Why Defense Attorneys Cannot, But Do, Care About Innocence

78 Pages Posted: 15 Apr 2009 Last revised: 18 Dec 2009

See all articles by Robert P. Mosteller

Robert P. Mosteller

University of North Carolina School of Law


At a time of special concern for the innocence, this article reexamines the apparent anomaly that trial-level defense attorneys claim they care neither about guilt nor innocence. Innocence currently fuels procedural reforms benefitting criminal defendants, but that effect could change, and innocence might become a wedge issue dividing progressives if reforms promise targeted protection for the innocent. Defense counsel attitudes about the irrelevance of innocence seem to invite such division. I explain why excellent counsel for all, not just the apparently innocent, should be strongly supported by innocence advocates.

Defense counsel institutionally cannot allow apparent guilt to affect their zealous representation. Although special treatment for those perceived innocent could likewise devolve into second-class representation for many, the problem with special care for the apparently innocent is less institutional than practical. Virtually all those charged with serious crimes assert innocence to their attorneys, who possess no reliable way to determine truth in seriously contested cases. Nevertheless, defense attorneys actually do react differently when they believe they have encountered innocence. The hard-boiled defense attorney's unconcern with innocence is largely necessary but not fully accurate.

I find no "magic bullet" to allow defense attorneys to focus on the likely innocent, only tolerable compromises. Those committed to protecting the innocence should vigorously support adequate resources for defenders who represent the unsorted mass of criminal defendants. Such defenders provide the best hope for many innocent defendants who, lacking clear proof of innocence, are hidden among the guilty.

Suggested Citation

Mosteller, Robert P., Why Defense Attorneys Cannot, But Do, Care About Innocence. Santa Clara Law Review, Vol. 50, 2009, UNC Legal Studies Research Paper No. 1381003, Available at SSRN: https://ssrn.com/abstract=1381003

Robert P. Mosteller (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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