April 4, 2023
What does a criminal defense lawyer do?
If you are like most people, television has probably given you an unrealistic idea of what a criminal defense lawyer does. A real criminal defense lawyer’s day is not typically filled with pounding on tables, giving Oscar-winning speeches to full courtrooms, or performing miracles. Like many jobs, a criminal defense attorney’s job is 99% unglamorous but important work.
The Criminal Defense Process
To better answer “what” a criminal defense lawyer does, it is important to know “how” a criminal defense case works. First, a person is accused of a crime. That typically begins with law enforcement identifying a crime and then identifying a suspect. Once a suspect is identified, they gather whatever evidence they can find. If the evidence convinces them that the suspect committed a crime, they will either make an arrest, issue a citation, or refer charges to the prosecuting attorney’s office. Once one of these three things happens, then a criminal case can begin in earnest. From there, the prosecutor’s office gets involved and brings the case against the suspect to court.
The Importance of Early Legal Representation
This is typically the stage where a criminal defense attorney gets involved in a case, however, it’s always wise to get a criminal defense lawyer involved as soon as possible. That can be as early as the point of being arrested. You’ve probably heard the famous Miranda warnings in which police officers are required to inform you that “you have the right to an attorney” and that “if you cannot afford one, one can be provided at public expense.” Police have to give you that little speech before conducting a custodial interrogation (or questioning following formal arrest). The lucky few who think to speak to a criminal defense attorney immediately following an arrest get the sage advice to invoke their right to remain silent (meaning “don’t answer any questions.”)
Preliminary Appearance and Arraignment
However, in most cases, a criminal defense attorney gets involved once the criminal case goes to court. The first step is conducting a preliminary appearance and/or arraignment. A preliminary appearance is an opportunity for the court to address setting conditions of release and bail for a case. In each criminal case, the judge must determine whether the criminally accused presents a danger to the community and whether they are a flight risk. If one or both of these is the case, the judge may wish to set bail on the matter. This is a “security deposit” that a criminal defendant must pay to get out of jail. The return of that money is conditioned on the criminal defendant attending all court appearances and staying out of any further trouble. Part of a criminal defense attorney’s job is to make sure that probable cause exists for the crimes charged. If probable cause is lacking, then the court lacks the authority to set bail and must release the person charged for free. The court may also set certain rules at a preliminary appearance that the criminal defendant must follow. A criminal defense attorney can argue against those rules that might not be reasonable or necessary.
Entering a Not Guilty Plea and Conducting Investigations
Next, a criminal defense attorney helps enter a formal “Not Guilty” plea to the charges. This plea preserves all rights in a case and allows the defense to fully investigate the case before deciding how to proceed in the case. From there, a criminal defense attorney demands all of the prosecution’s evidence and thoroughly reviews it. Following meetings with the client, a criminal defense lawyer may also learn of additional evidence and witnesses that will help the defense’s case. From there, the criminal defense attorney and defense investigator may conduct further interviews, visit the scene of the crime, and consult with potential experts that might be helpful in the case. Once the investigation is completed, the next phase of the case can begin.
Assessing the Prosecution’s Case and Exploring Options
Following the investigation, a criminal defense lawyer will review everything that was learned with the client and give an honest assessment of the strength of the prosecution’s case. If the case is really strong, there may not be a lot that can be done to avoid criminal liability. Even in such a case, the case can be negotiated to a better resolution. Perhaps the criminal defense lawyer can help the defendant begin taking steps to show positive change by engaging in self-help services that address the underlying problem. In such cases, the prosecution may reward the proactive measures with a more lenient resolution. If the prosecutor’s case is weak, then there may be a basis to win at trial or obtain even more favorable negotiations. Charges can freely be negotiated down and sentences can be crafted to be fairer.
Additionally, if it is learned that the police engaged in any practices during the investigation that violated the defendant’s constitutional or other legal rights, there might be opportunities to suppress evidence from the prosecution’s case. Suppression of evidence is where the court orders that the evidence cannot be used at trial. This can make a seemingly strong case for the prosecution turn into a weak case. This can in turn make the case better for trial or lead to more favorable negotiations.
If the case can be satisfactorily negotiated, then a criminal defense attorney helps the defendant change the plea and resolve the case under a plea bargain. This wraps up the case and sentencing via agreement where everyone is on the same page. At a sentencing hearing, the criminal defense attorney helps convince the judge that the plea bargain is appropriate and should be followed by the court.
Where negotiations fail, a criminal defense attorney fights the charges at trial. At a trial, a prosecutor must try to convince a jury or judge that the defendant committed the crime “beyond a reasonable doubt.” This standard of proof is important to our criminal justice system. It is unconstitutional to be punished for a crime that you “might” have committed or “probably” committed. Instead, people can only be convicted of crimes that they so surely committed that the evidence demonstrates “beyond a reasonable doubt” that the defendant committed the crime. This burden of proof is high, so a good criminal defense attorney will effectively argue that the prosecutor’s case isn’t strong enough to meet that exacting burden of proof. Most importantly, a criminal defense attorney is a salesperson at trial. The product that is being sold is either the innocence of the defendant or the lack of evidence to support the prosecution’s case.
Going to Trial
If the defense wins the trial, the case is over and the criminal defense attorney’s job is done. If the prosecution wins, then the case proceeds to sentence and the criminal defense attorney tries to convince the judge to give the most lenient sentence possible.
Sentencing and Appeals
If there were issues at trial and there is any reason to believe that the trial was not properly conducted, the criminal defense attorney can assist with an appeal to a higher court. In an appeal, the appellant asks the higher court to overturn a conviction and grant a new trial. Appeals are much different than trial court proceedings. Some criminal defense attorneys specialize only in appeals.
The Dynamic Role of a Criminal Defense Lawyer
Lastly, criminal defense attorneys help clients with a wide variety of matters surrounding the criminal courts. This can be helping people vacate old convictions, waive interest on old fines, and restore civil rights that were taken away because of criminal convictions.
It is impossible to list everything that a criminal defense attorney does because each day in the profession brings new challenges and new problems to solve. This outline gives a broad overview without delving into too many case-specific questions. Not a case comes through the door without some new wrinkle that requires research to better understand the law. Every case presents real problems that require skill, education, professionalism, and ingenuity to solve. Criminal defense lawyers are professional fixers who specialize in fixing problems in the criminal court system. Those problems come in a million varieties that are ever-evolving. Perhaps that is why people typically believe that a criminal defense lawyer’s job is hard. It is a job that is hard enough that it requires constant study, interpersonal relationships, professionalism, and wisdom to master.
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