Trollope & the Law
For the general public, criminal defense exercises all the tabloid fascination of the louche; defending a genuinely guilty client carries the extra frisson of a brush with Old Nick himself. Seated at a dinner party or with a drink in hand, the question a criminal defense attorney inevitably hears from a new acquaintance is "How can you defend someone who is guilty?" In fact, this is really two questions in one: How, consistent with legal and ethical obligations, can you advocate the innocence of someone whom you believe is guilty? And, why would you do so?
Lawyers, of course, have many ways of answering both questions, not all of them self-serving, and in that most humane of novels, Orley Farm, Anthony Trollope, the son of a failed barrister, did justice to most of them, almost despite himself. Indeed, at the heart of the story is the attorney's most challenging professional dilemma, presenting a full defense at trial of a client rightly thought by all involved to be guilty of the crime charged.
I say "almost despite himself" because Orley Farm is dominated by Trollope's scathing view of the legal profession in general and of the trial bar in particular. Trollope gave us his thoughts when, writing of the novel's impending trial, he complained,
There were five lawyers concerned, not one of whom gave to the course of justice the credit that it would ascertain the truth, and not one of whom wished that the truth be ascertained. Surely had they been honest-minded in their profession they would all have so wished, or else have abstained from all professional intercourse in the matter. I cannot understand how any gentleman can be willing to use his intellect for the propagation of untruth, and to be paid for so doing.
This, of course, assumes that there is something like "absolute truth" as opposed to what one might call "legal truth"--the story that emerges from the clutter of witness testimony as each side presents its case in the crossfire of the adversary system.
It is particularly appropriate to revisit the traditional defense function at a time when Britain's Labour government is engaged, in its own words, in a "root and branch effort" to "rebalance the criminal justice system in favour of victims, witnesses, and communities." As the recent exoneration of the Duke lacrosse players from spurious charges of rape demonstrates, this is a dangerous business at best. In particular, British defense counsel face increasing pressure from the government to treat "efficient adminstration of justice" on a par with the interests of clients, pressure that is evident, for example, in the Law Society's recently adopted Code for Advocacy which states that counsel has "an overriding duty" to ensure efficiency even in the face of the "client's best interests" This is somewhat disturbing since the duty of "zealous advocacy" like the presumption of innocence and the right against self-in-crimination, has always been thought to be among the hallmarks of the Anglo-American criminal justice system, distinguishing it from the continental "inquisitorial system." In the United States, these guarantees--including the right to counsel--are embedded in the federal constitution. In England, they are left to the increasingly malleable unwritten customary "constitution" and--heaven help us--to the vagaries of various United Nations and international conventions on human rights.
Thus, in the interests of "recalibrating" the criminal justice system, the Labour government now requires defendants to disclose the elements of their defense to the government during the investigative stage. Should they fail to do so, jurors may be instructed to draw an inference of guilt from their silence, arguably impinging upon the right against self-incrimination. And, if the defendant points to legal advice as an excuse for his silence at the police station, it may be treated as a waiver of the privilege of confidentiality between attorney and client. …