Should a lawyer defend someone in court whom he thinks is guilty?
What if the man is truly despicable (e.g., a child killer)?
We are the chosen nation and much is expected from us. We are supposed to be an or lagoyim – a light unto the gentiles – and defending a person who committed a horrendous crime is not something we would expect an upright moral person to do.
While there is a logic to America’s adversarial system – which operates under the assumption that justice will prevail – nevertheless, I’d be hard-pressed to believe that it’s proper for a moral person to willingly help a person whom he knows to be guilty escape punishment for his crime.
— Rabbi Ben Zion Shafier, founder of The Shmuz
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Certain Galileans were rumored to have killed a person. They came to Rabbi Tarfon and asked to be hidden. Rabbi Tarfon replied:
“What should I do? If I don’t hide you, you’ll be seen. Should I hide you? But the Sages said that rumors – even though they may not be accepted – nevertheless should not be dismissed. Go and hide yourselves” (Niddah 61a).
The rationale behind Rabbi Tarfon’s reluctance is a matter of dispute. Rashi suggests he was reluctant because helping them would be prohibited if they were guilty. If so, this story suggests that one cannot help defendants who might be guilty.
Tosafos, though, argues that Rabbi Tarfon was merely afraid he would be punished by the government if he aided them; in essence, though, helping guilty people is permitted.
The Chochmas Shlomo maintains Tosafos’s ruling only applies if one doubts the defendant’s guilt. If one is certain he’s guilty, one may not help him. Therefore, some contemporary halachists argue that a lawyer can’t help a client who is unquestionably guilty in keeping with the Torah mandate of “you shall eradicate the evil from your midst.”
Generally speaking, though, most defendants fall in the “in doubt” category. Moreover, a lawyer can advance true arguments that might show that guilt has not been established “beyond a reasonable doubt” or that the deed doesn’t constitute a crime under the relevant statute.
Insofar as dina d’malchusa dina applies, any form of defense permitted by society can be halachically advanced. Also, bearing in mind that innocent people have been found guilty due to a poor defense and that people who were thought to be guilty were – thanks to able defenses – found to be factually innocent, it is clear that defense lawyers are essential to maintaining the words of the prophet, “Execute the judgment of truth and peace in your gates” (Zechariah 8:16).
— Rabbi Yitzchak Schochet, popular Lubavitch
lecturer, rabbi of London’s Mill Hill Synagogue
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Each attorney needs to make his or her own decision, and this decision entails a moral balancing act. On the one hand, an attorney is paid to represent his or her client; even a reprehensible individual has a right to legal representation. On the other hand, an attorney’s conscience may veto representing a client felt or known to be guilty.
One of the great barristers of fiction, Horace Rumpole, described his role as being like a taxi available for hire – even to passengers he did not like. Thus, he often defended criminals. But Rumpole dreaded a client who admitted his guilt; even Rumpole wouldn’t be able to defend a client he absolutely knew to be guilty.
The goal of a trial is to achieve justice. If a clever attorney can gain acquittal for a criminal, justice has not been achieved. If a client is convicted because of lack of a proper defense attorney, justice has also not been achieved.
Before taking on a client, an attorney needs to remember the Torah’s demand: “tzedek tzedek, tirdof – you shall surely pursue justice.” Your ultimate responsibility is not just to the client, but also to the legal system and society as a whole. And you want to be able to sleep at night!
— Rabbi Marc D. Angel, director of the
Institute for Jewish Ideas and Ideals
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One is not permitted to help a wicked person. To successfully help someone dangerous escape prosecution falls in the category.
A famous Jewish lawyer has used Avraham’s plea on behalf of Sodom as a proof that even the worst person deserves a defense. But if one examines Avraham’s argument, one sees that he invokes the presence of righteous individuals to save the city from destruction. Hoping that righteous people will influence others is not the same as defending a wicked person.
— Rabbi Yosef Blau, mashgiach ruchani at YU’s
Rabbi Isaac Elchanan Theological Seminary
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As with every issue, it depends. If the person is a despicable criminal who is still a threat to society, then one should certainly not defend him on false pretenses or even legal loopholes.
But if the despicable criminal poses no reasonable threat to society in the future, his incarceration is solely punitive. In that case, one should not obstruct justice by defending him with false arguments. But one can defend him honestly.
We find the same idea in Torah law when it comes to punishing a criminal. Unless many fine conditions are fulfilled, he cannot be punished (so we leave his ultimate punishment to heaven), but if he is a repeat offender or a threat to society, there are measures that exist to punish him as a deterrent to others or to protect society from him.
These Torah measures include having the king initiate the punishment (as opposed to the courts) and, in certain cases, the court initiating his death utilizing certain indirect manners.
— Rabbi Zev Leff, rav of Moshav Matisyahu,
popular lecturer and educator