The Rights and Wrongs of Criminal Defense

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(Guest post based on US criminal law and general issues) There is probably no area of law that engenders more controversy and criticism than the field of criminal defense. In particular, the public and the media are merciless in their condemnation of an attorney who undertakes the defense of a person who is widely assumed to be guilty of a particularly heinous crime. This arises largely from ignorance about the entitlements of those accused of crimes, and about the responsibilities of defense lawyers.

These rights and responsibilities are basically defined in the Fifth and Sixth Amendments to the Federal Constitution. Under these, every person accused of a crime has the right to a speedy and fair trial, and this includes the right to be represented by counsel. The accused person cannot be deprived of liberty, life, or property without due process of law being carried out. It follows from this that, irrespective of what the accused person has done, or of his or her moral standing, he or she is only guilty in law if the prosecution proves guilt beyond reasonable doubt. The role of the criminal defense lawyer is therefore not necessarily to prove that the defendant is innocent, but to ensure that the validity of every part of the prosecution’s case is examined and challenged

Ways to Defend

The most common way of defending a client is to endeavor to strike down part of the prosecution’s evidence. For instance, if the defense can provide an alibi witness, this may help to show that the defendant could not have committed the crime. However, there are other types of defense, known as affirmative defenses, which rely less on disproving the case for the prosecution, and more on the defense providing evidence in support of the defendant’s innocence. One example is insanity, in which you agree that you committed the act, but argue that you were not in a mental state to understand what you were doing. Other affirmative defenses include coercion or duress, in which you attempt to show that you only committed the crime because you were subjected to, or threatened by, unlawful force; and self-defense, in which you plead that you committed the act because it was the only way to defend yourself.

Ethical Dilemmas

There are a number of major ethical dilemmas that can confront the defense attorney, one of which arises when the client discloses facts that would be certain to result in a conviction, if placed before the court. There is a school of opinion that holds that a defense lawyer should refuse to defend an accused person if he or she believes the person to be guilty. However, others point out that under the constitution, every accused person has the right to a defense, and it is not the function of the attorney to prejudge the client’s guilt or innocence.

Another possible ethical dilemma arises when the defense counsel becomes aware that the client intends to commit perjury when testifying. The attorney cannot prevent the defendant from testifying, because of the defendant’s right to testify under the Fifth Amendment, but also cannot disclose this information because of the duty of confidentiality. Another example is the situation where the attorney is questioned in court about the client’s previous convictions, where a truthful answer could violate the client’s right to confidentiality, while withholding the information violates the duty not to mislead the court. The American Bar Association created the Rules of Professional Conduct to act as a guide for attorneys faced with ethical dilemmas. However, in situations where it is impossible to abide by one rule without violating another, attorneys have to make their own decisions in a way that best protects their professional integrity.

There is no ambiguity about the right in law of every accused person to a fair trial and to the assistance of counsel. The difficulties arise from the ethical issues involved, especially in cases where the defendant has admitted guilt. Criminal defense attorneys often have an extremely difficult task, but can always be confident that by undertaking this responsibility they are upholding the principles of justice and the integrity of their profession.

Author Bio

Cameron Tracy is a writer who creates articles in relation to the field of law. The article explains some issues defense attorneys face and was written on behalf of Federal Defenders of San Diego.