The job of a criminal defence lawyer isn’t easy—take it from me. Most of the time, it isn’t as glamorous and awe-inspiring as prime-time television would have you believe. Most of the time, it’s hard work for mediocre pay and an incredible amount of stress. But we know that our role is pivotal in the administration of justice and that people need our help…so we carry on.
Recently though, the Jian Ghomeshi case has been renewing the public’s interest in the role that criminal defence lawyers play. It is putting our job under a microscope. Ghomeshi’s lawyer, Marie Henein, has caused quite a stir with—what the media is largely describing as—her harsh, insensitive, and unethical treatment of witnesses.
Throughout the trial, Henein has conducted vigorous cross-examinations on each of her client’s accusers. She has questioned them about the precise details of their allegations, confronted them with uncomfortable digital records, and challenged their recollections…and in doing so, she has certainly ruffled a few feathers.
Henein’s critics have said that she is unsympathetic to sexual assault victims and has done nothing to help society understand the trauma that such people suffer. Some have even gone so far as to suggest that criminal defence lawyers like Henein must adopt an “ethical approach to cross-examination”. This is to suggest that they must be obligated to treat witnesses delicately and avoid asking any and all questions that may cause them to feel attacked or undermined or retraumatized.
This—without mincing words—is completely unrealistic.
Just like any other lawyer, Henein was hired to do a job—and that job is not to educate the public on the very real anguish that is undeniably suffered by sexual-abuse survivors. No, Henein’s job is to represent her client against the serious criminal allegations with which he is charged.
Her job is to advance a theory of the case that differs from that of the Crown’s. She must ensure that the evidence has been rigorously tested and that if Ghomeshi is found guilty, there is absolutely no room left for doubt.
But while doing this job, any competent criminal defence lawyer must acknowledge that there are limits in place as to what is admissible during cross-examination of a sex-assault complainant. For instance, things like past sexual history cannot—and should not—be used to discredit a witness. Rightly so. After all, an individual’s sexuality and past sexual behavior has absolutely no bearing on whether or not they have been or could be victimized on a particular occasion.
The Jian Ghomeshi case has been renewing the public’s interest in the role that criminal defence lawyers play. Craig Takeuchi
However, within the boundaries of these limitations, Henein still has a job to do.
Over the years, I’ve often heard of a phenomena referred to as the “criminal defence attorney’s trilemma”. This refers to the very precarious balancing act that all lawyers—but especially those in criminal defence—must engage in to maintain their responsibilities to their clients, the legal system, and themselves. The ‘hows’, ‘whys’, and ‘wheres’ of assigning and maintaining these responsibilities is where the ‘trilemma’ comes in.
The three-pronged responsibility of a criminal defence lawyer may come as a surprise to many people. After all, lawyers are often characterized and satirized as money-driven, egomaniacal madmen, hell-bent on advancing their client’s interests no matter what the cost or ethical implications—and criminal lawyers, like Henein, are often seen as the worst of worst.
In reality, however, all lawyers are professionally and ethically obligated to act as officers of the court. It is a lawyer’s duty to respect the requirement for justice and truth-seeking within the confines of an adversarial system—which is exactly what Henein has been doing throughout the Ghomeshi trial.
So while the perpetrators of sexual assault should be condemned, and its victims respected and understood, criminal defence lawyers play an important, difficult, and essential role in our criminal justice system.
This is something that the public must keep in mind when watching—and criticizing—the proceedings and its players.
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