What is Criminal Defense?

A defense attorney serves as the defendant’s adviser, guardian, and confidant in the complex criminal court system. (At least, that’s how it’s meant to work.) Court-appointed attorneys, who are paid by the government, and private attorneys, who are paid by the defendant, are the two types of defense attorneys.

Some criminal defendants have the financial means to engage a private criminal defense lawyer. The court may appoint counsel to represent criminal defendants who cannot afford an attorney (about 80% of all criminal defendants) (assuming certain qualifications are met). These court-appointed counsel are either government-paid public defenders or so-called “panel attorneys,” who are local attorneys picked from a pool. A small percentage of criminal defendants (about 2%), known as “pro se” or “pro per” defendants, represent themselves in court.

What is the definition of criminal defense law?

Criminal defense law refers to the legal safeguards provided to someone accused of committing a crime. Government prosecutors and law enforcement organizations have a wealth of resources at their disposal. The balance of power within the court system would become tilted in favor of the government if the accused were not adequately protected. As it is, fair treatment for criminal defendants often hinges on the skill of their defense attorney as much as it does on the law’s fundamental protections.

Defense attorneys understand how to employ constitutional provisions to their clients’ benefit. All criminal cases, for example, are based on evidence acquired by the government. Physical evidence, witness accounts, confessions, drug and alcohol tests, and so on are all examples of this. The Fourth Amendment to the United States Constitution (applied to states by the 14th Amendment) prevents the authorities from gathering evidence through excessive searches and seizures. If they do, a defense attorney will request that the evidence be suppressed so that it cannot be utilized at trial.

Many more protections are provided by the Constitution in the sphere of criminal defense law. According to the Fifth Amendment’s “double jeopardy” provision, someone who has been tried and acquitted of a crime cannot be charged with that crime again. Criminal defendants have the right to a public trial and, in many situations, the right to have their guilt or innocence decided by a jury under the Sixth Amendment. It also gives you the right to confront opposing witnesses and use the court’s subpoena power to compel favorable witnesses to appear.

What is the Role of a Criminal Defense Lawyer?

Criminal defense lawyers (both private and court-appointed) conduct research, investigate the case against their clients, and attempt to reach agreements with their opponents (prosecutors). Bail may be decreased, charges may be reduced, and sentences may be reduced as part of these agreements. Deal-making has grown in prominence and has become a crucial part in unclogging the criminal justice system as a result of a number of circumstances, including political and public pressure, overcrowded jails, and congested court calendars.

Criminal defense lawyers also interrogate witnesses, assist in the formulation of a plea, analyze the prosecutor’s case, evaluate potential penalties (and the possibility of a specific judge imposing such a penalty), review search and seizure procedures, ask witnesses, and gather evidence. A lawyer for the defense can also advise on the immigration implications of a plea, conviction, or criminal record.

Defense attorneys also give more personalized services by providing a realistic assessment of the likely results and assisting the defendant in dealing with the frustrations and fears that come with being thrown into the criminal court system. Of course, if a plea deal cannot be reached, the defendant is represented at trial by the defense lawyer.

Legal Representation Costs

When it comes to legal representation, the defendant’s financial situation and ability to afford private counsel are critical considerations.

Private criminal defense attorneys bill by the hour (expect to pay $150 or more per hour) or by a fixed or set price. They are not allowed to charge contingency fees, which are payments that are contingent on the case’s outcome. The court may appoint a government-paid public defender or panel attorney if the defendant is poor (unable to pay private counsel).

Some people—but not many—have enough money to hire a lawyer without it being a financial burden. Getting legal representation, on the other hand, is sometimes more difficult for those who fall somewhere in between these two groups.

The bottom line for courts is that once a destitute defendant faces a jail or prison term, the entitlement to free (government-paid) defense counsel generally kicks in. If incarceration is not a possibility—for example, if a judge announces on the record that she will not sentence the defendant to prison—then the defendant may not be entitled to free legal representation (depending on state law).

It’s important to note that the right to free legal representation does not imply the freedom to choose your own lawyer. A defendant who has been appointed counsel usually does not have the same freedom as a paying defendant.

Is Hiring a Private Lawyer Better Than Hiring a Court-Appointed Lawyer?

Defendants may assume that private counsel have an edge over the overburdened public defender’s office or panel attorneys who are paid a low fee. Do private attorneys, on the other hand, provide greater representation than court-appointed, taxpayer-funded defense counsel?

Many private lawyers have previously worked as prosecutors or public defenders. According to research comparing the outcomes of having a private attorney with a court-appointed attorney, the consequences for defendants are generally the same. According to one study, defendants represented by private lawyers and those represented by public defenders had identical conviction and sentencing rates (although those represented by panel attorneys fared worse). Because of confounding issues, such statistical evidence is not always reliable or obvious. Clients represented by private counsel, for example, are more likely to have little or no prior criminal records, but indigent defendants are twice as likely to be repeat offenders. What’s also unknown—and one of the criminal justice system’s biggest unknowns—is whether private attorneys can negotiate better plea offers than court-appointed counsel.

Ultimately, the expertise, talents, and devotion of the individual attorney on hand—whether a public defender, panel attorney, or private lawyer—are the best indicators of the quality of the counsel.

Representation of Oneself (Pro se)

It is undeniable that having a lawyer represent you is virtually always the best option. Despite this, some criminal defendants choose to represent themselves in court. The judge, not the defendant, makes the final judgment on whether or not a defendant can self-represent. The defendant’s competency must be determined by the judge. This is because, even if the defendant is insistent about not accepting the services of a court-appointed attorney, a defendant who cannot provide a competent defense will not be given a fair trial. A judge will examine the following elements while deciding whether a defendant can go pro se:

The gravity of the offence, the defendant’s language abilities and education, whether the defendant understands the nature of the proceedings, and whether the defendant is knowingly waiving his right to counsel are all factors to consider.

Locating a Lawyer

Look for a private defense lawyer that specializes in criminal defense and practices in the jurisdiction (city or county) where the accusations are pending. A local lawyer will be conversant with the local judges and prosecutors. Learn more about things to look for in a private criminal defense attorney in this post.

If you don’t have enough money to hire an attorney, you’ll need to ask for court-appointed counsel (either before or during one of your initial court appearances) and complete out our financial resources form.