What Is a Criminal Defense Lawyer?
A criminal defense lawyer represents clients accused of a crime. Criminal defense lawyers may limit their practice to criminal law, or take an occasional criminal case as part of a more general legal practice. Public defenders are criminal defense lawyers paid out of government funds to represent criminal defendants who do not have the resources to hire an attorney.
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History
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Since at least the time of the ancient Greek people's courts, people accused of a crime have been entitled to either represent themselves or to retain the services of a legal expert to assist them. Over time, the role of people skilled in providing legal assistance in court became more formalized, eventually leading to attorney licensing laws. Although these laws vary, in most countries at least some graduate-level legal education is required, followed by passing a licensing test or "bar exam."
Licensing
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In the United States and most Western countries, any attorney may represent defendants; no special license is required to practice criminal law. Some countries, such as England, differentiate between attorneys who practice transactional law, like real estate, and those who may practice in court. However, any court-admitted barrister may engage in both civil and criminal court practice.
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Role
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The prosecutor bears the complete burden of proving beyond a reasonable doubt that the defendant has committed the crime charged. Being a public servant, the prosecutor is obliged to seek and reveal the truth, and to disclose any exculpatory evidence to the defendant. The criminal defense attorney has only one obligation, and that is to defend his or her client within the bounds of the law. A criminal defense attorney may not commit or suborn perjury, but is under no obligation to reveal evidence or witnesses which might help the prosecution's case.
Function
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The criminal defense attorney assesses the case against the defendant to determine if there are errors that warrant its dismissal. Defense counsel then investigates the factual claims, questioning prosecution witnesses and seeking other witnesses and forensic experts who may have a different perspective than those testifying for the prosecution. Defense counsel then engages in frank discussion with the defendant regarding potential defenses, consequences of conviction at trial, and terms of any offers for settlement. Counsel advises his client regarding the risks and benefits of trial and of entering a plea agreement.
Plea Agreements
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The vast majority of criminal charges end in a plea agreement, in which the defendant pleads guilty to either the original charge or a reduced charge, and obtains a sentence that has been agreed upon with the prosecution. The criminal defense attorney advises the defendant of the terms of the agreement, the effect of the conviction and sentence, and the rights that the defendant will be giving up by pleading guilty, including the right to a trial and an appeal of any conviction at trial.
Trial and Appeal
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If the case goes to trial, criminal defense counsel makes an opening statement, cross-examines prosecution witnesses, and is permitted, but not obligated, to present defense witnesses. Counsel makes a closing statement advising the jury of how the prosecution did not fulfill its obligation to prove the case beyond a reasonable doubt. If the defendant is convicted, counsel provides representation at the sentencing hearing. Trial counsel or another defense attorney may represent the defendant on appeal
Public Defenders
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In the early 20th century some communities began providing publicly paid legal representation to indigent defendants. In 1963 the U.S. Supreme Court case of Gideon v. Wainwright, 372 U.S. 335, held that a poor, uneducated man could not adequately defend himself against state charges, and required that legal counsel be appointed to assist him. Today all indigent criminal defendants facing charges that could result in incarceration are entitled to public defender representation.
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References
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- Photo Credit Cindy Hill
