“How can you sleep at night?”

What does it take for lawyers to be able to defend the perpetrators of shocking or morally indefensible crimes? Denise Winn tried to find out.

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EMERGING from the train station early one morning, a man took a taxi to the city’s Crown court, where the high-profile case of a notorious drugs dealer was being heard. The taxi driver, on learning that his fare was a barrister appearing for the defence, was silent for a long moment. Then, shaking his head, he said, “I don’t know how you people sleep at night.”

Solicitors and barristers are always being asked how they can defend people whose views or behaviours they find anathema and, particularly, those accused of heinous crimes who, they strongly suspect, are guilty. It is something that I have long wondered myself. Might lawyers in this position not suffer significantly from cognitive dissonance, the phenomenon whereby a mismatch between our behaviour and our attitudes leads to a need to resolve the resultant stress and create consistency – usually by changing our attitudes rather than our behaviour?¹ Thus the person who is against gambling in all its forms but who is bought a lottery ticket which turns out to be a winner might thereafter opine that one should never look a gift horse in the mouth. Could it not also be the case that, when lawyers are required to defend some clearly reprehensible character, cognitive dissonance might lead them unconsciously to see the defendant in a better light – and even go to especial lengths to try to prove their innocence – to square things with their own consciences?

There has been much published in the psychological literature on many aspects of the criminal justice system, particularly the unintended impact of police interviewing styles on what suspects will confess to and what eye-witnesses will ‘recall’, unreliability of memory, and crucial aspects of jury decision making. But I could find nothing that addressed my question. So I contacted Professor Brian Cutler, editor of the international journal Law and Human Behaviour and Professor Clive Hollin, co-editor of Psychology, Crime and Law, to ask if they knew of any research in this area – assuming that, if any existed, they would be the people to know. Professor Cutler promptly replied, “I do not know of any theoretical or empirical research on this topic. Interesting idea!” And Professor Hollin’s response was, “Sorry, I don’t know if anyone has ever looked at this topic. It has often struck me as one that is interesting but I’ve never published or read any research on it.”

So I decided that, if I was to get any further, I had better ask defence lawyers themselves. Although solicitors are required to defend all manner of clients and speak for them in magistrates’ courts, I chose to concentrate on barristers and solicitor advocates, as they take the more serious Crown court cases, the outcomes of which are significantly greater for the accused.

The Bar vocational course director of a leading London law school was a little nonplussed by the question. “What you do, if you think a client is guilty, is don’t make judgements of that sort. However disagreeable or loathsome you think someone is, you must set aside your views and do the best job you can. I’ve never heard of cognitive dissonance, although it is an interesting point. The Bar doesn’t grapple with anything like that. It just lays down the rules as to what to do.”

Experienced solicitor advocate Martin Tanfield (not his real name – all of the lawyers I spoke to wanted to remain anonymous) insists that defending “loathsome” people who are highly likely to be guilty is not a problem for a variety of reasons. “First,” he says, “you are not the person who makes the choices. You don’t need to make decisions about the outcomes of the case. That is for the judge or jury. If you pre-judge, you are doing someone else’s job.”

This is a view backed up by leading QC, Daniel Forrester: “You can’t know someone is guilty. People always have an explanation for why it wasn’t them. I have never in 25 years met a barrister whose client has admitted guilt. I am in the same position as anyone else, because I am not on the jury. And none of it is to do with my personal beliefs. The police and prosecution services are massively resourced to put forward the public interest. The defendant has just a solicitor and barrister. My job is to help people at what is for them a time of trauma.”

As Martin eloquently describes, the nature of the legal process itself serves to distance the individual from the outcome. “I see the tasks I must perform as rather like a craft. It is irrelevant whether carpenters like the table they are commissioned to make. What matters is whether they have complied with the design and used the right materials. Theirs is just one function in a process that begins with an idea for a design and ends with the furniture store. Taking a craftbased approach enables me to separate myself from the overall outcome.”

He and others talk of trials in terms of a game that is being played – the game being evidence produced in admissible form. The defence lawyer’s role is to put the best spin possible on the factual material available at the trial: “There is an artistry to the game performed at trial. It is an artifice. It is not a game in which the aim is to produce the comprehensive truth. It is a game about evaluating two competing accounts that have been proved to the required standards,” he says. “At magistrates’ court level, it is rather like a joust – limited to a single afternoon to reach an agreed outcome. It is all about skill and weapons.”

This differs, of course, from the French judicial system, where the aim is to reach the truth, however long that takes, through an inquisitorial system. It is a much more moral process, in which there is a deeper investment in the correct outcome, but it lacks the safeguards of admissible evidence built into our own adversarial system. So the investigating magistrates, who have enormous power and who ultimately decide what constitutes ‘the truth’ will know, for instance, that the defendant in a rape trial has three previous convictions for rape, and they must be trusted in how they use that knowledge.

Playing by the rules

The rules of engagement in the adversarial system not only help distance the defence from the moral position of the client: they also appear protective in themselves. As Martin says, “I have to do my best by my client but, because I can’t introduce inadmissible evidence in court, I would feel okay if a rapist gets off.” Another solicitor advocate comments, “You have to just get on with it or you could never take a case. Knowing that I have to do my best for every client means that I sleep easy at night, even if robbers or murderers walk free.”

One of the rules of the game is that the defence, unlike the prosecution, does not have to disclose evidence that may show the client in a bad light or significantly mar their protestations of innocence. So, if someone is being prosecuted for personally delivering leaflets encouraging racial hatred, and someone else is found with bundles of said leaflets in their pockets, the prosecution must disclose this to the defence. But, if the defence finds on their client a receipt from a printer, saying, “In accordance with your instructions, these leaflets are being delivered to you personally and must be signed for by you alone”, this does not have to be disclosed to the prosecution.

It is perhaps not surprising, then, that lawyers have enormous respect for the rules of the ‘game’, as keeping these is what decides the justness of outcome, rather than innocence or guilt. As one lawyer says, “Sometimes people whom I know are not guilty have been convicted. That is a byproduct of the game. Similarly, people I know are guilty are quite properly acquitted, in accordance with the rules of the game.”

Martin highlights that ‘the rules’ prevent advocates and barristers from making up facts or being party to the calling of false evidence. (A client cannot be put on the stand by his lawyer if, for instance, he has admitted he was present when the murder occurred but says he is going to claim that he was elsewhere.) Also, even if a client had done the unthinkable and admitted his guilt, he could still, if he insisted, plead ‘not guilty’ and his barrister would be obliged to defend him. Daniel says, “I see it as my role to advance the client’s case properly and fairly, without misleading the court. If the case against them is overwhelming, I tell them that. They might say, ‘I don’t care if you don’t believe me. I’m still going to plead not guilty.’ And I’ll have to tell them that it isn’t a matter of belief. If the case is overwhelming and they plead not guilty, they will lose any chance of a shorter sentence. But it is up to them. If they still want to go ahead, I will make my case and say to the jury, ‘The burden is on the prosecution to prove guilt beyond reasonable doubt; otherwise you must acquit’.”

“Say a man who has robbed an off-licence decides to plead not guilty,” explains Martin. “A not-guilty plea is not a claim of innocence. It is merely the trigger for the prosecution to prove their case. But, in such circumstances, I cannot present an affirmative defence case. I cannot call on alibi evidence, as it would clearly be false, nor can I accuse prosecution witnesses of ‘getting it wrong’ when I cross-examine them. I would say, ‘The nature of the defence is to put the prosecution to proof’ and that tells the judge that the man has admitted guilt. But I can cross-examine a key eyewitness about whether they are sure of what they saw. Perhaps that person is not sure. Then I can tell the jury, ‘You have not heard any evidence of my client’s guilt other than the eyewitness evidence of A and you have heard her say that she isn’t sure. Your job is to make your decision on the evidence you have and, if there is reasonable doubt, the right verdict is acquittal.’ At no point have I said that my client wasn’t the robber. And in such a case the right verdict is acquittal.” A game, indeed.

Personality may provide another reason that defenders can get on with the job regardless, suggests Martin. “The most successful criminal lawyers are great performers. They are highly articulate and engaging, skilled at picking holes in opponents’ arguments. A good defence lawyer is opportunistic. As in cards, one trump can make up for a whole lot of dross. We have to make something of the tiny diamond that glistens in the mud. That makes us credulous and stops us taking a negative approach. It is never hopeless. There might seem to be a conflict between the confidence of the advocate and the dreadfulness of the case. But, from our perspective, it is about having genuine confidence that ‘one card’ will enable us to carry the day.”

And that includes “spinning the agreed evidence”, as he puts it. Australian psychologists Kipling Williams and Andrew Jones have looked closely at trial strategy and tactics. (Their conclusions are published in Psychology and Law, an interesting volume that explores the psychology of interviewing techniques, eye-witness  memory and false memory, detecting deception, jury decision making and more.²) “In many respects,” they say, “the courtroom is a ready-made environment in which to study different forms of social influence.” These include persuasion, dissuasion, compliance, obedience and conformity. One tactic they highlight is that of the defence creating the appearance of winning the crossexamination by asking non-contentious questions, to which they know the answers: “Is it true you moved to Black Mountain in 1993?” “Did you not then establish a pet cemetery known as Farewell Fido?”2 Then, there is counterfactual reasoning, which occurs when a person imagines how an outcome might have differed had some preceding action not occurred. “A shrewd lawyer might ask a seemingly innocuous question such as, ‘So if you had not rung your sister that morning, you would never have left the house?’ and thereby initiate in jurors a process of counterfactual reasoning that would ultimately lead to the witness being judged more harshly.”² For research has shown, surprisingly, that counterfactual reasoning of this type alters the way that people attribute blame to different parties.³ As Williams and Jones point out, it is up to lawyers to decide what behaviours are ethical and to note the fine line between “presenting a case as effectively as possible and deliberately impeding the jurors from considering the evidence in an unbiased manner”.²

Weighing up the evidence

How far all this can be squared with conscience – thus eliminating or minimising cognitive dissonance – depends on three main factors, Martin suggests.

“First, as lawyers, we are working within an ethical code to which we are signed up, but how comfortable are we with that code? Second, the legal system is governed by rules, some of which we might not consider moral. How comfortable are we with that? Third, we have to consider how our lives as lawyers fit in with our beliefs on power and powerlessness in a wider context. These are, in effect, three separate worlds and there may be dissonance between them. For me, I think what I am doing is broadly empowering, consistent with social goals I support. The legal system has elements I am opposed to, but I believe it is helped to function better if defence is strong and the client empowered, than if defence is weak and the client disempowered. I was among those taking thousands of cases against non-payment of the poll tax, a system I thought was wrong, and I felt no dissonance whatsoever when we won, although clearly clients were guilty of what they were accused of.

“I think you are more likely to suffer dissonance if you are working within a system you don’t like, or are working to empower people and then find it a futile exercise – as can happen when you take a test case and fail, making the original situation worse.”

Finding ways to cope

Still, he admits the stresses are great, particularly as solicitor advocates or barristers advance in their careers and move from short magistrates’ trials with relatively minor consequences, if a defendant is found guilty, to lengthy Crown court cases, where people could go to prison for a very long time: “The family of a murdered person will remember all their lives the turns of phrase you used in your closing speech, as you made the case for the defendant’s acquittal.”

So, what are the coping mechanism lawyers rely on, when they no longer have the adrenalin and enthusiasm of youth, ‘jousting’ in the magistrates’ courts and quickly moving on to fight another day? Some, Martin says, become cynical. They carry on their defence work but mockingly maintain that all defendants are probably guilty. That attitude changes their relationship with their clients and is detrimental to their work, as they are unlikely to go the extra mile, required of them by the rules, to follow up any slim possibility of getting their client acquitted. That barrister doesn’t go to Patagonia to trace a possible witness. (Interestingly, this is the reverse of my initial expectation that cognitive dissonance would make a lawyer go well beyond the extra mile.)

Others may, at certain times, allow – or even engineer – a client’s conviction. So, documents damning to the defendant might ‘inadvertently’ be dropped near the prosecution’s table in court. Or the man accused of sexual offences with children, who insists that the jury would understand if only he could explain to them that the children had egged him on, is allowed to take the stand.

For very many, as time passes and trials lengthen, there is less investment in outcome. The dissonance that is avoided, it seems, is not about defending a person who is guilty but about coping personally with a guilty verdict – apparent professional failure. As Daniel says, “If the evidence has been overwhelming, I can walk away from a conviction happy, if I feel I did a good job and that the client knows and respects that.”

Professional pride is the lead emotion. Martin says, “In short trials, you will feel it is in your power to get an acquittal, if you are on form and you are lucky. You associate success with successful outcomes. But in an 18-month trial, clients are engaged all that time in that court process with you, rather than seeing you as a magic person who turns up for the afternoon in the magistrates’ court and makes the problem go away. If, even when they are found guilty, they know you did everything you could and shake your hand, that is what makes me feel success. It is another way to uncouple yourself from the work and the outcomes.”

Winning, however, appears to be a strong motivation for very many lawyers. In this way, again, the game takes precedence over the reality that it is people’s lives involved here. “Barristers may remember a particular case as a personal victory against another famous barrister or even the judge. It all gets highly personal, and the client is effectively left out of it,” says Martin. “The primary motivation is not to empower the defendant but to win. They brag about getting a so-called ‘perverse verdict’, which is like winning at poker without having good cards. Some barristers sweat excessively in court, so engaged are they in this game, where outcome is not directly related to their contribution. They literally shake while the jury is out, or even cry. The jury may erroneously think that no one would behave that way if their client was truly guilty.”

On autopilot

“There are criminal barristers who don’t bat an eyelid, whoever they are asked to defend,” adds Daniel. “Their instinct to win overrides everything. They just go on to autopilot, and can be cold and distant from the plight of the victim.” 

University of St Andrews professor of psychology

Malcolm MacLeod, who has worked in the field of forensic psychology and been involved in aspects of psychology training for defence lawyers (albeit not this one) kindly agreed to discuss with me what I had found out from speaking to lawyers. “For cognitive dissonance to occur, a person would have to perceive their actions as inconsistent with their beliefs. Even if the defence lawyers harboured suspicion about their clients, they would appear to see their actions as consistent with the bigger picture – the right to defence – and deal with it through ‘professionalism’,” he says. “Also, for cognitive dissonance to occur, they would have to perceive themselves as personally responsible for their actions. Seeing themselves as playing a role in just one aspect of the whole criminal justice system, with rules that must be followed, removes that sense of personal responsibility. The Bar vocational course director said that the Bar doesn’t address anything like cognitive dissonance. It just lays down the rules as to what to do. But, in fact, the rules themselves may be what provide the way of dealing with it.

“Each of us comes to situations with a different repertoire of coping skills, and we all have different ways of interpreting how the world works,” he adds. “Some of us are more rule-governed than others. People who become lawyers are more likely to start out with a strong belief in the criminal justice system. It may be that individual experiences change that, in which case cognitive dissonance may well occur. But the issue of winning is significant. I know a lot of criminal lawyers who have tremendous professional pride in winning their cases and the effect of that in minimising cognitive dissonance shouldn’t be underestimated.”

In the end, though, emotions will out somehow. Lawyers always have the right to refuse a case or a class of cases. One barrister told me that he can easily tolerate defending suspected murderers but can’t face suspected paedophiles – and turns those cases down on the grounds of inexperience.

Daniel has never defended in rape trials involving disputed consent. The reason he gives is that he wouldn’t be able to do the job well: “I don’t think I would be very good because I would find it difficult to stomach demolishing a woman in court. Also, I don’t take cases that involve demolishing child witnesses. For emotional reasons, I would find it a difficult exercise.”

He is far more comfortable representing those accused of terrorism, whether or not he supports their cause. “People sometimes find that odd, as terrorists hurt far more people. However, for me, the emotional context is entirely different. These people are motivated for political reasons; they believe what they are doing is right and they don’t pick deliberately on a particular person to hurt.” Martin used to avoid rape trials with disputed consent but conscience of a different kind has changed that. “If those of us who can withdraw do withdraw, very junior people are left to do it. So now I feel an obligation, as a senior advocate, to take this on.”

And what do they feel when it’s all over, duty properly done, if they haven’t liked the person they are defending and lose the case? “I’m always determined to get people off because it is my job,” says Daniel. “If I don’t like a person, it doesn’t affect my approach to the case but it does affect how I feel afterwards. I would feel more upset if I had liked them.”

And when “loathsome” characters get acquitted? Martin raises his eyebrows: “I wouldn’t have tea with them afterwards.”

 

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This article first appeared in"Human Givens Journal" Volume 14 - No. 2: 2007

 

REFERENCES

1. Festinger, L (1957). A theory of cognitive dissonance. Row, Peterson, Evanston, Illinois.
2. Williams, K and Jones, A (2005). Trial strategy and tactics. In N Brewer and K D Williams (eds) Psychology and Law: an empirical perspective. The Guilford Press, New York and London.
3. Branscombe, N R, Owen, S, Garstka, T A and Coleman, J (1996). Rape and accident counterfactuals: who might have done otherwise and would it have changed the outcome? Journal of Applied Psychology, 26, 1042–67.