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Is It Allowed to Withhold Physical Evidence? Essay

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Updated: Aug 27th, 2020

Attorneys are often considered to be people without conscience, who would lie, cheat, coerce, and do any other actions necessary to bail out their clients, even if they are guilty. While this warped view of the profession could not be farther from the truth, it is based on one of the fundamental rules of the attorney code of ethics, which establishes faithfulness to the client as the attorney’s main duty (“New York lawyer’s code,” 2013). An attorney must use any legal means at their disposal to prove the client’s innocence. This brings us to the question posed in this Discussion Board scenario – is it acceptable for attorneys to withhold potential evidence from the prosecution if their client gives it to them for safekeeping? Can they refuse to keep it? Is it their duty to safeguard the client’s confidentiality at all costs?

In my opinion, the very basis of the attorney profession is wrong. Modern judicial practices view the role of the prosecutor as someone that has to prove the defendant’s guilt, while the attorney as someone to prove their innocence. The judicial process, thus, becomes a competition between the two. This approach loses the initial goal behind the judicial process – to find out the truth. It is what the goal of both parties should be – to establish the truth, rather than protect the interests of either the plaintiff or the defendant.

Kantian ethics state that it is a duty of every person, to tell the truth, because lying robs the other person of their freedom to make a rational choice based on knowledge and truth (“Kantian duty-based (deontological) ethics,” 2016). In this scenario, withholding evidence from the prosecution would become a lie of omission. A lie of omission is a kind of lie that does not involve untruthful statements, but rather withholding of information to lead the opposing party astray (“Lie by omission,” 2017). In this case, withholding the potential evidence from the prosecution would mean that their case would lack a potentially critical piece of evidence required to complete their case. This would potentially result in the defense winning the court session, and a criminal accused of armed robbery being allowed to roam free.

However, not everything in this scenario is so cut-and-dry. It is said that neither the attorney nor I know if the weapon given to us for safekeeping is, in fact, the weapon of the crime. It is possible that the weapon has no connection to the robberies, and is just an item that the client wishes the attorney to keep, for whatever reasons. If we follow the presumption of innocence until proven guilty, it would not be ethical for us to assume that the client’s weapon is indeed physical evidence for the crime (“The presumption of innocence,” 2017). Surrendering it to the authorities would violate the trust established between the client and the attorney, which is also unethical.

The last option that the attorney has in this situation is to refuse to keep the weapon and return it to the client. While this action seems to be the least conflicting when it comes to ethics, there are still several issues with it. If the client is indeed guilty of the crime that he or she is accused of, then refusing to keep the potential physical evidence will most likely encourage the client to destroy it to prevent the police from eventually finding it and using it to complete the case.

In the end, I have three choices, and all of them are unethical from a certain point of view. This is the reason why there are no laws that directly address such scenarios (“The right of a criminal defense attorney,” 2017). It is left to individual attorneys to make a choice. If I pass the weapon to the police, we break the presumption of innocence and violate the client’s trust. If I keep it, I may become an accessory to the crime. If I refuse to keep it – I will encourage the client to destroy a key piece of evidence.

My choice would be to pass the weapon to the police for inspection and bear the responsibility for breaking the client’s trust and violating the presumption of innocence. To justify my actions, I refer to the Kantian statement about the sanctity of truth. I believe that attorneys and prosecutors alike must serve Justice and Truth, rather than the client’s interests. The weapon is likely to undergo forensic and ballistic expertise (Claridge, 2016). If the weapon is clean, it will serve as an additional point to prove the client’s innocence. If there is a connection between the weapon and the crimes that the client is accused of, let Justice be served. Perhaps taking a more adamant approach in regards to the justice system will help clean the profession’s good name and lessen the amount of public scorn frequently thrown at attorneys. While popular opinion is hardly doing the profession any justice, these feelings are understandable. It is hard to feel sympathy for the Devil’s Advocate.

References

Claridge, J. (2016). . Web.

(2016). Web.

(2017). Web.

(2013). Web.

(2017). Web.

The right of a criminal defense attorney to withhold physical evidence received from his client. (2017). Web.

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IvyPanda. (2020) 'Is It Allowed to Withhold Physical Evidence'. 27 August.

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