Most people don’t understand the astonishing difference between the responsibilities of a prosecutor as well as the responsibilities of a criminal defense Lawyer.
A number of years of maturity helped you understand why it is certainly and constitutionally necessary for the part of a prosecutor and also the role of the defense attorney to be entirely different. Over the years many people have asked the question, how can a criminal defense lawyer represent a guilty man. This question has not only been asked. The great majority of people can’t comprehend the defense lawyers function and believe the system would work better without their presence.
The prosecutor’s ethical duty is summarized in a comment to the rules regulating the Florida Bar which provides that a prosecutor has the responsibility of a minister of justice and not only that of an advocate. Ethical rules develop a dual duty on the prosecutor to guard the rights of the accused as well as enforce the right to the public.
The word “solicitor” brings to mind courtroom dramas and Perry Mason. In reality, the role of a defense attorney is not considerably different from what you see on television. Whether he deals with criminal or civil cases, a defense attorney is an advocate for the accused, charged with protecting his client’s interests and making sure the law works as it should.
Assessing the Case
A criminal defense attorney’s job begins long before he sets foot in a courtroom for trial. He must have a firm understanding of every detail of his client’s case. Some large law firms have investigators on retainer to do the work of interviewing the state’s witnesses and potential witnesses for the accused. Other attorneys will do this work themselves, in addition, to assess crime scenes and police reports. After all, information is assembled, it’s the defense attorney’s job to determine his client’s odds of acquittal or conviction and to begin planning how to best present the case to the court.
It’s not unusual for the prosecutor — the state’s lawyer — to contact the defense attorney early on in a case and make an offer for a plea bargain. This generally involves the defendant pleading guilty, but to a lesser crime than the one the state has charged him with. In exchange, the state saves time and money because it does not have to go to trial. The defendant receives a lighter sentence. It is the defense attorney’s function to find out if accepting the deal is in his client’s best interests, based on the investigation he’s already done. He might also negotiate with the prosecutor to attempt to get an even better deal.
Trying the Case
Ultimately, it is the accused’s decision whether to accept a deal or to go to trial. His attorney’s role is real to counsel him which he thinks is the smartest choice, but ultimately, it’s the defendant’s alternative. If a case goes to trial, the intricacy of the attorney’s job depends on whether a jury or an individual judge hears the case. If a jury is involved, the lawyer’s role becomes one of assessing how each prospective juror will feel about his client along with the charges his client is facing. Through voir dire, a process of questioning and rejecting or approving jurors, he’ll attempt to produce a panel that is certainly sympathetic to his customer. This is something similar to a chess match since the prosecutor simultaneously does the same. When the trial commences, the attorney’s job shifts to presenting evidence and testimony according to his state’s rules of court in an effort to exonerate his client.
A public defender’s job is identical to that of a private defense attorney, however, he may not always have the capacity to commit exactly the same extensive time to it as a lawyer practicing in the private sector. Public defenders are employed by the state to represent defendants who cannot afford to pay an attorney to defend their rights. At any given time, there may be many such defendants in the court system, and also a public defender must split his time plus attention among all of those assigned to him.
Civil Defense Attorneys
The main difference between a criminal defense attorney along with a civil defense lawyer is that the latter defends his client against charges leveled by someone apart from the government. His client doesn’t face jail time or a criminal record, but rather the possibility of having to pay financial damages or restitution for wrongdoing, such as if he violated someone’s rights or broke the terms of a contract. In one respect, a civil defense attorney’s job is more challenging, yet, at least during the trial period. The state must prove criminal charges beyond any reasonable doubt. A civil litigant or his lawyer just has to demonstrate that there’s a probability the customer committed the act he is accused of.
Significance of A Defense Lawyer In The Criminal Justice System
The criminal justice system is seen as a three-part system consisting of the judge and jury, the prosecutor, and the defense lawyer. Each part of this system has a unique function. The function of the judge and jury is to render an impartial decision based entirely on the facts presented and also the laws relevant to the charged offense. To be able to decide impartially, the judge and jury should be able to hear arguments from both sides. The prosecutor’s role would be to assert the side of the state that seeks to establish the defendant’s guilt. The defense lawyer’s job would be to claim on behalf of the defendant. The defendant doesn’t have any burden of proof. That is, the defendant does not need to demonstrate his innocence. It is enough merely to point out ways where the state hasn’t established guilt (e.g., an eyewitness has poor eyesight or an accuser has a motivation to lie).
The criminal justice system recognizes that in a criminal proceeding the state is claiming its greatest power over an individual civilian; the defense carefully observes the use of the ability. Moreover, distinct safeguards are in place to prevent exploitation of the state’s power.
The state bears the highest burden of proof and must show that a defendant is guilty beyond a reasonable doubt of the crimes he is charged with.
No burden is placed on the defendant. That is, he need not present any evidence and he need not testify or give his own version of events. The state may not remark on the defendant’s decision not to testify and the jury might not consider it in evaluating the case.
Many procedures are in place linked to the investigation and the arrest of the defendant to ensure all evidence is accurate and that the correct person is charged with a crime.
Defendants possess civil rights to ensure they truly are treated fairly and given the opportunity to argue their case.
Safeguards, however, are useless without someone to guarantee or police them. This really is the job of the defense lawyer.
The defense lawyer presents all evidence to rebut the prosecutor’s arguments and challenges all questionable assertions of facts by the prosecutor to ensure the high burden of proof is fulfilled.
The defense lawyer challenges procedural blunders and might seek to have charges dismissed because of unreliable evidence or testimony.
The defense lawyer notifies the defendant of his rights and defends those rights to ensure they haven’t been offended.
The Role of the Defense Attorney: Not Only an Advocate
Virtually all difficult ethical problems arise from conflict between a lawyer’s duties to clients, to the legal system and to the attorney’s own interest in remaining an ethical person while earning a satisfactory living. The planned hypothetical definitely illustrates the truth of the statement quoted above from the Preamble to the ABA Model Rules of Professional Conduct.
The preamble isn’t frequently referred to in legal scholarship and some might even look at its use as an overly simplistic view of a complicated problem. In this essay it really is suitable, nevertheless, to start assessing the hypothetical by remembering the function of the lawyer. The tripartite role of the solicitor is the beginning point when dealing with what has been called the criminal defense attorneys trilemma. To try to answer the question from the myopic view of merely an advocate is always to miss the important role that lawyers play in society as a whole. It’s imperative that this ethical dilemma is valued by employing a mixture of all of the duties required of the attorney in today’s American legal system.
The unwillingness of attorneys, whether criminal defense or others, to presume all the roles assigned to them has led, in part, to the negative public perception that has plagued the legal profession.3 The Model Rules of Professional Conduct define the function of the attorney as threefold: A lawyer, as a part of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.4 The language doesn’t identify the parts based on the sort of law the lawyer practices nor does it prioritize the different functions. This lack of differentiation contributes to the conclusion that all lawyers, regardless of what area of law, have a duty that goes beyond simply advocating for the client. A lawyer must act as an official of the court, respecting the necessity for truth and truth-seeking within the boundaries of the adversary system and as an active participant of a system that places justice as a core value.
Function of the Criminal Defense Lawyer in Representing the Mentally Impaired
Defendant: Zealous Advocate or Officer of the Court
The role of the criminal defense lawyer will be to provide zealous representation within the bounds of the law.’ In theory, the criminal defense lawyer, as a vigorous promoter, will use any legitimate way of securing a favorable result for a customer, constrained only by counsel’s competing obligations as an officer of the court. In practice, however, defense counsel regularly faces considerable uncertainty in determining what constitutes appropriate advocacy in a given situation.
Nevertheless, counsel frequently must make tough choices among conflicting moral norms. Most criminal practitioners, lacking clear replies and being pressed for time, will base such decisions mostly on their comprehension of what is expected of a lawyer representing a “guy in trouble.” Not only do most criminal defense lawyers view their function as demanding unwavering loyalty to their clients, but this client-above-all viewpoint shapes their resolution of hard ethical problems.