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Is it ethical to defend the indefensible?

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    I wanted to know your thoughts about the fact that people who are seen as 'monsters' in the eyes of society are defended in courts even though they have done things which are inexcusable such as murder (mass), rape (mass) etc.

    Furthermore, do you think not only should these people have the right to be defended, but should the barrister be able to drop the case, or not take it on, or tell the judge if they know their client is guilty?
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    Well the whole point of trials is to determine whether they are indeed 'monsters'.
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    Nothing is truly 100% indefensible, is it?

    There are always some arguments that could be used to either excuse the perpetrator or to gain sympathy for him/her's action.
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    Everyone deserves the right to a fair trial or a situation emerges where anybody can make an arbitrary claim to something being 'indefensible' and therefore not worthy of a fair trial. 'Guilt' can only be ascertained once all the facts are disinterred in a court of law.
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    Difficult question, I don't think I've ever thought about it before. The fact that they have a defense is weird to me. Surely if a proper investigation was carried out, then no defense would be needed at all? Why would you need someone to word your case out nicely if you may only be convicted if evidence is present?
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    (Original post by Kigreg)
    I wanted to know your thoughts about the fact that people who are seen as 'monsters' in the eyes of society are defended in courts even though they have done things which are inexcusable such as murder (mass), rape (mass) etc.

    Furthermore, do you think not only should these people have the right to be defended, but should the barrister be able to drop the case, or not take it on, or tell the judge if they know their client is guilty?
    First, if the defendant is being prosecuted in court for an alleged crime, then until the court's verdict, we don't actually know whether they "have done things" or are "monsters". They might be found not guilty. So even if you thought that the guilty shouldn't be represented, that wouldn't affect representation at trial.

    Secondly, barristers are already not allowed to put a false case. If the lay client admits the relevant act, the barrister cannot run a defence in court based on the lay client not having done it. They can suggest that the prosecution case is too weak to convict, but they can't, for example, ask questions of witnesses intended to suggest that the defendant didn't do it.

    Thirdly, the adversarial system only works because both sides are represented. It is based on the view that the best way to make an impartial decision - whether by judge or jury - is to hear both sides of the argument. If one side isn't represented, this doesn't work, so a new system would be needed - and in my view such a system would not be as effective at getting at the truth of the relevant matter, which is surely the real point?
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    (Original post by Dragonfly07)
    Difficult question, I don't think I've ever thought about it before. The fact that they have a defense is weird to me. Surely if a proper investigation was carried out, then no defense would be needed at all? Why would you need someone to word your case out nicely if you may only be convicted if evidence is present?
    Because different interpretations can be put on the same evidence, and it is a rare case for the evidence to be unequivocal. For example, an eye witness may claim to have seen the offence committed. A good barrister will be able to see any problems with the identification evidence and make these clear to the court e.g. if the witness did not have a clear view. It is then for the court to decide whether to accept the evidence.

    Ultimately evidence is just that - evidence, not proven fact.
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    (Original post by mja)
    Because different interpretations can be put on the same evidence, and it is a rare case for the evidence to be unequivocal. For example, an eye witness may claim to have seen the offence committed. A good barrister will be able to see any problems with the identification evidence and make these clear to the court e.g. if the witness did not have a clear view. It is then for the court to decide whether to accept the evidence.

    Ultimately evidence is just that - evidence, not proven fact.
    So then there should only be a group of completely unbiased people who look at all the evidence that was gathered. It bothers me that, depending on how good your lawyer is (i.e. how much money you can afford to pay), you may win/lose your case.
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    (Original post by Kigreg)
    I wanted to know your thoughts about the fact that people who are seen as 'monsters' in the eyes of society are defended in courts even though they have done things which are inexcusable such as murder (mass), rape (mass) etc.
    Another reason to require a good legal defence is to make sure that any conviction is beyond doubt. If an alleged "monster" isn't represented then it is much more likely that doubts will remain after conviction.

    Whereas if they have the best legal representation but are convicted nonetheless, this makes the conviction all the more convincing.
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    (Original post by Dragonfly07)
    So then there should only be a group of completely unbiased people who look at all the evidence that was gathered. It bothers me that, depending on how good your lawyer is (i.e. how much money you can afford to pay), you may win/lose your case.
    So this should be the role of the jury in a criminal trial. But they can't understand all the evidence without help. They won't know what questions to ask witnesses, and they won't be familiar with the issues arising from different types of evidence e.g. that the empirical evidence shows that even honest witnesses of identification who appear completely confident in the accuracy of their evidence are mistaken in a worryingly high proportion of cases. The jury also don't understand the law, so they won't necessarily look at the evidence in a way which relates it to the relevant legal test.

    The trial process is really just a way of putting the evidence before the jury in a structured way, which each side explaining why it is right and the other side is wrong.

    The alternative, without representation, is to risk convicting those defendants who are insufficiently intelligent or articulate to make their own case, which strikes me as much less fair than the current system, under which everyone charged with a serious offence is afforded good quality legal representation.
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    I consider it to be absolutely vital that we hold our judicial system sacred. Some of the greatest minds throughout history have conspired to develop the principles of a just society. Those principles must always be adhered to, even when to do so seems frivolous or unnecessary, if for no other reason than to simply uphold the integrity of our courts.
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    Everyone deserves the right to a fair trial otherwise the system will quickly erode by people making erroneous claims and using dubious evidence to convict people straight away. The police are there to convict you these days and not to protect, you could easily get chewed up by the system if lawyers did not exist to defend you.

    As for the barrister telling the judge if the client is guilty:- If the client tells the barrister they are guilty then the barrister can advise that they plead guilty but ultimately the barrister will and should follow the instructions from their client but should warn them about the chance of conviction or aquittal. If the evidence is stacked against the client then it is likely they will be found guilty anyway and they will get a harsher sentence than they would if they pleaded guilty, provided both lawyers are at least semi-decent. It would be unlikely that defendants of serious crimes would be represented by poor lawyers anyway. You have to be pretty high up to get a murder case, for example.

    If the client does not state they are guilty to the barrister and wants to plead innocent then the barrister should honour that wish. They can advise them that the chance of aquittal is low, if it is, but they have to follow their instructions. Otherwise they are doing the job of the jury/magistrates and that is wrong. The jury/mags are supposed to be representative and unbiased (although in practice magistrates are pretty useless and keen to convict).

    Also, the code of conduct for barristers states that they should take on all the work their clerks give them and not refuse anything. If they refuse cases then it undermines the system and you might get barristers only representing private clients who pay them more, this probably does happen on some level but the code of conduct is supposed to keep it in check.
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    But I just thought should there be a point at which people who have acted such heinous crimes such as Hitler (if he were to be caught) at which they should lose their rights such as being defended in court?
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    (Original post by Kigreg)
    But I just thought should there be a point at which people who have acted such heinous crimes such as Hitler (if he were to be caught) at which they should lose their rights such as being defended in court?
    I don't really see the point. These anomalies are rare and if there is such insurmountable evidence of monstrous acts against them then their defence lawyer is not going to get them off a conviction and at least all the facts will be laid bare rather than having a witch hunt and leaving questions unanswered.

    There is a problem of dictators in other countries getting away with monstrous acts against humanity. Classic example is Pol Pot who was never prosecuted. That will only change once we reach a type 1 society and separate countries no longer exist. However, the UK justice system is good for now and I don't see a need to drastically change it.

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Updated: July 2, 2012
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