Should I Confess Guilt To My Lawyer?

A lot of people have asked me over the years, you know, should a person tell their criminal lawyer the truth? That’s a very important question and I think it needs to be broken down into two things. Let’s, let’s take the example of a person who’s not just presumed innocent, but is actually innocent. He didn’t do the crime. If he or she retains a criminal or there’s no question they need to tell the lawyer the full story about what actually happened because they are in fact innocent, not just presumed to be innocent. The more vexing question is if a person’s guilty say of murder, or sexual assault or domestic assault and they hire me, for example, or any other criminal lawyer, should they tell the lawyer the truth? Well, that’s a very difficult answer, but that I’m going to give a difficult vexing question and it presents a lot of dilemmas from lawyers in Canada on this issue and I’m going to tell you the approach I take as well in these particular cases. So let’s assume the person’s guilty and should they tell him? So here’s a fundamental thing. First of all, whatever you tell your lawyer is solicitor client privilege, so you can admit anything to your lawyer really, that you’ve committed a past crime, for example, and you committed this particular crime and they can’t share that with anyone. So that’s between you and the lawyer. They’re bound by ethics under the law society and the rules of court. That’s solicitor client privilege.

Here’s the problem. If you’re charged with say sexual assault or domestic assault, for example, and you tell your lawyer that you did it. That truly and really restricts their ability to defend you, because now they’re not allowed to put you on the witness stand. They’re not allowed to say to the judge that you didn’t do it, they can still test the Crown’s case they can cross examine the complainant and try and create inconsistencies and improbabilities and things like that. But they can’t suggest the witness that you didn’t do it. It limits their submissions to the court. The Judge is going to know because you’re so limited in your cross. So it’s a very difficult situation. The practice I do if a client retains me in this situation, and they ultimately admit their guilt, and they still want to have a trial. I tell them, look, it’s better for you to get outside counsel because you’ve restricted me. I could have a very difficult time creating reasonable doubt now in your case, I can’t call you as a witness. I can’t suggest you didn’t do it. I can just probe and test the Crown’s case in a clever manner, create inconsistency or improbability but it so it just it just restricts. That’s my practice. If a client tells me the truth, that they’re guilty I say, look, it’s best you retain another lawyer, unless they want to plead guilty, of course, and then it’s my job to negotiate the best possible result. And by the way that’s a big part of criminal defense lawyers. Most people don’t realize this, like 90% of the work that criminal defense lawyers do on cases is negotiating, resolving plea deals for the best possible sentence for this offence and this offender. I mean the Crown always wants a million years in jail. It’s not it’s not always right and the judge makes the decision but it’s my job to present that in the best possible light. So it does restrict the defence. It’s not a good situation for me to represent the person that way nor for the person. So they may get the message with their next lawyer, not to say anything, hopefully to them and they can present the defence. Of course some people are going to lie let’s face facts. I’m not allowed to suborn perjury if someone comes to me and says they did it I can’t put them on the stand. I can’t let them perjure themselves. People have a misguided impression of lawyers. We do have ethics. We’re bound by ethics and this is a very important rule in society. I know other criminal lawyers they’ll still defend the person when they tell them they did it but you know, they’re not doing their best job. There’s no way you could properly represent a person once they’ve told you their guilty because it totally restricts your cross examination in court, due to the rules of ethics we’re bound by and the simple answer is, I think lawyers can tell that client to find another lawyer and the client can work accordingly. They can get the message about what they need to do to for the next lawyer. Hopefully, obviously, we don’t want to lie. I never want people lie. But with the next lawyer they really probably shouldn’t say anything and just let that lawyer properly defend them, not call them as a witness, but now they’re not restricted during their cross examination in any real way shape or form.