You were there when it happened. You saw him pull the trigger. You were the only one that saw it and you were willing to testify. You swore you were telling the truth. But when the defense attorney got up he asked a very simple question which surprised and embarrassed you at the same time: “do you have episodes sometimes?” You knew you were sane that day. You could still replay the events clearly in your mind. But you had to answer yes to the general question. He then followed it up: “can you always tell when you’re having episodes?” Again, you were clear in your mind about the facts of the day in question but then there have been days when your episodes seemed so real you couldn’t tell the difference so you had to answer no. “So”, he asks casually, “is it possible that you actually didn’t see what you claim you saw?” You answer no and the earlier murmurings in the court are louder now, because your answer is an admission of the possibility that you may not have really seen what you think you saw—perhaps this was all in your head. The jury goes to deliberate. They are instructed to only bring back a guilty verdict if they are convinced that the accused is guilty beyond any reasonable doubt. But the testimony of a mentally unstable person leaves room for a lot of doubt. They bring back, unsurprisingly, a not guilty verdict, the accused walks.
The one that walked before him was an alleged rapist. A man who was said to have raped a 16-year-old girl. It was this same defense attorney that got the girl to contradict herself, successfully calling her credibility into question. He succeeded in making her admit that she has always hated this man because he was a strict math teacher, creating room for the possibility that she might be framing him after all. He even got her to admit that she has been involved in sexual activities with older men in the past, which cast serious doubt on who could have inflicted the genital injuries in the doctor’s report. With no DNA evidence to corroborate her assertions, the jury found him not guilty and he walked out of the court room with the swagger of a man who could get away with murder.
The case before him was a big one. It concerned an infamous drug lord whose legend was known throughout the entire country. He had been caught on a tape intercepted by the police discussing the terms of an illegal delivery. The police considered the tape a goldmine. The case was a slam dunk. But not for very long. This same defense attorney showed up. He said his client referred to the alleged illegal substance as “things” in the recording. And since “things” is not caught in any law as an illegal substance, the police will, in the very least, have to get someone from the drug underworld to confirm that “things” is the code name for an illegal substance. Guess who was willing to testify for the state? Not a single soul. Of course, no drug dealer worth his salt will go out of his way to ‘snitch’. And as was expected, yet again, he also walked out of court a free man.
Many other free men had him to thank and he was touted as the best defense attorney in the city. How he thus became known as the devil’s advocate is not hard to explain.
Becoming the devil’s advocate
When one is faced with criminal charges, they are battling for something no one is willing to give up: their freedom, even their life. The constitution of most advanced democracies outlaw slavery and involuntary servitude. However, the most widely accepted exception to this rule is when a person is convicted of a crime. That is why the stakes are often high in criminal trials. The slightest miscalculation could lead to the conviction of an innocent person. That is also why legal representation in criminal trials is of utmost importance. The law provides that when a person is accused of a crime, he or she is entitled to a lawyer and one should be provided for them by the state if they cannot afford one. What it means is that in a criminal trial, unlike a civil trial, the accused must definitely be represented by a lawyer.
The prosecution’s job is straightforward: prove the guilt of the accused beyond any reasonable doubt. A good defense attorney’s job is also simple but often misunderstood: raise the bar of proof and make it difficult for the prosecution to prove the guilt of the accused. Since everyone is deemed innocent until proven guilty, this job is very essential. And to be able to execute this job to the best of their ability, the defense attorney will have to work with the assumption that the accused is not guilty, and if they are wrong the prosecution should prove it. It is not their job, professionally, to assist the prosecution in so doing.
But there is a big problem: the court of public opinion. This court will go against all the principles of natural justice and pronounce a person guilty before they have the chance to say anything for themselves. And having pronounced a person guilty, therefore, anyone who attempts to defend them, or worse succeeds, is deemed the devil’s advocate. Fortunately, the verdict of this court is not strong enough to trump the constitutional imperative of freedom from involuntary servitude and the long held principle of innocence until proven guilty.
What do they do?
People often pose this question to the defence attorney: what do you do when you know your client is guilty? The legal answer to that question is that no one is guilty until a competent court finds him guilty. Those that find this answer too convenient have a quick follow-up: what if it was the accused who told you, point blank, that they were guilty? The answer to this is also simple. The accused can only speak to what they did and not to their guilt or otherwise. Think of it this way: suppose a man charged with the offence of murder confesses to his lawyer that he actually killed the man. It doesn’t make such a man guilty of murder in the legal sense. His understanding of murder is only used in the ordinary parlance and devoid of any technical interpretation. But the lawyer knows that there are certain technical elements needed to ground the offence of murder. So that although he may have killed the person and feels guilty before God and man, he may for instance say to the lawyer that he didn’t mean to kill him. While this statement—not meaning to kill— may sound like a frivolous excuse in the court of public opinion, in the actual courts of law, unlawful harm must be inflicted with the intention of killing to make a person guilty of murder. Which means that an accused may have actually killed a person but the offence of murder will not hold if he is able to prove that it wasn’t his intention to kill. He may get a lesser offence like manslaughter. If he is able to show that the deceased was the aggressor, he may actually get off on the excuse of self-defence.
Members of the society, the self-empanelled jury of the court of public opinion, who do not understand that causing the death of someone does not necessarily mean a person is guilty of murder,will be up in arms against whoever made it impossible for the accused to hang—the devil’s advocate.
The court of public opinion consequently arrogates to itself the right to mete out instant justice—which is usually fatal— as a result of what they consider a failing criminal justice system. But how just is killing a man and finding out later that he is innocent. When the unfortunate death of the military officer who was lynched because he was believed to be an armed robber shook the conscience of the country, we tried to excuse it by suggesting that such a conduct was not Ghanaian. Meanwhile, most people harbour deep seated resentment for accused personsand would rather they got no help at all—not even from their lawyers. We may not all be perpetrators of mob justice but it is our conscious flirtation with this world view that fuels those who do.
Erring on the side of Innocence.
A leading idea in early criminal jurisprudence that became a staple of legal thinking in Anglo-Saxon jurisdictions at its inception and has endured till this day is an idea widely known as the Blackstone ratio or Blackstone’s formulation. In his seminal work Commentaries on the Law of England published in the 18th centuries, English jurist William Blackstone argued that it is better for ten guilty persons to escape than for an innocent person to suffer. This argument has endured in part because of the truism of erring on the side of innocence. And when we start thinking of accused persons as innocent people whose guilt are yet to be proven, we will begin to see defense attorneys as advocates of innocent men—not of the devil— and also begin to appreciate the important role they play in our criminal justice system.