Should I Tell My Florida Defense Attorney If I'm Guilty?

If you are arrested, you hopefully know not to speak to police without a Florida defense attorney at your side. But once your defense lawyer is present, should you tell them the truth, the whole truth, and nothing but the truth - even if you’re guilty? 

As longtime Fort Lauderdale defense lawyers, we know that when it comes to the legal system, few things are black-and-white. Most questions are answered with the caveat: “It depends.” That’s true here too.

There are pros and cons to confessing guilt to your defense lawyer. The biggest upside to the truth is that we can usually build a more solid defense strategy when we know exactly what happened. There are fewer surprises and the defense strategy can be carefully crafted and consistent. 

On the other hand, if you tell us you did it, we’re then basically boxed into that particular version of events. We can’t put you on the stand to testify to the contrary. If you take the stand and lie after confessing to us, we’re bound to report it. Legally (F.S. 90.502(4)(a)) and ethically (ABA Model Rules of Professional Conduct, Rule 3:3), your lawyer cannot aid you in committing perjury (lying under oath). They also cannot offer up any material evidence they know to be false. 

Every case is different, and there isn’t a one-size-fits-all answer. But a few things we can say definitively: 

• There is always a way for a good attorney to defend you. If you confess to your lawyer, it might change the defense strategy. It could even make it more challenging. But that will not change the fact that you can still be defended. We can still argue for reduced charges, suppression of evidence that hurts your case, and lower fines and penalties. 
• What is true and what can be proven aren’t always the same. Courts require evidence. Criminal convictions require proof beyond a reasonable doubt - the highest standard there is. Just because you committed a certain offense doesn’t necessarily mean the prosecutor has the evidence needed to prove it. 
• Guilt doesn’t mean you automatically deserve the book thrown at you. A prosecutor’s goal is often conviction on the highest possible charges with the greatest possible penalties. But people make mistakes. They deserve second chances. Sometimes there are mitigating circumstances that demand consideration. A good defense lawyer can advocate for lower charges, less time behind bars, and terms that will give you the opportunity to start over when this is behind you. 
• Most criminal defense lawyers want you to be honest with them. That doesn’t necessarily mean they always want the whole truth (and some might flatly say so). But outright lying to your lawyer means their ability to defend you is considerably weakened. Most criminal defense lawyers encourage truthfulness so that we know precisely which approaches will and will not work.

You may be wondering why it matters if you tell your lawyer you’re guilty if those talks are supposed to be confidential. For the most part, that’s true. However, there are exceptions. 

Communications with your lawyer for the purposes of preparing your defense are “privileged.” That means your Broward defense lawyer can’t share what you said to anyone else without your permission if:

• The communication was intended to remain confidential. 
• The communication was made in the context of obtaining legal advice. (This is why privilege still applies even when you’re “shopping” for a defense lawyer - even if you don’t ultimately hire them.) 

The attorney-client privilege can potentially be challenged if the intent and/or context of the talk is debatable. This is rare in criminal cases, though. 

The bigger possible issue is the crime-fraud exception. Your attorney needs you to talk freely with them about the alleged crime, which means you can’t be overly-worried that these conversations are going to be used against you. That’s why attorney-client privilege exists. However, the crime-fraud exception arises when an attorney is asked to become a party to a crime or becomes aware of a plan to commit a crime. Most often, this comes up in the context of perjury. If a client wants to lie under oath, the attorney is obligated to try first to convince them not to. But if they can’t, the lawyer is obligated to tell the court about it, thus foregoing attorney-client privilege. 

As noted by the U.S. Supreme Court in 1986 case of Nix v. Whiteside, “The right to counsel includes no right to have a lawyer who will cooperate with planned perjury. A lawyer who would so cooperate would be at risk of prosecution for suborning perjury, and disciplinary proceedings, including suspension or disbarment.” Criminal defendants do not have the right to testify falsely or have their lawyer’s help in doing so. 

Attorneys also cannot keep private information if it’s reasonably believed that disclosing it would be necessary to prevent certain death or substantial bodily harm. (ABA’s Model Rules of Professional Conduct Rule 1.6) So for instance, if you kidnapped someone and they were being kept alive somewhere, your defense attorney would probably be required to reveal that information. 

However, it does not apply to situations in which death or bodily harm has already occurred. Consider the infamous “Buried Bodies Case” in the 1970s. A New York mechanic was accused of murdering several people and confessed guilt to his defense lawyers. He drew a map showing where the bodies could be found. The lawyers went to those locations and verified the bodies were there. Despite this, they felt that ethically and legally, they could not violate attorney-client privilege and disclose to authorities what they’d found, as it would implicate their client. The bodies were discovered months later by other means, and the man was ultimately convicted. But one of the lawyers slipped and mentioned that they actually had knowledge of the bodies six months earlier. They were taken to task by the public, the press, and ultimately prosecutors. One attorney was indicted for obscure public health laws, but the charge was ultimately dropped because of attorney-client privilege. Awful as it might sound, confidentiality rules prohibited the defense lawyers from revealing their knowledge of the bodies except if it might benefit their client’s defense strategy. 

Bottom line: It’s probably best to be straightforward with your criminal defense lawyer. If you aren’t sure, you can always broach the topic with hypotheticals before being completely forthright. 

Schedule a free initial consultation with The Ansara Law Firm by calling (954) 761-4011.