ethically state in his argument that Sam "didn't do it," only that the prosecutor didn't prove that Sam did do it. While the line between ethical and unethical behavior may seem like—and indeed, is—a fine one, it is a line that criminal defense lawyers walk every day on the job.

Talking and Working With Your Lawyer

If you're suspected of or charged with a crime, contact a criminal defense attorney as soon as possible. Even if you plan to speak with the police, you might want to consult with an attorney first. Your attorney can guide you through the criminal justice process and help you understand your rights.

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