Courting controversy

PUBLISHED : Thursday, 22 October, 1998, 12:00am
UPDATED : Thursday, 22 October, 1998, 12:00am

Those who have seen And Justice For All will remember the dramatic courtroom scene where Al Pacino reveals that his client is guilty and has admitted so himself.

Certainly many must be wondering about the dilemma faced by barristers regarding a confession of guilt by their clients.

In movies, the righteous counsel often emerges as the hero by turning the tables on the guilty party, but things are more complicated in real life.

So how can this catch-22 be resolved? First of all, it should be pointed out that under the rule of law everyone is presumed innocent until proved guilty. The court will first ask the accused whether he pleads 'guilty' or 'not guilty' to the charge.

Although the accused is solely responsible for choosing the plea, the barrister is ethically required to advise his client as to the most suitable course of action. The dilemma arises when the accused confesses to his lawyer that he is actually guilty, while insisting on pleading 'not guilty' to the court.

In this situation, the barrister is not necessarily discharged from representing his client. The Code of Conduct for the Bar of Hong Kong lays down various restrictions on how the barrister should proceed with such a case.

This 'confession' refers to a clear and unequivocal admission of guilt by the accused to his barrister. The confession made to the police or in court is different.

A confession can be made before, during or after a trial. If the confession is made to the barrister prior to the trial, he may only continue defending his client if he complies with certain limitations on his conduct of the case.

He may challenge the evidence and ask the prosecutors to prove their case. What a barrister must never do is to suggest that a third party may have committed the offence.

The same applies when a confession is made during a trial. If, however, the accused has already appeared as a witness and perjured himself, the barrister must immediately cease to represent his client, unless the defendant informs the court of the perjury.

The most controversial is the confession after acquittal. There is yet no authority on what a barrister may do in such circumstances. But a man who has been tried and acquitted can never be brought to court again for the same offence. Although this 'finality' is not ideal, the inconvenience and uncertainty that would emerge otherwise would shake public confidence in the legal profession.

The duty of a defence barrister is to protect his client from being convicted. This duty continues even upon a confession of guilt.

The final decision, of course, rests with the court and jury, not the barrister.

Ms Chim is a second-year law student at the University of Hong Kong and a member of the Law Association