Catholic Apologetics Online

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Legal defense of murderers

1247. A man is charged with murder, and is being defended by a Catholic lawyer.

Such is the setting you give for your questions. And in those questions you ask concerning the moral obligations of the lawyer. But there is no need to suppose that the lawyer is a Catholic, unless you believe that a Catholic is expected to be faithful to natural moral obligations more than others. And before I go on, I must point out one other thing. We must divide legal processes into civil causes, and criminal causes. The moral obligations of a lawyer will differ according to the nature of the cause in question. In a civil cause, where two people are engaged in litigation over their supposed rights, a lawyer cannot in conscience defend the case of one whose claim he knows to be quite unjust. If "A" wants to sue "B" for $1,000, and the lawyer consulted knows that "A" has no case in any just sense of the word, the lawyer may not undertake "A's" case. If he wins the case he is unjustly cooperating in the injury done to "B." If he loses, he unjustly robs "A" of all the useless expenses his advice has entailed. But the case you give is not a "civil," but a "criminal" cause. It is not one man in litigation against another. It is the State against one charged with crime. And here the position, from the lawyer's point of view, is very different. Now for your suppositions.

1248. Supposing the man tells the lawyer that he is guilty, yet asks him to defend him and try to secure his acquittal. Is the lawyer justified in going on with the case and saying nothing?

Yes. Whatever the criminal may plead in court, his advocate may plead. For it is really the criminal pleading through his advocate. And every criminal, even knowing himself guilty, may plead "not guilty" for purposes of law. The burden of proving guilt is on the State; and the State wants to have that responsibility, in order that strict justice may be secure; that there may be no miscarriage of justice; and that no one may suffer from excessive severity at its hands. So much so, that the State will often assign the task of defense to a lawyer, if the criminal is unable to provide one for himself. Though the lawyer in question, even as the criminal, knows that his client is guilty, the verdict must be given by the judge and jury. And not only is the lawyer to avoid pronouncing a verdict; he is not even present as a witness. He is there on behalf of the accused, to force the court and witnesses to prove their case; and to show, if possible, that they have failed to do so.In his defense of his client, of course, the lawyer is morally forbidden to use any but honest and just means. He may not employ trickery, fraud, false witnesses or documents, or lies of any kind. You may say that he knows his client to be guilty, yet keeps quiet about it. That is not a lie. A lie is to say what is not true. Not to say what is true is quite a different thing. And whilst the lawyer may not say what is not true, he may keep silent about what is true on the particular point of his client's guilt, even as the accused himself is allowed to keep quiet about it and plead "not guilty." Nor is such silence a frustration of justice. It is to safeguard the administration of justice by the State.

1249. If the client says nothing, but the lawyer has strong evidence of his guilt from other sources, can the lawyer go on with the case, and say nothing?

Yes. As I have said, whatever it is lawful for his client to plead, he may plead. And he is there for the defense of his client; not as a witness against him. Of course those from whom the lawyer got evidence of the man's guilt might be called as witnesses. The lawyer's duty then would be to abstract from his own opinion, and do his best to show, if possible, that the evidence given by such witnesses does not amount to strict proof.

1250. If, instead of saying nothing, the client protests his innocence all along, and will not depart from it, yet the lawyer has strong evidence of his guilt from other sources, may that lawyer go on with the case?

The same answer still applies. He is morally free to do so. Remember that we are dealing with criminal causes here, and not with civil causes. And keep in mind the principle that what is lawful to the defendant is lawful to his advocate. The accused man has a perfect right to defend himself with the help of the legal knowledge possessed by the lawyer he employs. And the lawyer is not present as judge or witness; nor, for that matter, in any personal or private capacity. He is there to provide the legal knowledge required by his client, a knowledge to which the accused has a perfect right in his efforts to force the law to prove its case before it proceeds to a conviction.

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MORE FROM VOLUME 3

• About the Author
• Preface
  - Msgr Fulton J Sheen
• Author's Foreword
  - Dr Rumble, MSC

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