22 April 2005

Evidence and the Defense Attorney

Regarding the stolen computer in yesterday's post Mark asks/comments:
About the kid with the stolen computer: What would you do if that kid walked into your office? What's your advice as an ethical practitioner of law? You can't just tell him to keep it or destroy it, can you?

If I had that computer, I'd call the professor's bluff. Literally call him on the phone and ask him, "So, if this computer is such a big deal and there are government agencies looking for it and all that, you shouldn't have any trouble telling me the serial number that's written on the bottom. And the address of the wireless card that you've been tracking....Didn't think so." Click.
Well, I wouldn't tell him to call a professor who might recognize his voice or might get police to track his phone number or get prints off the pay phone. And, as his attorney I sure as heck wouldn't make that call. My conversation with John Smith might be confidential but the fact that he's my client isn't. The police would have a pretty strong suspect if only one of the students in the class was a client of mine. I do agree it would be fun to call the prof's bluff but it just ain't worth the risk.

When this kid comes into my office I'm not sure there's much I can tell him as to what he should do with the computer. I can neither take the evidence of his guilt into my possession nor advise him to do anything illegal with it. If he asks me if he should hide it I must express no opinion. I think something along the lines of, "I can't and won't tell you what to do with the computer. I am not allowed to aid you in any future illegal act like hiding evidence."

Of course, this is a gray area if I've ever seen one. If he brings the computer to my office and then leaves with it in his possession have I aided in hiding evidence? My answer would be no; he's responsible for his own acts with an item in his possession.

But what if he asks me legal questions about his situation? Can I advise him that as the situation stands there is little evidence and a weak case against him? That if the computer is traced to him the prosecutor will have a strong case? This is the really sticky point. My client is asking me legal questions and it is my obligation to advise him as to his situation. But I'm not stupid, I have an idea what he's going to do with that information.

I think what I have to do is something along these lines. First, I tell him that I cannot help him to commit any crime and that I absolutely refuse to discuss the possibility of any future crime. Then I tell him that he has an obligation to act within the parameters of the law. Then I explain to him his legal situation. Then I shoo him out of my office.

Let him take the information and make his own decisions. Maybe he'll do the morally correct thing. I have my doubts about that (my job makes the best of people cynical) but I don't know that. He is the one who will act of his own free will.

It's not an entirely satisfying answer and I recognize that fact. A number of the things my profession requires of me are not entirely satisfying. Nevertheless, I think the answer I've given best fulfills the obligations which are part and parcel of being a defense attorney.


Windypundit said...

That's what I was wondering, how you'd balance those obligations. I guess you're kind of in Limbo, unable to recommend specific actions while the crime is going on. It's probably a good thing that defense lawyers aren't allowed to advise criminals on how best to commit crimes to avoid conviction.

As far as calling the professor's bluff, if I did all the cool things I'd like to do, I'd be some kind of minor folk hero. An imprisoned minor folk hero.

Anonymous said...

I disagree. The identity of your client in most states can be kept a secret when the identity itself is material. Rule 1.6 of the MRPC: "a lawyer shall not reveal information relating to the representation of a client unless the client gives consent after consultation This "prohibition that generally includes disclosure of a client's identity." See, e.g, Cent. for Nat. Sec. Studies v. DOJ, 331 F. 3d 918 (D.C. Cir. 2003)

Ken Lammers said...

Oh, I'd definitely be required to move to squash the subpoena under Virginia's LEO's. And maybe the Virginia appellate courts would support my client's right to withhold his name. I really don't want to take that sort of chance on my client's behalf.