Criminal defence advocates, defending the accused persons who have been considered by the people to be guilty in heinous crimes, are at the receiving end many a time. The public at large, a section of lawyers and even some Bar Councils have a view that the defendant suspecting to be guilty of grave offences does not deserve to have the service of a defence lawyer at all.

Both in Kasab's case and in Nirbhaya case the advocate's body - the Bar Association - took a resolution not to defend the accused ones. In fact the proponents of this view, guided by some misconceptions about judicial niceties, fail to recognise that the court is dealing with nothing but the legal guilt rather than the factual guilt in a trial.

A State Brief's Reluctance to Defend an Appellant

• In an interesting incident, when a State Brief in Kerala - appointed for an appellant to prosecute a Criminal Revision Petition filed by him against his conviction and sentence under Section 302 of the Indian Penal Code (IPC) - sent a letter to the concerned Section of the High Court of Kerala stating that he had difficulty in conducting the case "by telling lies in the court" on his finding no merit on the side of the accused, the Division Bench of the High Court issued an order - 2015(2) KLT 964 - stating that:
  • The State Brief was neither expected to tell the court about the falsity or otherwise of the allegation against the accused.
  • It was not a duty of a lawyer to tell lies before the court while defending the accused.
     
• The court, however, made it clear in the verdict that:
  • A lawyer appearing for an accused is duty-bound to present the case for and on behalf of the accused with reference to the materials on record.
  • He need not and should not tell lies in the court.
  • The Counsel is expected to bring to the court the facts which will go to the benefit of the accused.
     
• An advocate shall:
  • Fearlessly uphold the interest of his client and shall not withdraw from his engagement for advocacy without sufficient cause.
  • Bear on the interest of his client by all fair and honorable means without regard to any unpleasant consequences to himself.
  • Defend a person accused of a crime regardless of his opinion as to the guilt of the accused.
  • Remember that his loyalty is mainly to the law which requires that no man should be convicted without adequate evidence.
     
• The defence lawyer's job:
  • Is not to dig up or decide the guilt of the accused.
  • Is to defend the accused vigorously based on the facts available on the case file and with valid reasons.
  • Is to defend by all fair means his client against the charges that are presented by the prosecution and nothing more.
  • Should not use anything other than fair means.
     
• Advocate Need Not Foreknow Defendant's Guilt
  • In a civil case:
    • It is good for the defence advocate to learn everything that the client knows about the entire set of events leading to the case.
    • The more he knows, the better he can strategize the arguments.
    • He must know too much to deal with the other side's move.
       
  • In a criminal case:
    • It is good for the prosecution to know everything relating to the crime from his witnesses to prove his case beyond a reasonable doubt.
    • The defence advocate in a criminal case does not have to prove anything except the weak points of the prosecution.
    • Therefore, the defence advocate should never ask the accused to tell him whether he/she is guilty in regard to the crime before defending it.

Defence advocate not to ask the accused whether he did the crime
If a client tells the advocate that he/she is guilty and the advocate considers it as true it may not be possible for the advocate to argue in court that he is innocent.

Defending someone who is known to be guilty is not a right thing for an advocate to do because in such an event he has to tell the court untruths knowing that the facts in the case are quite different from what he argues.  He cannot call him to give evidence which he knows to be false and he would become a party to his perjury.

The defence advocate, like the prosecutor, has a professional duty to not mislead the court. If the defence advocate asks the defendant a particular question suggestive of a particular answer already knowing that the truth is quite different, it will be tantamount to misleading the court. If the advocate believes that the client is guilty he cannot be effective at the hearing of the case. This is because of the duality between his duties; on one hand he has to tell the court truth and on the other hand he needs to tell lies to save his client.

So a defence lawyer should neither ask nor give a chance for the accused to tell whether he/she is guilty or not. Therefore in order not to mislead the court and to retain enough freedom to test the prosecution evidence, the best approach for the defence advocate is to keep away from knowing beforehand whether the accused has really done the alleged act or not.

The defence advocate however needs to know in detail the clear version of the story from the accused in regard to everything surrounding the crime, except whether he actually did the crime or not, so as to attack and undermine the prosecution strategies. Therefore the defence advocate in the first client interview itself should tell the client that he does not want the client to tell him whether he has done the crime or not.

Defence advocate duty is only to put the best defence
On the other hand, what the defence lawyer should do is use the facts before him/her to put on the best defence possible and leave the question of deciding the guilt of the accused to the judge.

Defence advocate's job is nothing but to expose the weakness of the prosecution which needs to prove things beyond a reasonable doubt. It is the duty of the court to determine the guilt based on the evidence produced by the prosecution before the court.

Defence advocate has a range of possibilities
In fact, the defence advocate can raise a range of strategies in challenging the prosecutor's version of the case if he can keep off from knowing the client's guilt.

In our criminal system it is up to the prosecution to prove the case and the defence has no job to disprove it. The only duty of the defence advocate is to pick holes in the version of the prosecution. If the picking of holes works well the defendant will be set free even on the basis of the benefit of doubt. Therefore a defence advocate should not ask what he does not need to know during his client interview so as to avoid the accused blurting out dangerous facts.

In the client interview, it is fair for the defence advocate to weigh the information relating to the case and tell the client whether there is probability for the prosecution to prove the offence or not so as for the defendant to make up his mind whether to plead guilty if he/she did the crime.

Conclusion
In our adversarial system of criminal prosecution, a defendant - irrespective of the grievous nature of the crime he is accused to have committed - needs to be represented by an advocate.

A case must have arguments from both sides – the prosecution and the defence - so that the judge can see the issue from both angles. Such a system may work well only when both sides are represented.

Therefore every criminal, however heinous his crime is, needs to be defended by a professional lawyer to ensure the high standard of proof - beyond a reasonable doubt - which our criminal system has set in.