Walter Olsen at  Overlawyered raises the ethical question of the propriety of a lawyer stating that his client is innocent.  While it started out via the Dickie Scruggs case, and wound its way through the Mel Weiss case, the ethical issue is one that permeates criminal defense, and a trap for lawyers who find themselves put on the spot.

Lawyers aren’t witnesses.  We don’t necessarily “know” anything about the case, other than what our clients tell us and what the hard evidence shows us.  We may believe what we are told, but we don’t “know” it to be true.  This presents a conundrum.

Generally, the only time we are placed in the position of having to vouch for our clients or, by our failure to do so, burn them, is when there is media attention and the lawyer is caught unprepared.  A reporter will naturally try to nail you down by asking, “Did he do it?” 

Don’t be angry about it, that’s the reporter’s job.  He’s not interested in your ethical obligation, or the highly nuanced position of a criminal defense lawyer.  He wants a sound bite, something to fill those 10 seconds on the 6 o’clock broadcast in between his sensationalist version of the facts and his brilliant commentary.

But where does the lawyer fit into this potential trainwreck?  The obvious answer is to anticipate that this question will be asked, frequently over and over with numerous variations on a theme, and be prepared to respond without committing yourself or your client to proclamation of innocence that will later return to embarrass you.

Why should it be embarrassing?  Because the lawyer stakes his own credibility on the innocence of the defendant, something that is outside his knowledge or control.  The issue arises because the lawyer fears that his failure to proclaim his client’s innocence suggests that he’s guilty.  After all, it’s one of the other, and if he’s not innocent, then the choices are limited.

This is why its critical to anticipate the question and be prepared to respond in a way that it factually accurate and protect your client’s interest without undermining your credibility and ethics in the process.  There is the basis level of response, that smells peculiar but tends to suffice when you’ve got nothing else up your sleeve.  For example, responding with, “we have every intention to fight this case and every expectation of winning.”  Or “We intend to zealously challenge the allegations against the defendant at trial.”  Responsive, but without vouching for the client’s innocence.

As Walter notes, of course, these are the typical lawyer non-responsive responses.

We may chuckle at the lawyerly phrasings involved here — only beginners fail to catch on that the client’s actual innocence is not being asserted. But behind those lawyerly phrasings is an impulse that at least deserves respect: to get the client’s case on the table (when the situation calls for doing that) without in fact turning the lawyer into a liar. (Other legitimate purposes might also be served as well; for example, a lawyer’s endorsement of false frame-up theories might tend to poison relations between members of the bar and undermine public confidence in the workings of justice.)

But as he also correctly notes, ethical proscriptions control what we can and should say. 

With a little thought and effort, we can avoid making a statement that commits to a false theory, vouches for a client’s (or witness’) innocence or honesty, or converts us from lawyer to witness.  While it may seem like a reporter’s put a gun to your head when he asks the straightforward question, “did he do it,” that’s part of the job of being a criminal defense lawyer. 

Don’t compromise your client, but don’t confuse your role as lawyer for the defense with witness for the defense.  If you put your ethics and credibility on the line and lose them, neither you nor your client will benefit.

Update:  In the comments below, Bennett raises a good point.  A defendant is “presumed innocent,” which should suffice for the purpose of publicly stating his innocence without jeopardizing ethics or credibility.  I don’t believe it works out this way.  A presumption is not the same as an affirmative representation of fact.  It is the absence of fact to the contrary. 

Certainly, no one wants to smile to the cameras and say, “My client is presumed innocent, and that’s my story and I’m sticking with it.”  It’s tantamount to saying, “but for the presumption, that rat is guilty as sin.”  That’s not going to play very well.  So while I appreciate where Mark’s coming from, its too much of a lawyer-game to bank on the presumption and vouch for legal innocence when the rest of the world is going to hear factual innocence.  And that’s my story and I’m sticking with it.