In Defense of Lawyers Playing Their Part

Michael Huemer writes about why he believes it’s wrong for lawyers to pursue unjust legal outcomes.

It's a good article, and one of the best defenses of this position I've seen. Still, I think this argument is mistaken. The reason why we require lawyers to fight for "their side" even if they believe they're in the wrong is to minimize the opportunity for bias.

Imagine if all trials were bench trials, decided by only one person as the judge. Even if they're taught to be as objective as possible, there would still be significant concerns about unconscious bias. One person only has one set of experiences to draw on, which is necessarily not very representative of the full range of experiences. And in some ways this problem becomes worse the more training the judge is given, since it filters the pool of valid people down to a small subset of the population.

The chosen solution to this is to instead have the important cases decided by a jury, randomlyIt's not actually random in practice, but in theory it should be. selected from the population. The jury is then instructed that they must come to a unanimous decision, and are allowed an arbitrarily-long time to discuss the case. This prevents a tyranny of the majority, while still allowing a diverse range of perspectives to have a voice in the discussion. Any prospective juror who seems likely to be so biased that they would vote in a predetermined way regardless of the evidence is removed from consideration during voir dire. (This step does reduce the representativeness of the jury, but the assumption is that for any group of people who hold a particular perspective, there will be members of that group who are not so biased as to be selected out.Lawyers do tend to use some pretty underhanded tactics to benefit their side here, which kind of kicks the problem up one level. Still, this pretty much has to reduce the overall bias, even if it doesn't go to zero. Since both sides are limited to a certain number of unconditional juror removals, this has the effect of removing outliers while keeping the average views the same.)

But this doesn't solve all problems. The jury is still only human, and if they're presented with facts that are biased in only one direction, they're more likely to vote in that direction. If lawyers were instructed to present an unbiased case to the jury, this would provide a significant incentive for the less ethical lawyers to not do as instructed, using a misleading presentation of data to bias the jury towards their side. This is a bad incentive to give people. It would also lead to copious accusations from the losing side that the other side's lawyer was presenting biased facts, which would necessitate some process to sort them out every time, even if both lawyers were perfectly objective.

So instead, we tell the lawyers to go nuts. Be as biased as possible, and, as long as they're equally skilled and there aren't background factors that favor one position over the other, this ensures that each presented position is equally far from the truth. The jury now has a fair overview of both sides of the case, without a malicious lawyer being able to advantage one over the other.In practice the justice system actually only has this policy for the defense; prosecutors are expected to withdraw the case if they believe the defendant to be innocent. I think this is due to a desire to bias things towards the defense, as per maxims like "innocent until proven guilty" and "it is better that ten guilty persons escape than that one innocent suffer".

Michael provides 5 arguments in favor of this position - that lawyers are obligated to do their best even for a client they believe is guilty - then attempts to refute them all. I'll go through them individually.

2.1. The epistemological problem

Michael argues that lawyers can know with high confidence that their clients are guilty, giving the example of Benjamin Courvoisier. Thus, "I'm not sure so I should just defend my client" is not an excuse.

In the case of Benjamin Courvoisier, Benjamin confessed to the lawyer, presumably under the expectation that the lawyer would not publicly share this information. If lawyers were duty-bound to share any private confession given to them, all but the dumbest criminals would simply stop giving private confessions. The overall effect on convictions would be negligible.

But cases like Benjamin Courvoisier are few and far between. Using this example to argue that defense attorneys should recuse themselves for having a general belief that their client is guilty strikes me as a motte-and-bailey; most lawyers who have a suspicion will not have a clear-cut confession. Even if you support the lawyer sharing a confession like that of Benjamin Courvoisier, it does not follow that a lawyer should also recuse themselves if they only have a suspicion.

In a case where a lawyer thinks their client is guilty but is not certain, we most certainly want them to set aside that suspicion. The whole point of having a trial, with multiple sides presenting evidence, a fair jury to evaluate that evidence, and a judge to ensure the process is followed correctly, is to prevent one person from having the ultimate say over the verdict. If defense lawyers were to have the power to "give up" the case, they would have unilateral power to find the defendant guilty. This defeats the purpose of having such a system in the first place.

We also want to protect the defendant's ability to safely provide evidence to their lawyer without risking incriminating themselves. If a defendant is innocent but knows that a certain fact might make them look guilty, a justice system that functions as Michael advocates would encourage the defendant to not share this fact. This would ultimately hurt their case if the prosecution gets ahold of the same evidence, as the defense would not be able to adequately prepare.

(Indeed, even under the current system with attorney-client privilege, defendants frequently lie to their attorney to try to make themselves look less guilty, out of a mistaken belief that the lawyer will tell someone else or care less about defending them.)

Remember that there's no clear line between "evidence" and "confession". What if the defendant says they did own the gun in question, and they did shoot it at the person who died, but refuses to say that they're guilty of murder? Is that a confession? What if the shooting actually wasn't the cause of death?

And what about false confessions? These are frequent, with causes ranging from police abuse, to an innocent who believes more innocents will be charged if nobody confesses, to weirdos who want to take credit for other people's crimes, to a lawyer from the so-called "innocence project" seducing someone in order to convince them to make a false confession to exonerate one of the lawyer's clients, to police abuse.

Ideally, all confessions should be subjected to the evidentiary process and the full scrutiny of the court.The current system is not great at this, given the high incentives for innocent defenders to submit a guilty plea anyway. But a lawyer under Michael's system would have no such obligation, and may just take such a confession at face value.

We also must consider the social incentives. If a case is highly publicized and the defendant vilified in the media, Michael's proposed system would increase the chance that an innocent defendant would be found guilty. What defense attorney would want to represent Lucy Letby if doing so were an admission that the attorney believes her to be innocent?Of course similar risks apply to the jury, and this is an argument in favor of keeping their identities private. But jurors don't have to regularly interact with the legal system after their one case, or can they be interviewed about the case while it's ongoing, so it's easier for them to avoid publicity and criticism for their verdict.

In effect, Michael is arguing that we should replace one method of deciding a case (both sides presenting extensive evidence and arguments to a jury who deliberate until they reach agreement) with a different method "if enough lawyers aren't comfortable publicly vouching for this person's innocence, they're found guilty without a trial". This seems unlikely to lead to more just outcomes on average.

I think Michael is failing to consider the fact that a group of people can be more accurate, on average, than any individual in that group. He writes:

If you actually bought this argument, wouldn’t it follow that we should dismantle the whole criminal justice system since no one can know whether a defendant is guilty (why would the ignorance be limited to lawyers?)? Juries are not supernatural oracles; the only way they know who is guilty is by looking at the evidence presented in the trial. The defense lawyer has that same evidence and often more.

Yet work on forecasting and the wisdom of crowds shows that this is plainly not true. A jury of 12 people will, on average, be more accurate than any single juror.

2.2. The lawyer as friend

Michael's argument seems correct here, no objections. The belief that a person should be permitted to help cover up a murder simply because it was committed by a friend is straightforwardly incompatible with a just society.

2.3. Faith in the system

Michael claims that the ability to hire a better lawyer means that we can't simply trust that the system will always return the correct verdict. This is true of course, but irrelevant. Nobody who defends the current system claims that it's 100% accurate; guilty people are set free and innocent people convicted all the time. The relevant question is whether putting the power to intentionally lose in the hands of a defense attorney would lead to greater or lower accuracy.

Michael does have a good point that being able to pay more to hire a better lawyer is in some sense unfair. Perhaps there are better systems we could employ, such as having all lawyers in criminal trials provided by the state, with a record of their win rate in prior cases and the state attempting to give both sides equally skilled lawyers.

But saying "the system is unfair with regards to being pay to win, therefore the system would be better if lawyers refused to represent clients they believe are guilty" is a non sequitur. He doesn't show why the conclusion should follow from the premise.

2.4. Rule consequentialism

By assuming that lawyers recusing themselves from cases with defendants they believe are guilty is "serving justice", Michael is begging the question. Of course lawyers should serve justice. But the whole point of the system is that there's no reason to trust that a single lawyer will be more accurate than the jury. It actually serves justice the most for lawyers to play their part and attempt to defend their clients.

I agree that no defense attorneys being willing to defend the defendant would be evidence that they're guilty. But it's not direct evidence; it's just popular opinion. Putting too much weight on this sort of evidence rapidly leads to self-fulfilling prophecies. A defense attorney isn't going to exhaustively research all the facts of the case before taking it, so if the media is saying "this person is guilty and horrible", this is likely to impact the lawyer's judgement. Not to mention what other lawyers think; it's a normal human tendency to form opinions based on what people around you think, so a lot of lawyers are going to end up reasoning along the lines of "well the other 50 lawyers refused to defend this person, so they're probably guilty".

2.5. The right to a fair trial

First, Michael once again begs the question by simply assuming that a right for guilty people to have a lawyer represent them would makes the system less reliable rather than more. I think that almost every defender of this right would hold that the opposite is true.

Secondly, Michael takes an interesting perspective on what it means to commit a rights-violation.

Failing to represent someone, or refusing to defend the position that your client wants you to defend, does not violate his rights, since you are not stopping him from hiring someone else. (Compare: If I don’t publish your book, I’m not denying your right to free speech.)

Taken literally, I agree with this, of course. But the implication is that it's still not a rights-violation if everyone refuses; Michael brought up this possibility in the last section. Indeed, lawyers refusing to represent someone only accomplishes anything if enough of them do so to sway the results of the trial. If you posit a right to representation, then everyone refusing is clearly a violation of that right, since the person in question is not getting the representation they deserve.And the same could be true to a lesser extent if all lawyers above a certain quality or below a certain price refuse.

3. Lying vs. Misleading

Michael's last argument is, I believe, his best. It's well accepted that lawyers should not lie to the jury, fabricate evidence, etc. Yet a lawyer who believes their client is guilty and tries to convince the jury that they're innocent is paltering, which is also generally considered unethical. So why is one encouraged and the other disallowed?

The problem is that there's no clear line of what counts as paltering and what doesn't. Our social dynamics are fundamentally structured around misleading each other in ways both large and small. People who aren't Brad Blanton do not choose their sentences by asking themselves "what would maximize the accuracy of the recipient's picture of the world". Even refusing to answer a question is an attempt to prevent the asker from having information you don't want them to have; and if you know they'll assume a different explanation for your refusal than the real one, it's an outright attempt to mislead.

Trying to prevent lawyers from paltering would run into interminable debates about what counts as "too misleading". Often these would wrap around back to questions of the defendant's guilt and related facts that are in dispute, since lawyers from both sides would frequently have an incentive to imply that something incriminating or exonerating occurred without stating it outright.

To be more specific, I disagree with Michael's premise #5. Deception is not a simple binary of "literal lies vs. maximally informative statements". One thing can be more misleading than another while both are nonzero, and, all else being equal, the immorality of the action increases as the severity of the deception increases. We have to draw the line somewhere in court, and the current line seems like a reasonable compromise between ability to objectively verify whether something was deceptive and preserving the integrity of the court's decisions.


I think this line is the key to why Michael and I disagree:

The question here is a question of individual ethics: if you’re a lawyer, what should you as an individual do? The question is not what the government should do, whether there should be a law against advocating unjust positions, etc. (This seems to be one of the hardest points for people to grasp; I suppose people can’t imagine a lawyer acting on his individual conscience.)

Michael is approaching this from an individualistic standpoint, of "assuming nothing else about the system or anyone else changes, what should I do?" But the real world doesn't work like that. People don't defect in every collective action problem; we modify our behaviors in response to others' behavior, and our predictions of what they're going to do.

This is the exact same reasoning as most people use to justify why theft is wrong. Everybody values their own happiness more highly than that of a stranger, so from the naive game-theoretic framing, you should just steal stuff from others, because doing so better satisfies your values. But you don't make your decisions in a vacuum; other people tend to reason similarly to you, and society has the ability to impose laws onto everybody equally. A rule of "no stealing" (regardless of whether it's implemented via government force or everyone's personal moral codes) results in overall better outcomes for everyone in that society.

A lawyer who believes their client is guilty will locally maximize their values by forcing a guilty verdict onto that client. But a justice system where all lawyers behave this way will result in worse outcomes.

RSS feed