Q: What is the job of the criminal defense lawyer?
A: The criminal defense lawyer does not simply question witnesses when representing an accused person in court. The lawyer also must make sure that the client is afforded all of the protections provided through the laws and constitutions of federal and state governments.
Q: What, specifically, does the criminal lawyer do to make sure an accused person is protected?
A: Once a person has been formally accused of a crime, he or she goes to court for an “arraignment.” An arraignment is a formal reading of the criminal complaint to inform the accused person of the charges. At this event, the accused person (or the lawyer, on behalf of the accused) will enter a formal response to the charges, called a plea, which will then be presented to the judge. After the arraignment, the lawyer will have time to conduct an investigation, review police reports and examine the evidence to prepare for trial.
Q: What does the criminal defense lawyer do for the accused person after the arraignment?
A: In the course of investigating and representing someone who has been accused of a crime, the criminal defense lawyer will:
• provide an objective perspective of the client’s situation and explain to the client what is likely to happen, which is vital for the client, especially in making a decision about how to respond to any “plea bargain” a prosecutor may offer;
• negotiate with a prosecutor on behalf of the client in an attempt to reduce the charges or lessen the punishment recommended by the prosecutor at sentencing;
• suggest sentencing, treatment, and rehabilitation programs tailored to the client's specific needs, which may help the client avoid future brushes with the criminal justice system;
• counsel the client about the way criminal laws will likely be applied, which can be difficult for a lay person to assess, especially since criminal laws have been interpreted in different ways by federal and state courts;
• help to familiarize the client with local court customs and bring knowledge about the process that isn’t written down (for example, a defense lawyer may know which prosecutor has the "real" authority to settle a case, and what kinds of arguments are likely to appeal to a particular prosecutor);
• gather information from prosecution witnesses, who may fear providing information directly to someone accused of a crime, and may be much more likely to speak to a lawyer than to an accused person attempting to represent himself/herself.
Q: What does the criminal defense lawyer do to help the accused person once all the information has been gathered?
A: Before the trial starts, and sometimes during a trial, the case can “settle.” This happens through negotiations with the prosecutor, who may offer a “plea bargain” that could result in reduced charges or a recommendation of a lesser sentence. Generally, it is in the accused person’s best interest to discuss a prosecutor’s plea offer with a defense lawyer before deciding to accept or reject the offer. A defense lawyer can also help in proposing an alternative to the prosecutor.
Q: Is it helpful for an accused person to be represented by a criminal defense lawyer, even if the crime is only a misdemeanor?
A: While our system of justice is set up to consider an accused person “innocent until proven guilty,” an accused person is up against experienced, government-funded prosecutors and inexperienced jurors. Most accused people will benefit a great deal in mounting an adequate defense with help from a defense lawyer. Ideally, good criminal defense lawyers will fight for their clients because of a committed belief that defending the accused’s constitutional rights will hold the prosecutor to the requirement that, in working to secure a conviction, he or she must prove every part of the case against the accused person, no matter what the charge is. When constitutional rights are upheld, the result is more likely to be just.
Q: What happens if an accused person cannot afford a criminal defense lawyer?
A: Our justice system provides that a person charged with a criminal offense that could result in a jail term is entitled to be represented by a defense lawyer. The state pays for a “public defender” to represent the accused person in such a case.
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Castalia attorney Roger S. Stark.