Defense Attorney

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Defense Attorney in the United States

A lawyer who represents the defendant in criminal or civil cases. A defense attorney responds to the charges or claims of the other party and offers evidence and reasons that the prosecution or plaintiff should not prevail. While defense attorneys do appear in civil cases, the term defense attorney or defense counsel is generally used in referring to that small portion of lawyers who represent persons accused of crimes. Defense lawyers act both to represent and protect the defendant’s interests and to advise the accused of legal and strategic options. Representation includes advocacy, which manifests itself in several ways. Defense attorneys must protect a defendant’s legal rights. This may include filing motions challenging the sufficiency of searches or custodial interrogations. Advocacy also involves aggressive challenging of the prosecutor’s case. Prosecution witnesses are cross-examined during trial in an attempt to diminish their impact on the defendant. In some instances, the defense will not only attempt to react to the state’s case, but alternatively advance an affirmative defense as well. The defense attorney’s role as counselor involves both advice on legal points and the informal norms of the local criminal justice community. Most defense attorneys are familiar with assistant prosecutors and local trial judges and frame strategies based on what they know of established patterns of behavior. This may be of particular importance in developing a negotiating strategy. Few criminal cases are actually tried, and few defendants walk away from criminal charges. The defense lawyer must typically resolve a case by negotiation, evaluating what the state can prove and seeking an outcome that might mitigate damage to the defendant. Winning in such situations is measured by avoiding long periods of incarceration

Analysis and Relevance

Assistance of defense counsel in criminal cases was seen as a fundamental right and was included in the Sixth Amendment to the United States Constitution. It was viewed as essential that a person charged with a crime be able to access the “guiding hand of counsel.” The counsel protection was initially viewed as meaning that the state could not interfere with an accused’s desire to consult counsel. Beginning in the 1930s, this protection was expanded in several ways. First, the Supreme Court developed an interpretation of the Sixth Amendment that held the states responsible for providing indigent defendants with lawyers. This requirement prompted establishment of public defender systems in a number of jurisdictions. Appointment of private lawyers on a case-by-case basis was used in the remaining jurisdictions. Second, the Court began to see many steps in the criminal process occurring both before and after the trial as stages “critical” to a defendant’s interests. Thus counsel was required at such stages as station house interrogations, arraignments, and sentencing. Finally, the Court required that the right to access counsel be fully explained to the accused. The performance of defense counsel is key to the sufficiency of justice in our adversary system. The Supreme Court decisions expanding the scope of constitutional protections clearly underscore the fundamental role of defense attorneys.

Notes and References

  1. Definition of Defense Attorney from the American Law Dictionary, 1991, California

Defense attorney in Juvenile Law

In this context, Defense attorney information is available through this American legal Encyclopedia.

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Defense Attorney: Open and Free Legal Research of US Law

Federal Primary Materials

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State Administrative Materials and Resources

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