Arguing wrongful convictions

Recent Court of Appeal decisions have made some defence lawyers worried that doing their job -- arguing forcefully against a potential wrongful conviction -- will land them in the soup. Well, thanks to the CLA Listserve here's a quote that may help.



In the April 1957 edition of the Canadian Bar Review, the late Arthur Maloney (a counsel whose very name means integrity) wrote a masterpiece article on defence jury addresses. In it he offered the following advice:



"May you mention the consequences of a guilty verdict in your closing speech? Some counsel are so fearful of offending against the rule which prohibits us from discussing the consequences of a verdict of guilty that they are afraid to remind the jury forcefully of the heavy burden of responsibility resting upon them and of the grave injustice they may do the accused if they go outside the evidence or fail to give him the benefit of every reasonable doubt. With the rule in mind, I have sometimes used some such formula as the following in an address to the jury and, in my opinion, it is perfectly proper:



'If you are satisfied of the accused's guilt with the moral certainty which is required, it would be unconscientious of you to acquit him simply because otherwise he will be likely to go to prison for a long period of years.



But , in considering the care with which you should appraise the evidence, bear in mind what the consequences of a mistaken verdict of guilt will be--- long years in the grim, bare solitude of a prison cell. What a terrible fate for a man not guilty of the crime alleged! What bitter thoughts would assail his mind as he contemplated the irreparable wrong you would then have done him!'"