criminal-law common-law lawyer jury professional-ethics
How do defence lawyers get away with saying &quot;he didn&#39;t do it&quot; when they only can prove the uncertainty that he did?
<p>Following various criminal trials (like <a href="https://www.stuff.co.nz/national/crime/300366508/desert-road-murder-case-bao-chang-wang-killing-was-ordered-by-drug-ring-leader" rel="nofollow noreferrer">this one</a>) I often see defence lawyers claim that the defendant unequivocally <em>did not</em> commit the crime whereas they do not actually present (or claim to have) evidence to that effect (e.g. alibi): they only cast arguably reasonable <em>doubt that he did</em>.</p>
<p>That is, on the following diagram, the defence may have somewhat good chances to land <em>above</em> the orange line (e.g., as in the linked case, they simply say that the prosecution witness is a liar). Nevertheless they claim to be at the green top (like they have an alibi):</p>
<p><a href="https://i.stack.imgur.com/qwRMu.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/qwRMu.png" alt="enter image description here" /></a></p>
<p>How are those clearly illogical claims allowed? Aren't lawyers expected to sound coherent? Why don't they instead say what they have i.e. &quot;guilt needs to be proved beyond reasonable doubt but here <em>is</em> very reasonable doubt&quot; — instead of blunt &quot;he did not do it&quot;? Is the latter just some sort of traditional courtroom rhetorical bullshit aimed to influence the jury, for some reason allowed by judges and not even pointed to by prosecutors — even though the jury <em>will</em> be instructed by the judge on the standard of proof required?</p>
<p>(Any common law jurisdiction)</p>

<p>In the case you link, this was given as an opening statement by the defense. Opening statements do not contain evidence. The defendant may or may not testify on their own behalf during the trial - this testimony, if given, counts as evidence, even if it is somewhat self-serving. And anything which tends to casts doubt as to the defendant's guilt is <em>evidence</em> that they didn't do it, even if it isn't <em>proof</em>.</p>
<p>If there is reasonable doubt, then &quot;he didn't do it&quot; is <em>not</em> illogical. And it would seem unfair to allow the prosecution to say &quot;he did it&quot; but <em>not</em> allow the defense to say &quot;no he didn't&quot;.</p>

<p>The link involves a New Zealand case, and I don't know what the ethical rules there say about this practice.</p>
<p>In Colorado, where I practice, which is also a common law jurisdiction, it is categorically prohibited, at a matter of attorney ethics, for an attorney in a trial to express a personal opinion as to whether or not a crime was committed or whether or not someone was truthful.</p>
<p>Instead, in opening argument, a lawyer must generally say something along the lines of &quot;the evidence will show&quot; and that based upon what the evidence will show, that the jury should rule a certain way. Certainty that the evidence will show what is said is not required, but the lawyer must have a good faith belief that the evidence is reasonably likely to show what is claimed (and as a tactical matter saying it will show something when it doesn't is a bad call).</p>
<p>In closing argument, the lawyer should summarize what the evidence was, what a reasonable person could infer from that evidence, and explain how that applies to the law set forth in the jury instructions, and then that based on that, that they jury should rule in a particular way.</p>
<p>An attorney should generally not put his or her own credibility at issue by implying personal knowledge of the facts in trial practice. When a prosecutor does that, it can be grounds for a mistrial ruling in addition to ethical sanctions.</p>

<p>A defense lawyer may in fact believe that the accused is in fact innocent, even if the lawyer does not have solid proof of that fact.</p>
<p>But what a lawyer says during an opening argument need not be what the lawyer in fact thinks, nor what the lawyer can surely prove.  It will be what the lawyer wants the jury to conclude from the evidence to be presented. It will usually include mention of specific evidence that will be presented, and how the lawyer wants the jury to interpret and connect those items of evidence. It may also include predictions about  what evidence the other side will offer, and what weight or lack of weight the lawyer wants the jury to give such evidence.</p>
<p>The conclusions that the lawyer invites the jury to draw should be ones that could reasonably follow from the evidence that the lawyer expects to be presented. It is not proper for the lawyer to intentionally mislead the jury about what the evidence will show, but it is proper, indeed expected,  for the lawyer to but the best interpretation reasonably possible on the expected evidence. The lawyer's own beliefs are not at issue and are not normally mentioned.</p>
<p>There is no rule that requires the lawyer to limit the claims and conclusions made to what can be strictly proved by the evidence that the lawyer intends to present. They can be conclusions that reasonably but not necessarily follow from the expected evidence</p>
<p>There rules in a closing argument are somewhat more restrictive, but not very much. There a lawyer cannot refer to evidence that was never presented, or was ruled not admissible. But a lawyer may suggest whatever conclusions s/he thinks the jury can be reasonably persuaded to draw from that evidence, whether the lawyer personally believes those conclusions or not, and no matter whether such conclusions necessarily follow from the evidence.</p>
<p>It is unusual for a lawyer to argue &quot;Perhaps the defendant did it, but the state can't prove that&quot; even though in many cases that woulds be an objective summery of the defense case. Nothing requires the defense to argue in those terms.</p>

<p>In England and Wales, if a solicitor <em>knows</em> that a statement they are making is false or misleading (e.g. the client has admitted to them that he did something but wants the solicitor to tell the court that he didn't) then they are obliged to stop acting for their client. This is because of a conflict between the following rules in the <a href="https://www.sra.org.uk/solicitors/standards-regulations/code-conduct-solicitors/" rel="nofollow noreferrer">SRA code of conduct</a>:</p>
<p><strong>1.4:</strong> <em>&quot;You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).&quot;</em></p>
<p><strong>3.1:</strong> <em>&quot;You only act for clients on instructions from the client, or from someone properly authorised to provide instructions on their behalf. If you have reason to suspect that the instructions do not represent your client's wishes, you do not act unless you have satisfied yourself that they do. However, in circumstances where you have legal authority to act notwithstanding that it is not possible to obtain or ascertain the instructions of your client, then you are subject to the overriding obligation to protect your client's best interests.&quot;</em></p>
<p><strong>6.3:</strong> <em>&quot;You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.&quot;</em></p>
<p>For example, you know for a fact that your client did X. Your client instructs you to tell the court that he did Y instead. You therefore do not have his consent under rule 6.3 to disclose to the court the fact that he did X. You cannot tell the court that he did Y because that would be a breach of rule 1.4. Yet if you act at all, you are under an obligation to tell the court that he did Y under rule 3.1.</p>
<p>Whatever you do, you will breach at least one rule. The only way to avoid this is to stop acting for the client. When informing the court of this you will need to be careful not to state the reason why you are stepping back from the case in order not to breach rule 6.3. The courts should not insist on an explanation in such cases.</p>
<p>I assume a similar rule exists for barristers but I am not personally familiar with their code of conduct or with the rules in other jurisdictions.</p>
