The duty of the lawyer in a criminal case is a dual one. He must defend his client competently and conscientiously, but he must also uphold and advance the interests of justice. His duty to his client must be balanced against his duty to promote the interests of justice.
It is the duty of every defence lawyer to try to ensure that his or her client receives a fair trial and that the other fundamental constitutional rights of his or her client are not violated.
The constitution also provides that every person charged with a criminal offence has a constitutional right to be represented at his or her own expense by a legal practitioner of his or her own choice. The denial of this right is a breach of a fundamental right [s 18(3)(b)] and a violation of this right is a ground for appeal. For example, in the case of Mushayandebvu 1992 (2) ZLR 62 (S) a woman had engaged a lawyer to defend her but he was unavailable on the day of the trial due to previous commitments. The prosecutor knew that she had engaged a lawyer who was unavailable for the trial but did not inform the court about this. The woman, who was unsophisticated, did not herself tell the court about this. She was convicted. The appeal court set aside the conviction on various grounds, one of which was that the woman’s constitutional right to be represented by a lawyer at her own expense had been breached, as the prosecutor should have told the court that she had engaged a lawyer who was unavailable on the day of the trial; it was unfair to expect an unsophisticated accused to realise that she could bring to the court’s attention this matter.
The legal practitioner defending a client has a duty to defend him to the best of his abilities, using his skill and judgment. The degree of devotion to the client's case should in no way depend upon the amount of remuneration for the work. The person assigned a lawyer under the pro deo system is entitled to the same extent of professional dedication to his case as the client who is paying the normal commercial rates. Many murder cases are defended under the pro deo system. Even though the fees for pro deo work are meagre, the lawyers assigned to do this work are duty bound to defend their clients properly. After all their clients are usually charged with offences which could attract the death penalty. They are expected to prepare for these cases assiduously; a cursory, last minute interview of the client, a rapidly drawn defence outline and a superficial presentation of his case at the trial do not constitute a fulfilment of the professional duty of the defence lawyer. Mr Justice McNally has said this about pro deo work:
The conduct of the defence in such cases is the highest test of the legal integrity of a practitioner. It is all too easy to approach these cases, especially on circuit, on the basis; 'How many first day fees can I cram into a week so as to make this an economically viable circuit?' It is all too easy to go down early on Monday morning instead of sacrificing your week-end.
This sort of approach is totally unethical and downright wicked. The defence of a man on trial for his life, or facing a long term of imprisonment, is one of the most solemn duties of a [legal practitioner].
1988 Vol 1 No 2 Legal Forum 3
The same article relates details of a number of murder cases where it is quite clear that the pro deo lawyers failed to fulfil their professional duty towards their clients. One of the worst of these cases is that of Nyandoro 1987 (2) ZLR 66 (S). Here the defence lawyer pleaded on behalf of his client that he was guilty of murder with actual intention. (The client himself should have pleaded to the charge.)
The plea tendered by the defence lawyer entirely overlooked the fact that in the defence outline there was a completely clear assertion that X lacked intention to kill. Two statements in particular in the outline showed this. They were:
"I did not intend to kill anybody."
"I fired a shot at him to frighten him away."
The defence lawyer neither called his client to give testimony nor did he call any defence witnesses. He simply made the quite extraordinary statement that the only "evidence" he was calling was the defence outline. (The defence outline does not constitute evidence; it is only a summary of the evidence the defence intends to produce.) The defence lawyer also said that he was tendering the outline as "admissions". With a “defence” like that, it is not surprising that X was convicted of murder with actual intent and sentenced to death. Equally unsurprisingly, the Supreme Court on appeal set aside the conviction and ordered a retrial on the ground that X had not had a fair trial.
The defence lawyer must not only present his client's case conscientiously but also fearlessly and without regard to any unpleasant consequences which may stem from defending that particular person on that particular charge. The defence lawyer is duty bound to defend clients client vigorously and conscientiously and must not be deflected from doing his duty where his client been charged with a crime which engenders disgust or abhorrence amongst the public or his client belongs to a highly unpopular political movement. Marshall Hall has this to say:
He was representing a man in Manchester who was alleged to have allowed prostitutes to congregate and solicit in his theatre. A Manchester clergyman implied that it was shameful for the MP for a religious town like Southport to be the advocate for such a man. Marshall replied in vigorous language: ‘Barristers are public servants and may be called upon just as a doctor may be called upon to operate on a man suffering from a loathsome complaint.’
Famous Trials of Marshall Hall” by Edward Marjoribanks (first published 1929; republished by Penguin, 1989) at p 171.
On duty to represent client even if you believe he is guilty, see Richard du Cann “The Art of the Advocate” (Penguin, 1964) p 39.
The advocate must not impose his opinion of the facts upon the client, though he may feel obliged to press it pretty strongly.
He quotes Dr Johnson:
Sir, you do not know the cause to be good or bad until the Judge determines it...
and Baron Bramwell:
A man’s rights are to be determined by the court and not by his attorney or counsel... A client is entitled to say to his counsel: ‘I want your advocacy, not your [decision]; I prefer that of the court.
To present a client's case in the best possible light does not necessarily mean trying to get an acquittal. It means presenting a case in the way in which best serves the client's interests. The job of the lawyer is to present a realistic case on behalf of his client. If the lawyer believes that the best interests of his client would be best served by a plea of guilty, he must advise the client accordingly. He will try to persuade him that there is such strong evidence against him that the unnecessary contesting of the case will result in the aggravating features of the case being emphasised with the likelihood that a stiffer sentence being imposed. He will point out to him that if he pleads guilty, there is a chance that he will obtain the maximum amount of mitigation in so doing. This does not mean that the lawyer can override his client's instructions merely because he does not believe his client's story or thinks that it will be difficult to prove this story. If therefore at the end of the day the client insists on putting forward a story which appears to the lawyer to be incredible, the lawyer is nevertheless duty bound to put that story forward before the court in its best possible light. He must argue it as if he believes it. The defence lawyer must make a critical assessment of his client's case, but does not pass final judgment on it. It is a disservice to his client and a gross dereliction of his professional duty for the lawyer to present his client's case in such a way that it is patently obvious that he has no faith in the case he is arguing. It should always be remembered that sometimes the most absurd-sounding story turns out to be true. The truth is sometimes stranger than fiction.
In the case of Mutsinziri 1997 (1) ZLR 6 (H) the court stressed that where a legal practitioner representing an accused person, whether pro deo or on a private brief, has difficulty taking instructions from the accused, he is nevertheless enjoined to do all he can to represent the interests of his client. It is utterly inimical to those best interests for him to state in open court that he is having difficulty and wishes to be excused. In the very limited circumstances where a legal practitioner may properly withdraw from further attendance upon the accused in the course of proceedings, he is bound to explain himself, in the most discreet way possible and in a manner least calculated to prejudice his client, not by a dramatic announcement in open court.
As regards the duty of the defence lawyer to apply for a postponement of a case where he has not had enough time to prepare the defence case properly, see under “Postponement of cases” in Section 2.
The legal practitioner’s duty towards his client must be balanced against the duty owed by him to the court and to the administration of justice. The lawyer's duty to his client is in fact circumscribed by his duty to the court.
The legal practitioner's duty to promote his client's interests must never transcend his duty to promote the interests of justice and truth. He has a paramount duty to the court as an officer of the court to ensure that justice and truth are advanced. His duty to uphold the interests of justice means that he must not seek to obtain an acquittal at all costs; he must never seek to obtain the acquittal of his client by the use of lies and deception.
The first and foremost duty owed by the legal practitioner to the court is that of absolute candour. A lawyer must never knowingly mislead the court.
The deliberate misleading of the court by a legal practitioner is highly improper. In Khumalo HB-70-91 the legal practitioner had cited a case on sentence and, despite being queried on the point, was adamant that the sentence therein was six months' imprisonment; in fact it was six years. The review court said that it was highly improper for counsel to cite cases with which they are unfamiliar or to misquote them in order to try to mislead the court. In Kawondera v Mandebvu S-12-06, a legal practitioner’s duty to disclose authorities adverse to his client was held to be part of the diligence expected of a legal practitioner. This diligence includes checking of authorities cited by the other side which should never be accepted at face value.
The fact that the defence lawyer thinks his client's defence is probably a tissue of lies does not mean that he cannot seek to defend him on the basis of his client's instructions.
What can a defence lawyer do if the client confesses to him that he is guilty? The first thing to do is to check to see that the admission of guilt is genuine and properly based. Thus for instance the accused may sometimes confess to a crime that he did not commit in order to protect the real wrongdoer such as his son or his wife. Secondly the accused may be admitting to a crime when in fact all the essential ingredients of the crime are not present or the accused has some defence to the charge that the accused did not realise he could raise. Another issue may be the mental competence of the accused who is admitting guilt. If the defence lawyer strongly suspects that the accused person may be mentally disordered, he or she may decide that the accused person should be subjected to psychiatric examination to determine whether that person is mentally disordered at the time he committed the crime. In cases of murder, the practice is that even if the accused pleads guilty a not-guilty plea is entered and a full trial will then ensue.
If a lawyer convinced that his client is admitting his guilty truly and voluntarily and has no defence, what then can he or she do?
In our system a person is presumed to be innocent until his guilt is proven beyond reasonable doubt and he has been convicted by the court. X may indeed be guilty but unless the State can produce sufficient evidence to prove his guilt he is entitled to go free. Thus the lawyer can still defend a client who has told him or her that he is guilty.
What, then, of the situation where the client confesses his guilt to his lawyer before the trial commences but nonetheless wishes to plead not guilty to the charge? In a system where there is no requirement that a defence outline must be put in at the beginning of the trial, the lawyer can still advise a client whom he knows to be guilty to plead not guilty where it is clear that the State does not have the evidence to prove his guilt. If this situation were to arise in our system, it would seem to be proper for the defence lawyer to advise his client not to put in a defence outline and to plead not guilty, knowing that the State will be unable to prove its case, just as he could properly advise a client not to make a warned and cautioned statement in these circumstances. Under our present system, however, the accused is expected to outline the nature of his case at the beginning of the trial, and the court may draw adverse inferences if he fails to do so. A lawyer should inform his client of this fact before agreeing to represent him on a plea of not guilty.
There are, however, certain matters that can be put in a defence outline without breaching the duty owed to the court. For instance, if there were no witnesses to the crime committed by X and the complainant wants to ensure that X is convicted so he has given some persons money to testify that they saw X committing the crime, these alleged facts could be incorporated into the defence outline. If the argument is that the court trying the case does not have jurisdiction to try the matter, this could be incorporated into the defence outline although strictly this is a matter for legal argument rather than something that should go into the defence outline.
The lawyer may still argue that:
- the court does not have jurisdiction to try the case.
- the indictment is defective
- the evidence that State seeks to lead is inadmissible
- the evidence produced by State is insufficient to prove guilt.
The lawyer may also cross-examine witnesses, such as identification witnesses, to test the reliability of their evidence.
The lawyer may not suggest anything to the court which is contrary to what he knows from his client. He or she may not lie to the court or produce false evidence. He or she cannot draw up a defence outline containing evidence which he or she knows to be false. If the client insists that the lawyer should put forward something which the lawyer knows to be false it is the lawyer’s duty to withdraw from the case.
The lawyer cannot maintain that it was someone other than the accused who committed the crime.
In court the defence lawyer cannot make submissions that are contrary to what he had been told by his client. If he had been told by his client that he committed the crime, he can cross examine an identification witness to test the reliability of his identification of the accused but he cannot put questions to the witness that he knows to be false like “I put it to you that you could not have seen my client as he was not at that place on that day.” He cannot call someone to testify that client was elsewhere when crime when client has told him that was at scene.
Although the defence lawyer must not deliberately mislead the court this does not mean that he is under an obligation to volunteer all he knows about his client. If, for example, it becomes apparent that the State is not aware that X has a previous conviction, his lawyer is not duty bound to disclose that conviction. But he cannot say in his argument in mitigation that his client has no previous convictions whatsoever. He can simply not mention the matter at all or he may say that the State has not proved that his client has any previous convictions.
Apart from balancing his duties towards the court and his client, a lawyer must ensure that he does not have any interest (material or moral) which is adverse to his client’s interest. Acting for co-accused in a criminal case can cause difficulties if, in the course of the trial, their interests diverge. Generally a lawyer should try to avoid having to act for both parties in such circumstances. A lawyer who finds that there is a conflict in the defence of two accused whom he is representing must immediately withdraw from the defence of one of them, allowing himself free rein to defend the other. He should also consider asking for a separation of trials, to avoid the duty of cross-examining his former client.
In Banda 2002 (1) ZLR 475 (H) the legal practitioner placed himself in a position where he had a conflict of interests. The accused, a police officer, was charged with corruption. It was alleged that he had taken a bribe from three foreigners whom he had arrested on suspicion of car theft. A legal practitioner had interviewed the foreigners, and thereafter interviewed X. The same legal practitioner was called as a State witness during the X’s trial, at which he accused was represented by another member of the practitioner’s firm. It was held that the practitioner’s testimony was as a result of the privileged position he enjoyed from consulting the three foreigners and interviewing the accused. He should have decided who to represent. Representing the three foreigners and X was improper. The conflict of interest in this matter culminating in the practitioner giving evidence against the accused amounted to an irregularity actually resulting in a substantial miscarriage of justice. The proceedings were set aside.