What does a criminal defense lawyer do?
What does a criminal defense lawyer do?
Few roles in the US justice system are as important and decisive.
Defense attorneys play a pivotal, central role in the American criminal justice system. Whether they are a court-appointed defendant or private attorney, defense attorneys serve as the defendant’s representation and guide through the system, addressing both the nitty-gritty details of the case as well as the practical implications for the defendant.
Let’s examine the two principle types of criminal defense attorney, the roles they play in the criminal justice system, and some considerations for when each type of representation is most appropriate.
Two Main Types of Criminal Defense Attorney
Criminal defense attorneys fall into two broad categories: those that are court-appointed (paid for by the government), and those that are privately hired to represent the defendant (and paid for by the defendant). In many cases, defendants are not in a financial position to hire their own private counsel, and therefore are represented by default by a court-appointed attorney. These court-appointed attorneys are known as public defenders.
The sad reality is that in the United States, a majority of criminal defendants cannot afford to pay the hourly rates or fixed fees that specialized, private criminal defense attorneys generally charge. A defendant in this position is referred to as indigent. As mentioned, an indigent defendant is represented by a public defender by default.
The right to a “free” defense attorney (paid for by the government) is applicable specifically in cases where the indigent defendant is facing jail time. And while an indigent defendant has the right to free representation, they do not have the right to select the specific public defender attorney assigned to them.
In either case, it is illegal for the defense attorney to charge contingency fees: costs to the defendant that depend on the outcome of their case.
About Private Criminal Defense Attorneys
While public defenders work for the government, private attorneys operate just outside the system, often with a professional background that includes working within it. Frequently, they are former prosecutors or public defenders with extensive insider knowledge into the local system in which they work. This insider familiarity—along with specialization into specific types of cases—is often key to their success.
Because private attorneys are not constrained by the case assignments of a governmental body, they often have an increased ability to specialize in particular types of cases (such as traffic tickets).
When evaluating a private attorney, the foremost qualities to look for are specialization in the area relevant to the case, and familiarity with the jurisdiction (and its personalities) in which the charges are pending. In other words, a local attorney who knows the area’s judges and prosecutors, with specialized knowledge regarding the type of charge, is of tremendous value.
The Role of a Defense Lawyer in Criminal Cases
The best criminal defense attorneys perform the comprehensive research, investigation, and analysis necessary to effectively defend their clients against the prosecutor's case.
This can include analyzing the prosecutor’s case against the defendant—to which the defense attorney must legally be granted access—questioning witnesses, gathering and examining evidence, and much more. Ultimately, their goal is to reduce some combination of the defendant’s bail, charges, or sentence.
Additionally, it is also the defense attorney’s job to act as the defendant’s guide through the complex and sometimes perilous criminal justice system. The attorney is the person most qualified to provide a reality check on the likely outcomes of the case, taking into regard the facts of the case and criminal history (or lack thereof) of the accused. At other times, the defense attorney may simply help the defendant manage their concerns and fears surrounding the case, and what the outcome could mean for their life and that of their family.
Despite Hollywood and the general public’s preoccupation with high-profile trials, the reality is that less than 5% of the thousands of cases handled by the system each day are handled by trial. For the remainder, the outcome of the case is determined by plea bargain. In those instances when a plea deal can’t be made, the case proceeds to trial, with the defendant being represented by their defense lawyer. The defense lawyer also represents the defendant during pretrial.
In the event of a trial, the defense lawyer participates in the jury selection process, to help ensure that jurors who might be biased against the defendant are removed from the process.
There can be no doubt that interactions with the US criminal justice can be notoriously complex, expensive, and harrowing. Every criminal case is a unique matrix of circumstance, evidence, local jurisdictional laws, and individual human factors (including the financial means of the defendant). Any number of these factors might influence whether a public defender or private criminal defense attorney is most applicable—or affordable—for the defendant’s case. Local, specialized, insider legal representation can be a game-changer for a defendant facing criminal charges.