Defense Counsel

by

Eric Bellone

• LAST REVIEWED: 27 November 2023
• LAST MODIFIED: 27 November 2023
• DOI: 10.1093/obo/9780195396607-0332

Introduction

The role of defense counsel is complex. Defense counsel has the duty to help the defendant navigate the complexities of their criminal defense while formulating and implementing defensive strategies. Although defense counsel is guaranteed under the US Constitution, at what point that right attaches and what duties defense counsel owes the defendant have evolved over time.

General Overviews

The Sixth Amendment of the Constitution requires that virtually all criminal defendants have legal representation. Bellone 2013 and Prelaw—What do lawyers do? state that a criminal defense lawyer represents a defendant accused of a crime in a criminal prosecution. Banks 2017 explains that duties of defense counsel include: investigating the crime, interviewing the accused, contacting the prosecutor (including plea bargain negotiations), interviewing witnesses and police, preparing for trial, representing the accused at pretrial hearings, and representing the accused at trial and sentencing. When necessary they prepare an appeal. Harlow 2000 maintains that defense counsel is the counterbalance to the prosecutor in the criminal justice process. The prosecution represents the government. In a criminal case, only the government (federal or state) can bring a criminal charge against a defendant. Siegel and Senna 2008 outlines that American courts are an adversarial system where the prosecutor and the defense publicly clash over the facts and the law. Sharma, et al. 2022 states the prosecutor argues for the state and must prove all the elements of the charge beyond a reasonable doubt. Defense counsel argues for the defendant, making sure that the defendant receives all constitutionally mandated due process, and that the prosecutor respects the defendant’s rights. All parties must operate within the law. Meinhold and Neubauer 2015 states that the of Rules of Criminal Procedure, the Rules of Evidence, and the US Constitution ensure that the defendant obtain a fair trial. Wright and Roberts 2023 maintains that defense counsel guides and advises the defendant through the multiple stages of the criminal justice process. A major responsibility of defense counsel is to advise and shepherd their clients through the complexities of criminal law and procedure. Breyer 2000 maintains they also safeguard the defendant’s constitutional rights throughout the justice process. Defense counsel handles all dealings with the prosecution. After defense representation has been formalized, the prosecutor cannot contact the defendant without defense counsel being present. Uelmen 1995 maintains that an important role of defense counsel is to protect against prosecutorial abuse and overreach. It is the duty of defense counsel to ensure that the prosecution proves every element of the charges brought against the defendant “beyond a reasonable doubt.” Rhodes 2013 holds they make sure that the prosecution does everything properly and according to the rules of evidence, criminal procedure, and the Constitution.

• Banks, Christopher P. 2017. The American legal profession: The myths and realities of practicing law. n.p.: CQ Press.

  An overview of the legal profession from law school through legal practice with an emphasis on the practical aspects of being a lawyer.

• Bellone, Eric T. 2013. Defense counsel – Sixth Amendment. In The encyclopedia of criminology and criminal justice. Vol. 2. Edited by J. S. Albanese, 552–559. Hoboken NJ: Wiley-Blackwell.

  A synopsis of defense counsel outlining the function, history, and challenges of defense counsel in the criminal justice system.

• Breyer, Stephen G. 2000. The legal profession and public service. National Legal Center for the Public Interest.

  A discussion by the Supreme Court Justice of the public service tradition of the American lawyer and how that tradition may be under threat.

• Harlow, C. 2000. Defense counsel in criminal cases. Washington, DC: Bureau of Justice Statistics.

  A statistical report on indigent representation covering types of programs, crimes, workloads, and outcomes in criminal cases.

• Meinhold, Stephen Scott, and David W. Neubauer. 2015. Judicial process: Law, courts, and politics in the United States. 7th ed. Mason, OH: CENGAGE Learning Custom.

  An analysis of the legal profession from a law and politics standpoint. It evaluates law from its underlying assumptions through the history, traditions, of legal rulings.

• National Association for Legal Career Professionals. n.d. Prelaw – What do lawyers do?.

  Synopsis of the types of lawyers and the “nuts and bolts” of the profession. It provided short explanations of traditional legal practice as well as non-traditional legal paths.

• Rhodes, Deborah L. 2013. Access to justice: An agenda for legal education and research. Journal of Legal Education 62.4: 531–550.

  Outlines an agenda for an empirical analysis of the lack of access to justice through defense counsel for indigent defendants. This work relates history of the issue, where the data is now, and research the needs to be done.

• Sharma, M., L. Stolzenberg, and S. D’Alessio. 2022. Evaluating the cumulative impact of indigent defense attorneys on criminal justice outcomes. Journal of Criminal Justice 81:101927.

  DOI: 10.1016/j.jcrimjus.2022.101927

  Analyzes the impact of public defenders and assigned counsel decision points encountered by criminal defendants as they progress through the criminal justice system.

• Siegel, Larry, and Joseph J. Senna. 2008. Essentials of criminal justice. Belmont, CA: Wadsworth.

  Text of the major issues of the criminal justice system with a section on defense counsel and related topics.

• Uelmen, Gerald F. 1995. 2001: A train ride: A guided tour of the Sixth Amendment right to counsel. Law and Contemporary Problems 58.1: 13–29.

  DOI: 10.2307/1192165

  Through the metaphor of a train ride, the author provides a summary of the Sixth Amendment with an emphasis on the right to defense counsel.

• U.S. Constitution Amendment VI (1791).

  States that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

• Wright, Ronald, and Jenny Roberts. 2023. Expanded criminal defense lawyering. Annual Review of Criminology 6:241–264.

  DOI: 10.1146/annurev-criminol-030421-035326

  Provides an overview of defense counsel with a review of its basic functions both inside and outside the courtroom.