lawyer duty when presented with evidence of a crime

The job of a criminal defense lawyer is to defend you against the charges that are presented. When charges are brought, there only has to be "probable cause" that you might have committed the crime. At trial, the prosecuting lawyer's job is to prove "beyond a reasonable doubt" that you've committed the crime for which you're being charged.

Full Answer

What is the responsibility of a lawyer?

Advise and represent clients in courts, before government agencies, and in private legal matters. Communicate with their clients, colleagues, judges, and others involved in the case. Conduct research and analysis of legal problems. Interpret laws, rulings, and regulations for individuals and businesses.

What are the duties of a lawyer to his client?

As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.

What are the responsibilities of the defense attorney during or after the trial?

Investigating the case and interviewing all witnesses. Research pertinent case law, crime codes and statutes. Build defense and come up with effective case strategy. Negotiate with prosecutors to arrange plea bargain.

Can a lawyer lie about evidence?

As such, a lawyer may not submit false evidence to a court or assist a client in doing so. When a lawyer learns that a client intends to commit perjury or to offer false testimony, the lawyer should counsel the client not to do so.

What are 5 responsibilities of a lawyer?

Duties of a lawyerProviding legal advice and guidance.Writing contracts.Meeting clients (individuals or businesses)Attending court hearings.Reading witness statements.Collating evidence and researching case studies.Keeping up to date with changes in the law.Representing clients in trials.

What are the rights and duties of an advocate?

Rights of an Advocate under Advocates Act, 1961Right to Practice (Section 30)Right to Pre -audience.Right to freedom of speech and expression.Right to enter any court and observe the proceedings.Right against arrest.Right to meet with accused.Right to secure the privacy of the communication.Right to take the fee.More items...•

What are the duties of defense lawyer?

A criminal defence attorney is responsible for putting together an effective defence and developing a winning strategy for their clients. As the accused's advocate and drafter, he must prepare, file, and argue on their behalf. Negotiating a plea bargain with the prosecution is part of a lawyer's job description.

What are the ethical duties of a defense attorney?

The primary duties that defense counsel owe to their clients, to the administration of justice, and as officers of the court, are to serve as their clients' counselor and advocate with courage and devotion; to ensure that constitutional and other legal rights of their clients are protected; and to render effective, ...

What is the most important role for a defense attorney?

First and foremost, the most important job of your criminal defense attorney is to fight for you and defend you in the court of law. According to the American Bar Association, the primary responsibility of a criminal defense attorney is to advocate for their clients and defend their rights.

Can I sue a lawyer for lying?

No matter what name the agency in your state goes by, they will have a process you can use to file a complaint against your attorney for lying or being incompetent. Examples of these types of behavior include: Misusing your money. Failing to show up at a court hearing.

What happens if lawyers lie?

In addition to possible State Bar discipline for violating these rules, B&P section 6128 provides that a lawyer is guilty of a misdemeanor when a lawyer engages in an “any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” The punishment for a violation of B&P ...

Can lawyers refuse to defend someone?

The short answer to this is yes, an attorney can absolutely refuse to defend someone. While lawyers can refuse to defend someone, they are not likely to do so based on whether they are guilty or not guilty. You should have a good relationship with your lawyer because they are the one fighting for you.

Is A Lawyer Obligated To Report A Crime?

In general, lawyers are allowed to report wrongdoing, but they are not always required to do so. (Rule 1. A lawyer may not counsel or assist a client in conduct the lawyer knows is fraudulent or criminal.

What Are Lawyer Responsibilities?

Legal counsel and representation in courts, before government agencies, and in private disputes.

What Are Lawyers Required To Disclose?

In addition to the confidentiality rule, which applies to matters communicated in confidence by the client, it also applies to all information related to the representation, whatever its source is. It is prohibited for a lawyer to disclose such information except in accordance with the Rules of Professional Conduct or other applicable laws.

Who Do Lawyers Have A Duty To?

A lawyer’s ethical duties include three main ones: a duty to the court, a duty to their client, and a duty to obey the law as well. A lawyer’s dealings with third parties also fall under the law.

Does A Lawyer Have A Duty To Report A Crime Australia?

In addition to a lawyer’s duty to report his or her own (mis)conduct, 1 also requires other lawyers to report their own (mis)conduct.

What Are The Obligations Of A Lawyer?

As a lawyer, you are expected to protect and pursue a client’s legitimate interests within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all those involved in the legal system, including those who are involved in the legal process. It is largely self-governing for the legal profession.

Is It Illegal Not To Report A Crime?

The law does not require people to report crimes to law enforcement agencies in most cases. The law does not require people to report crimes in most cases. “Failure to report a crime” is not a crime in and of itself. It is possible to witness a crime occurring or occurring while it is occurring, or to witness it occurring.

What is the law on revealing evidence?

The lawyer who takes possession of evidence of a crime is faced with a serious dilemma. On the one hand, Bar Rule 3.6 (l) (1) prohibits a lawyer from knowingly revealing a confidence or secret of his client. Under the relevant facts here, the evidence held by the lawyer is such that its disclosure would seriously damage the client. This suggests that the evidence should be held in confidence. On the other hand, however, that same Rule provides an exception for disclosure permitted by the Rules or “required by law or Court order.” Similarly, Rule 3.7 (b) prohibits a lawyer from concealing “information” legally required to be revealed. Since the Maine Criminal Code in 17‑A M.R.S.A. § 455 and 753 makes it a crime to conceal evidence, the lawyer may be ethically obligated by Rules 3.7 (b) and the exception to 3.6 (l) (1) to reveal and deliver the incriminating evidence to the investigating authority.

What does an attorney represent?

An attorney represents a client charged with or under investigation for a crime. During the course of the representation, the client discloses to the lawyer that he possesses evidence of the crime which evidence incriminates the client (e.g., the fruits of the crime, the instrumentality of the crime such as a weapon, or a document implicating the client). The client asks the lawyer to take custody of the evidence or the lawyer offers to hold the evidence. In any event, the lawyer takes custody of the evidence for these or other reasons, intending to hold the evidence temporarily or permanently.

What is the purpose of the attorney-client privilege?

It was based on the lawyer’s oath and honor as a gentleman rather than any concern for the client’s welfare. [1] Although its rationale has since changed, the privilege still exists with equal force. The purpose of the rule under modern legal theory is to encourage complete and open communication between the lawyer and client in order to enable the lawyer to adequately represent the client without fear by the client of prejudicial disclosure of information communicated to the lawyer. Advocates of the rule argue that any erosion of this principle that permits or requires disclosure of statements or objects given to a lawyer by the client compromises this principle and turns the lawyer into an agent of the prosecution.

What is the case in Re Ryder?

In Ryder a lawyer representing a client in a criminal matter obtained from his client stolen money and a sawed‑off shotgun used in a robbery. The lawyer took the items from the client and placed them in the lawyer’s safe‑deposit box. The Court held in clear and uncompromising terms that notwithstanding the fact that Attorney Ryder had discussed the ethical implication of his proposed action with a former officer of the local bar association and intended after the trial to return the money to its rightful owner, Ryder acted with an intention to conceal the evidence and therefore had violated the Virginia Canons of Ethics.

What did the Alaska Supreme Court say about the right to counsel?

State, supra, addressed the question of whether a defendant’s right to counsel had been violated when his former attorney provided to the prosecution certain inculpatory physical evidence obtained by the lawyer from a third person during the course of representing the defendant. Although the Court did not directly address the ethical rules, the Court held that “a criminal defense attorney must turn over to the prosecution real evidence that the attorney obtains from the client.” Id. at 575 P.2d at 1210.

Does Maine law prohibit mere possession of evidence?

Second, an argument can be made that neither § 455 nor § 753 prohibits the mere possession by an attorney of physical evidence. Although there are no Maine cases interpreting either section, those statutes may not apply to mere possession by an attorney, but may require as an element of the crime a showing that the attorney intended to hide the objects from law enforcement officers. In other words it may be that the prosecution must prove that the attorney held the evidence with the intent of concealing it as opposed to using it for preparing the defense. Since mere possession by the lawyer cannot prevent a law enforcement agency from obtaining the evidence by a search warrant or subpoena, see e.g., In re January 1976 Grand Jury, supra, it logically follows that something more is required to prove “concealment.” In the case of Attorney Ryder, for example, that “something more” could have been the unusual and suspicious act of placing the evidence in a safe deposit box rather than holding it in his office like any other of his client’s papers. Such an act could lead to a conclusion that Ryder was doing more than just holding the evidence, he was attempting to hide it. Under the facts of that case, the Court could correctly have concluded that Ryder broke the law which prohibited the “concealment” of evidence.

Is a lawyer legally required to take possession of evidence?

At the outset, it is clear that the lawyer is under no ethical obligation to act as custodian of evidence for a client. Should, however, the lawyer elect to take possession of the evidence, for whatever reason, the lawyer will be confronted with complex and conflicting ethical and legal obligations. This opinion will, therefore, address the problem facing an attorney who in fact takes possession of physical evidence which incriminates a client and the disclosure of which to third parties could be damaging to the client.

Why do governments enact laws?

Governments typically enact such laws to protect persons who may be particularly vulnerable, such as children, the disabled, and the elderly. And some professionals have mandatory reporting requirements even where no vulnerable victims are involved.

What is it called when you make a false statement to police?

Making an intentionally false statement in response to a law enforcement question about an investigation is a crime often referred to as “misprision.”. When considering whether to make a report, remember that you do not have to be certain that a crime has been committed or will be committed.

What is mandatory reporting?

Further, depending on your job, you may, as an employee , have an obligation to report certain work-related suspicious activity to a government agency or the police. These duties are commonly called “mandatory reporting requirements.”.

Why is not requiring intervention or reporting important?

The reason for not requiring intervention or reporting is to leave policing to the professionals and to avoid turning all citizens into informants. For example, imagine taking a walk in the park on your day off. You see a masked man running toward you with a purse in his hand. He’s being chased by an elderly woman.

What happens if you tell the police the getaway car is red?

If you tell the police the getaway car was red, but the next day you remember it was white, that’s an honest mistake. While it’s alright to make an honest mistake in describing what you saw, you should not intentionally mislead the authorities. Providing a false report to the police is itself a crime.

Do you have to report a crime?

When you are at work, you may be subject to state and federal laws that impose certain reporting obligations that do not apply to the general public. If you work in a field covered by extensive government regulation, such as health care and education, it’s highly likely that you have some mandatory reporting duties. Governments typically enact such laws to protect persons who may be particularly vulnerable, such as children, the disabled, and the elderly. And some professionals have mandatory reporting requirements even where no vulnerable victims are involved. For example, environmental crimes like mishandling hazardous waste and financial crimes like money-laundering typically require witnesses to report what they know.

Do you have to report a crime to the police?

As a general rule, members of the public are not legally required to intervene when they witness a crime, nor must they report it to the police. In some situations, depending on the specifics of state law, they may make a citizens’ arrest, but that is an option, not a requirement. The reason for not requiring intervention or reporting is to leave policing to the professionals and to avoid turning all citizens into informants.

What does a client tell an attorney about?

A client might tell an attorney about their intent to tamper with witnesses or destroy evidence of a crime. They may tell the attorney that they will induce a witness to commit perjury by lying during their testimony, or they may ask the attorney to help them by presenting false evidence. In some cases involving financial crimes, ...

What is the exception to civil cases?

The exception may apply in some types of civil cases as well, such as when a client is planning to perpetrate fraud or another tort. (The line between criminal and civil cases can be blurred because some conduct, such as an assault, can result in both criminal and civil liability.) Some of the crimes that often arise in this context include crimes ...

What is the crime fraud exception?

The crime-fraud exception usually applies only to communications regarding ongoing or future crimes. Communications regarding past crimes remain protected under the privilege. Sometimes criminal intent can play a role in a court’s decision on whether the exception applies. If the client has a current intent, the crime-fraud exception probably ...

Can an attorney be subpoenaed for fraud?

If the crime-fraud exception applies, the attorney can be subpoenaed and must disclose the information. In some instances, the attorney must take it upon themselves to report the information. These generally include perjury (not necessarily when the client themselves gives perjured testimony), crucial evidence, ...

Do lawyers have to disclose perjury?

If a lawyer knows that a witness plans to commit perjury or has committed perjury, they have a duty to disclose this information to the court. However, they may not have a duty to disclose perjured testimony by their client. The lawyer instead may ask the court to allow them to withdraw from the case and allow the client to find a new attorney, ...

Does the crime fraud exception apply to a client?

If the client has a current intent, the crime-fraud exception probably applies. If the client does not have a fully formed intent but is asking about their options, the exception may not apply because their intent is only potential.

Do attorneys have to disclose information?

An attorney may or may not be required to reveal information that would prevent financial losses resulting from a crime. If the client tells the attorney about the location of a missing witness or victim, or a key piece of tangible evidence, the attorney sometimes will need to disclose that information.

What happens if a lawyer accepts a gun?

If a lawyer accepts the possession of incriminating evidence (e.g. “the gun”) from his client, he or she must voluntarily turn it over to the authorities. In this context, the lawyer’s duty of client loyalty and the attorney-client privilege do not operate to protect the client or the lawyer from the required disclosure.

What is the right of the public to prosecute criminals?

1. The right of the public to prosecute criminals and the obvious undesirability of having lawyers act as depositories of stolen items and contraband are paramount. Therefore, the acceptance of the gun by the lawyer, (or the acceptance of any incriminating physical evidence for that matter), requires affirmative disclosure to the Court.

What is the act of surrendering evidence?

The actual act of surrendering incriminating physical evidence to the prosecution should be done in such a way that the lawyer protects the client’s identity and no statements made by the client are disclosed with respect to the surrendered evidence.

What is the Colorado Code of Professional Responsibility?

The Colorado Code of Professional Responsibility (the Code) requires a Colorado criminal defense lawyer not to: “reveal a confidence or secret of his client,”. A lawyer also cannot: “ [u]se a confidence or secret of his client to the disadvantage of the client.”.

Does Colorado have a criminal defense lawyer?

While a Colorado criminal defense lawyer owes the highest duty of confidentiality to his client, Colorado law provides for possible criminal charges if the lawyer conceals or otherwise tampers with physical evidence without notifying authorities and without legal right.

Who is entitled to know about the prosecution's case before trial?

The defense is entitled to know about the prosecution’s case before trial.

What is the first item of discovery a defense attorney receives?

The police report is sometimes the first item of discovery that a defense attorney receives. records—for instance, police personnel records, medical records relating to injuries, and witnesses’ criminal records.

What does the Constitution require the prosecution to disclose to the defense?

The Constitution requires that the prosecution disclose to the defense exculpatory evidence within its possession or control.

What does the Constitution say about exculpatory evidence?

“Exculpatory” generally means evidence that tends to contradict the defendant’s supposed guilt or that supports lesser punishment. The evidence doesn’t have to strongly indicate innocence in the way that an alibi, for example, would. It’s generally enough that the evidence provides significant aid to the defendant’s case. So, information that affects the credibility of a critical prosecution witness—like the fact that the prosecution offered its witness leniency in exchange for testimony—is among the kinds of evidence prosecutors have disclose. ( Giglio v. United States, 405 U.S. 150 (1972).)

What is exculpatory evidence?

“Exculpatory” generally means evidence that tends to contradict the defendant’s supposed guilt or that supports lesser punishment.

What was the Maryland case?

Maryland was a 1963 U.S. Supreme Court case. In it the Court held that it’s a violation of due process for the prosecution to suppress evidence that the defense has requested and that is: favorable to the accused. In that case, Brady and Boblit had been convicted of first degree murder and sentenced to death.

What are the federal and state discovery statutes?

Federal and State Discovery Statutes. Brady and the cases related to it provide what’s essentially a baseline for what prosecutors have to turn over to the defense. The federal system and many states have statutes that entitle the defense to more material. (Sometimes the defense must request this material.)

What did the court majority hold about the defendant's lawyer?

The court majority held that the defendant’s lawyer was fulfilling his legal obligation, while a concurring judge raised the question of whether documents should be treated differently than other types of evidence. Lerman says Morrell doesn’t create clear precedent on the question of whether a lawyer must disclose to prosecutors documents providing evidence of a white-collar crime. After all, she notes, the kidnap plan at issue in Morrell was not the kind of document a lawyer might receive from a client engaged in the kind of theft, embezzlement or other activities that constitute white-collar crime.

What is the dilemma of a lawyer?

The dilemma arises when a lawyer obtains physical evidence such as a gun that relates to a crime for which a client faces possible charges. A lawyer in that situation must find a way to resolve the conflict between two fundamental duties. On one hand, the lawyer is obligated to preserve attorney-client confidences.

What is the Lerman case?

To make the point, Lerman refers to a 1967 ruling by the Richmond, Va.-based 4th U.S. Circuit Court of Ap­peals, one of the first to address these issues. There, the court affirmed an 18-month suspension from federal prac­tice for a lawyer who took a bag of money and a sawed-off shotgun from a client suspected of bank robbery and put them in a safe deposit box. In re Ryder, 381 F.2d 713.

When did the Supreme Court rule that a lawyer had a duty to turn over a client's written kid?

At least one state court has held that documents should be treated no differently than other physical evidence. In 1978, the Alaska Supreme Court ruled that a lawyer had a duty to turn over a client’s written kidnap plan to prosecutors even without having been asked for it. Morrell v. State, 575 P.2d 1200.

Can a lawyer destroy a business record?

The lawyer cannot destroy them and may have to produce them pursuant to a subpoena. But ordinarily, no one would regard it as obstruction of justice for the lawyer to take and main­­tain business records.”. When it comes to documents, Lerman says, a distinction should be made between a copy and an original.

Can a lawyer take possession of evidence?

But once a lawyer takes actual possession of the evidence, he or she may hold it temporarily for testing and examination, but then must turn it over to the prosecution or risk being accused of obstructing a criminal investigation.

Do lawyers have to disclose where evidence came from?

But in turning over evidence to the prosecution, a lawyer is not obligated to disclose where the evidence came from, Lerman says.

Who can be witnesses in a court case?

Your potential witnesses can (and usually do) include family members, employers, tax preparers, counselors, physicians, educators, coaches, records keepers, and others. When the court requires a pretrial statement from you, you will draw up a list of people who fit in the above categories.

What information is needed for a witness list?

Make sure that the list includes the following information: 1. The witness’ address and contact information. 2. The witness’ availability to appear at a hearing or trial. 3. The witness’ willingness to appear at a hearing or trial. 4.

What to talk about in advance of trial?

Talking with your potential witnesses well in advance of a trial may reveal weaknesses or strengths in your case – or even other witnesses or evidence you were unaware of before speaking with them.

Is digital evidence compelling?

Digital evidence can be compelling in court or at the settlement table, but it’s absolutely critical to understand that there is a right way and a wrong way to capture, preserve and present this type of evidence. Authentication of Digital Evidence.

What is the rule for false evidence?

Rule 1.0 (k). The false evidence that was submitted must also be “material,” which is whether the evidence could have changed the result of the outcome.

What is the duty of candor in law?

The modern trend in legal ethics is that the lawyer’s duty of candor to the tribunal will almost always trump his or her duty of confidentiality to the client. This is especially true in New York. New York’s Rule 3.3 not only prohibits a lawyer from offering evidence that he or she knows to be false, but requires a lawyer to take reasonable remedial measures, including, if necessary, disclosure to the tribunal. The proper course, when the lawyer learns that false evidence has been submitted, is to first remonstrate with a client confidentially, and seek the client’s cooperation with respect to the withdrawal or correction of the false statement. Most clients will likely understand that taking such a measure is also in their best interests, and that a lawyer is likely to take steps that are least damaging to the client. For instance, if an asylum claim otherwise includes truthful elements but some false information or evidence, the withdrawal of the damaging evidence may be presented at the same time as part of a packet of evidence that is otherwise truthful and supportive of the client’s claim. If the client is uncooperative and withdrawal from the representation cannot remedy the false statement, the lawyer, under Rule 3.3 (b), must make disclosure to the tribunal as is reasonably necessary to remedy the situation, even if such disclosure is protected under the attorney client rule of confidentiality.

Can a lawyer remedy a client's fraud?

In the immigration context, it may appear that a lawyer’s obligation to remedy a client’s fraud or false statement, if it was made to a tribunal, could last in perpetuity. It could result in draconian results, if say, a child or a spouse derived a green card, or even a derivative citizenship benefit innocently based on the false evidence that was submitted by the principal applicant. As I had suggested in my previous article, there are very good policy reasons to limit the obligation to the end of the proceeding, or at least when the statutory limit for filing a motion to reopen has passed. As time passes, the undoing of previously committed fraud implicates the status and rights of other people, such as spouses, children and other relatives. Indeed, even the Board of Immigration Appeals has held in an unpublished decision, Matter of Gumapas, that a person who became a citizen through fraud is still a citizen, and can sponsor a spouse for permanent residence. The imposition of such a limitless obligation on an attorney would also diminish the purpose of the ethics rules themselves in preventing fraudulent representations to the tribunal. In this example, the lawyer acted in good faith before the tribunal even though the client may have presented false evidence without the knowledge of the lawyer. Also, there are other processes in place that can rectify the situation, such as the government’s ability to commence de-naturalization proceedings against her through their own investigations, without relying on the attorney to inform them. And last, there are reasons to end the obligation at the conclusion of the proceeding similar to why statutes of limitation exist. Over time, witnesses and documents may not be available and memories fade. This author has heard speeches by distinguished personalities whose parents may have entered the US as immigrants where they wax lyrical about how their parents perpetrated a small misrepresentation in order to immigrate to the US so that their children could succeed and realize the American dream. If a lawyer who represented this distinguished person’s parents is in the audience, is this lawyer today under a 3.3 obligation to inform the relevant immigration agency regarding the parent’s fraud even if the parent is deceased?