I think I recognize the power I wield in these circumstances. However, it only exists because I work to ensure my credibility doesn’t get diluted too often.
ymeskhout
I think they fully know they’re lying about the facts. Where I’m more inclined to believe they’ve achieved self-deception is within the realm of positive thinking and unshakeable confidence about their anticipated results. Many of my clients seem to earnestly believe that their antics will get their case dismissed or somehow overturned on appeal, but that seems to be a coping strategy necessary to cope with the unimaginable torture of the upcoming years in prison.
The American Bar Association writes the Model Rules of Professional Conduct which are not governing but intended to serve as a template for attorney bars to adopt. Right off the bat that’s at least 50 different jurisdictions (plus DC, plus Puerto Rico, plus federal judicial districts, plus many more) that may or may not adopt the RPCs with or without any modifications. Sometimes the modifications are done to comport with state constitution, a judicial committee, a piece of legislation, new case law, or whatever else. So very often, I don’t even know that I don’t know of a caveat. But even if I did, adding a disclaimer would render anything I write about the law nigh-incomprehensible. Just consider how many libraries have been filled with exceptions and caveats from this one sentence: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
You would think that the revolving door would help repeat offenders wisen up through experience, but the overriding effect is that they’re repeat offenders precisely because they lack the capacity to wisen up.
What happened with 11 magic words is too arcane and unpredictable to “game”. It mystified even me, and I’ve had the experience of going through criminal proceedings magnitudes more times than even my most decorated clients. I’ve commented here to a similar question but gaining my sympathy through lying is 1) not likely to be consequential and 2) very likely to backfire.
Correct, there are indeed potential advantages to lying to your attorney under very specific and narrow circumstances. You also have to consider the risky gamble this presents because you can’t predict every aspect of the machinery. Maybe the jury never would’ve paid attention to the alibi aspect of the case, but if the alibi witnesses get exposed as liars by the prosecution, that alone could swing jurors from acquittal and towards conviction.
If a client tells me they know for sure that their alibi witness will be lying in their favor, then I’m not allowed to elicit the false testimony from that witness. If they admit to me to robbing the store but (truthfully and without omissions) say they were wearing a mask and functional gloves, then that lets me know what facets to focus on and what to avoid. If they’re sure enough they left no fingerprints, then I can comfortably ask the investigating detectives if any fingerprints were found. If the circumstances allow it, then I may even get my own expert to dust the entire scene for fingerprints with the aim of presenting their absence as exculpatory evidence to the jury. Keep in mind that my job is not to help the government prosecute my client.
And yes, there are plenty of cases where the perpetrator might be obvious from a common-sense perspective, but it would be legally difficult to prove in court.
Not that exact line, but that notion is communicated all the time. You can imagine that it’s not very convincing.
That’s interesting, I was not aware of this dynamic. Were there any particular posts that served as a good summary or lodestar for people’s stances on this topic?
As a relative outsider and with the job I have (and also fully acknowledging the self-serving aspect of what I’m about to say) this strikes me as a naive and self-destructive position to hold. People in the real world lie, cheat, manipulate, and exploit others, and it seems patently obvious to me that we need mechanisms to discourage that behavior. A culture of disdain towards that conduct is only one aspect of that fight.
Baby, I’m the only one you need.
The closest author I found would be the The Secret Barrister from the UK.
FWIW when I was having these conversations with my clients, I was explicitly thinking of the exact same ideas presented in the Sequences. I do think that overall, LW would benefit from a higher appreciation of deception and how it can manifest in the real world. The scenarios I outlined are almost cartoonish, but they’re very real, and I thought it useful to demonstrate how I used very basic rationalist tools to uncover lies.
I get that a lot of people are concerned about this post due to the unabashedly displayed contempt for the clients
I hope it was crystal clear that if I had any contempt, it was strictly reserved to the clients who feebly but blatantly lied to me. Even then, being lied to happens so often that it only bothers me when it’s persistent and pervasive past the point of it being funny.
Not gonna lie, I admire Saul Goodman and his (non-illegal) courtroom antics. The first season of Better Call Saul was also a highly authentic vignette into public defender life.
I could have been more precise with my wording, but I never meant to imply that there are no innocent defendants.
Agreed. Almost all the advice in the link is too useless or too attenuated to consider.
It depends on the jurisdiction. Some states only recognize “marital communications” privilege which means whatever is going to be barred has to be something that was disclosed within the sanctity of wedded communications. States also differ on whether the privilege must be raised by the witness or by the defendant.
L A Y E R S of happy little accidents
It sounds like with “factual lies” you’re saying that certain lies are about something that can easily be verified, and thus you’re unlikely to convince other people that you’re being truthful.
Not necessarily, I was referring to lies about the case itself, and those always have the potential to be exposed by either my investigations or the prosecutor.
Why do you say that sympathy lies are not very consequential (assuming they are successful)? My model is that defendants have a pretty large range for how hard they could work on the case, working harder increases the odds of of winning by a good amount, and how hard they work depends a good amount on how sympathetic they are towards the defendant.
Forgive me for answering with literal walls of text but this essay might explain things better: Eleven Magic Words. Bottom line is that I’m generally useless and any contributions I may bring to the table are almost entirely fungible. This other one of mine also gets into the inherent limitations of my job: Death of a Client.
I appreciate the feedback but it’s a tension with no obvious answer. Writing simply is a much higher priority for my argumentative writing, where clarity takes precedence. Simplicity takes a backseat for my story-telling prose because the aim is painting an aesthetic collage with my words as much as it is conveying information. There are small poetic touches that I treasure and I would think others would also appreciate. I could have used puppet instead of marionette, but it makes me picture something out of Sesame Street where the puppeteer is below the puppet, in contrast with a puppeteer hovering above a marionette. The word was also a nod to Pinocchio, everyone’s favorite fictional liar. Similar with chicanery, which in the original 17th century French meant “quibbling on minor points of law brought up to complicate a judicial case”. I didn’t actually know this at the time but the word had the right “cloak and dagger” type of vibe I was looking for.
And I also have to admit there is definitely a self-serving dimension as well. English is my third language and one I didn’t fully learn until I moved to the US at the age of 10, so I get a kick from showing off my vocabulary.
I appreciate this systemic approach to analyzing lying! The Pros/Cons depend heavily on the type of lie, and you can split it roughly between “factual lies” and “sympathy lies”. Factual lies are about whether or not this thing did or did not happen, while sympathy lies are used to generate sympathy from others (e.g. “if I get convicted I’ll lose everything”).
Sympathy lies are more likely to be successful, but they’re also not very consequential. It’s possible that it could have an effect at the slimmest of margins, but the risks give it an expected payoff close to zero. The only way I can see this work is if it’s done by the truly sociopathic compulsive liars who can manage to successfully con dozens of people.
Factual lies are meaningless. The evidence either corroborates their claims or it doesn’t. If there’s no corroboration except their word, then they open themselves up to potentially brutal cross-examination. Many many (guilty) defendants have confidently believed they can talk their way out of a situation and failed spectacularly (SBF comes to mind).
And yes, absolutely my job relies heavily on building trust and rapport with my clients. It occupies at least around 80% of my initial conversations with a client.
- 11 Mar 2024 19:56 UTC; 3 points) 's comment on My Clients, The Liars by (
It’s interesting hearing about your background. One of my approaches when I negotiate cases with prosecutors is that I openly admit the strengths of the government’s case. I’ve recently had a factually innocent client who was charged as an accessory to burglary, but it seemed obvious to me she had no idea what the other people were up to. When I talked to the prosecutor, I fully acknowledged “This aspect does indeed look bad for my client, but...” and I’ve always wondered whether this approach has any effect. In this particular instance I did get the case dismissed (and many others like it), but I’m curious if it’s a lesson I can continue extrapolating.