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Tell Me All Your Secrets; Tell Me No More Lies

The relationship that is forged between a criminal defense attorney and her client must include trust. Ethical duties of confidentiality and the attorney-client privilege aside, if a military service member does not trust his attorney, the defense itself is likely doomed.

For persons that do not practice criminal law, a common question posed to the criminal defense practitioner is, “how can you defend someone if you know that person is guilty?” My response is “It’s a whole lot easier to defend him if he tells me he is guilty.” What do I mean by that? If the client is guilty, my job of defending him is made far easier if I know it. The people who pose that question to me are trying to pose a question that the poser thinks relates to morality. The short answer is: I don’t care if my client is guilty. But I do care if my client is guilty, but he lies to me about it. Again, the issue with a lying client is not that I am passing a moral judgment on him for lying and unequivocally my issue is not that he is guilty of a criminal offense. I care because lying to me hurts my ability to defend him.

From my experience, the number one reason that criminal defense clients lie to their attorneys about their guilt or about details of what happened is because they believe that the attorney will not fight as hard for them if the attorney knows them to be guilty. The criminal accused that believes his attorney is not going to fight hard for him if believed to be guilty needs to find a different attorney or come to realize that he is only hurting his defense. The second most common reason (and a close second) is the client that wants desperately to take the stand in his own defense to deny the crime and the client knows that if he tells his attorney that he committed the offense, that attorney cannot ethically assist the client in taking the stand and perjuring himself. A criminal accused that takes the stand and lies about committing the offense is not good at lying and that is probably a major factor in why he is a military accused as a preliminary matter. A criminal accused that takes the stand and lies and is found guilty is going to be punished more harshly than a military accused that relied on his right to silence.

The military accused that lies to his criminal defense attorney potentially jeopardizes his defense in a number of ways. First, because military discovery is largely controlled by the government, if the accused convinces his attorney that exculpatory evidence can be found in a certain source and the defense attorney has to obtain that discovery by government subpoena, if the evidence turns out to hurt the client’s case, the client has literally just caused the defense attorney to harm the client. An example exists if the client insists that he was not the one to forge the check and insists that he never even touched that check. If no fingerprinting analysis was performed previously and the defense attorney insists on the analysis but the client had handled the check (and maybe even forged the check), the defense attorney’s actions (brought out by his client’s lie) handed the prosecutor better evidence than he had before the client’s lie.

A second way that a military accused harms his defense by lying to his UCMJ defense attorney is by wasting time. Often the lying client will create work for the defense attorney that is chasing exculpatory evidence, evidence that just does not exist. That attorney’s efforts would have been better spent chasing a different lead or trying to explore evidence of a potential bias of a witness against the client.

A lying client can damage his own defense in a third manner by failing to contribute meaningfully in his own defense. The number one asset that the defense attorney has that the prosecutor does not is (or at least should be) is the military accused, especially if the client was present during the commission of the crime. There are details and information that the client has and he may be the only person to have it. Keeping information from the UCMJ lawyer prevents the attorney from doing their job and can harm the client.

Failing to disclose information to the UCMJ defense attorney is also a symptom of not trusting the attorney. If the client does not trust the attorney, other aspects of the representation are at risk for being compromised as well. Ultimately, in his criminal trial, the military client makes three decisions (other than the choice of counsel): who will sit in judgment of him, how he will plead in court (guilty or not guilty to each offense), and whether or not to testify or remain silent. Beyond that, the attorney is responsible for EVERY OTHER DECISION, including tactical decisions about the theory of the defense, what witnesses to call, if any, what witnesses to cross-examine, what to cross-examine them about, what defense to present, if any, what objections to make, if any. The list goes on and on. If the client does not trust the attorney, that attorney has no business making any of those tactical decisions. For me, understanding the culpability of the client will impact many if not most or even all of those decisions.

Some criminal defense practitioners prefer not to know if the client is guilty, but for me, that is like asking me to walk into trial with a blindfold. The military accused that is afraid of admitting his guilt even to his attorney needs to realize that he is only harming himself by undermining his defense from the outset and undercutting a relationship that at its core must be built on trust. Choose a law firm that will not judge you, that has as its sole focus your strongest defense.