Introduction
People who have never hired a criminal lawyer often make incorrect assumptions about the criminal justice system and the solicitor-client relationship. This blog identifies and addresses common misconceptions regarding these subjects.
Misconceptions Regarding the Criminal Justice System
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“If I hire a lawyer, I must be guilty.”
Hiring a lawyer is not an admission of guilt. Under the Canadian Charter of Rights and Freedoms, any person charged with a criminal offence is presumed innocent until proven guilty. Legally, no negative inference can be drawn from the fact that a person chose to hire a lawyer to help them with their legal problem.
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“I can represent myself.”
It is rarely, if ever, a good idea for someone to represent themselves in a criminal proceeding. Any individual charged with a criminal offence faces serious consequences. The criminal justice system has complex rules that are confusing and sometimes conflicting. While individuals facing charges are legally allowed to represent themselves, there are significant risks in doing so.
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“The case against me is weak, so I don’t need to worry about it.”
In British Columbia, the Crown lays charges when there is a substantial likelihood of conviction and the prosecution is in the public interest. When a charge is approved, it means the Crown has evidence to support a conviction.
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“The case against me is strong, so there is no point in fighting it.”
The Crown bears the burden of proving each element of the offence beyond a reasonable doubt. An experienced criminal defence lawyer can weaken a seemingly strong Crown case through various means, including pre-trial applications to exclude evidence and skillful cross-examination. A criminal defence lawyer can also help present the defendant’s evidence in the most persuasive way, which may, on its own, raise a reasonable doubt. They can also negotiate the most favourable resolution to help minimize the impact of the prosecution.
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“I can’t be convicted just from what the complainant said.”
In some cases, an accused person can be convicted solely on a complainant’s testimony. Other evidence, such as independent witnesses, videos, photos, DNA, and fingerprints, may not be required.
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“Hiring a lawyer guarantees I’ll win.”
No lawyer can guarantee a result. However, retaining an experienced criminal defence lawyer can significantly increase the likelihood of a favourable outcome.
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“If I cooperate with the police, things will go better.”
It is rarely, if ever, in a suspect’s or an accused person’s interest to speak to the police. A person charged with or under investigation for a criminal offence has the constitutional right to remain silent. It is almost always best to exercise that right. Speaking to the police before obtaining legal advice can seriously harm your case.
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“I can resolve things with the complainant.”
A criminal case can proceed without a cooperative complainant. A complainant is just a witness to the prosecution’s case. The prosecutor is not the complainant’s lawyer, and the complainant does not control the prosecution. Efforts to try and resolve a case by having the suspect or the accused speak to the complainant can result in the suspect or accused being charged with additional offences, including obstructing justice and breaching a release order or undertaking.
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“My case is just like my friend’s case, so I should get the same result.”
Every case has its unique set of facts. One should not expect the same outcome based on similarities with another case.
Misconceptions Regarding Solicitor-Client Relationship
The solicitor-client relationship in criminal defence is governed by strict ethical rules and professional responsibilities. Criminal defence lawyers are advocates for their clients, regardless of the allegations or circumstances. Below are some common misconceptions that can undermine the relationship or affect the defence process:
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“My lawyer will stop representing me if they think I’m guilty.”
This is incorrect. A lawyer has an obligation to zealously advocate for their client. The lawyer’s personal opinion about a client’s guilt or innocence has no bearing on the professional relationship.
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“Once I hire a lawyer, I don’t need to do anything.”
Hiring a lawyer does not absolve a client of responsibility. Criminal defence is a collaborative process. A lawyer requires instructions from their client to effectively advance their interests. A client has responsibilities within the solicitor-client relationship to provide documents, stay available for consultations, provide reasonable and timely instructions, and follow the lawyer’s advice.
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“I can wait until the last minute to hire a lawyer.”
Delay in hiring a lawyer will significantly reduce the lawyer’s ability to prepare an effective defence and advance their client’s best interests. Important evidence can be lost, witnesses can become unavailable, and deadlines may be missed. The earlier a lawyer is involved, the more they can do to build a strong defence or negotiate a favourable resolution.
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“If I tell my lawyer everything, they might tell the judge or police.”
Communications between a client and their lawyer are confidential and protected by solicitor-client privilege. In most cases, a lawyer is ethically obligated not to tell the police or judge things that are contrary to the client’s best interests. There are very limited exceptions to this rule.
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“My lawyer should do what I say—I’m paying them.”
Normally, a lawyer will follow their client’s instructions, but the lawyer’s obligation to do so is not unlimited. Lawyers must follow the law and abide by their professional obligations and ethical codes of conduct. A lawyer cannot carry out instructions that are illegal, unreasonable, or unethical.
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“A lawyer can advise me on my case right away.”
Providing quality legal advice requires a lawyer to thoroughly review the facts of the case and the law. While a criminal lawyer can often provide some initial advice right away, providing complete advice requires time to properly review the circumstances.
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“My lawyer isn’t doing anything if they’re not constantly updating me.”
Legal analysis is often complicated and time-consuming. A large portion of legal work involves items other than meeting with the client, such as reviewing the case, negotiating, corresponding, drafting documents, researching, and strategizing. A criminal lawyer will let their client know if they need their instructions. A client can best assist their lawyer by being available when their lawyer needs to speak to them and providing their lawyer with timely and reasonable instructions.
If you or someone you know is facing a criminal charge, consult with our experienced criminal defence lawyer in Langley at Filkow Law immediately.
