“How Can You Defend Those Drunk Drivers?”

Posted by Lawrence Taylor on October 9th, 2012

It always surprises me how many people are outraged that I would defend someone accused by the police of a crime – particularly of drunk driving. Arrest increasingly means guilt, and there is a public perception of criminal defense attorneys as being obstructionist, nefarious and somehow unethical. Certainly, every defense attorney tires of the ubiquitous cocktail party question: “How can you defend them?”

The answer to that question is complex, involving issues of possible innocence, inaccurate evidence, overcharging by the prosecutor, guarding constitutional rights, false or untrustworthy testimony, ensuring a fair trial, protection from unfair laws and harsh/illegal punishment — and just keeping the government honest.

One of the better answers was provided some years ago by United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.

Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Some fine day, you or someone close to you will be arrested and charged with a criminal offense. That person may or may not be innocent, but you will pray that he or she is defended against the overwhelming forces of the government by a competent attorney.

If that doesn’t do it, read To Kill a Mockingbird by Harper Lee.

  • DUI – The Constitution Need Not Apply

    Well stated.
    "Some fine day you or someone close to you will be arrested and charged with a criminal offense."
      IncrIncreasingly, that offense will be DUI.  Something like 500,000 arrests every year, making criminals of hard-working, law-abiding, productive members of a community who were NO danger to anyone.  It's only a matter of time before it negatively affects you or a loved one.  Thus will begin your education into the tyrannical nature of the state in pusuit of DUI convictions.
    The "cure" (overzealous enforcement) has become more damaging to society than the "disease" of drunk driving.

  • In our fine State of Arizona, the lowered limits, task forces, traps, all have increased the number of drunk driving arrests for folks that are seemingly out for dinner. I agree that one should exercise great caution but where do you draw the line? The speed limit on most of our major surface streets is 45 mph which means that most vehicles are traveling at a rate of speed in excess of 50 mph. Trust me, speed is more of a contributing factor in most accidents than alcohol. Good people can and will be arrested for DUI, it's how you handle it that makes the person.

  • Tani T

    I am quite appalled that the courts in this country will presume you are "Guilty". And the burden is on you to prove your innocence. Sorry state of affairs !

  • TemporalBeing

    The courts presume innocence until proven guilty; the prosecutor however presumes guilty until innocent, and one role of the defence attorney is to presume innocence as well to counter the prosecution.
    That said…I think the question "How could you defend them?" could be turned back – "How could you not?", for all the reasons listed in this article.

  • Alissa Banks

    I agree. The constitution is set up to help the accused "Innocent until proven guilty" and <a href="http://www.utahdefenseattorney.net/criminal-defense/dui/utah-dui-defense-strategy">dui lawyers in salt lake city</a> are good at demonstrating this. I like this insightful article!

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