One of the most frequently asked questions we receive is, what does a criminal lawyer do? Contrary to popular belief, criminal defence lawyers represent persons from many different socio-economic backgrounds.
Their clients can include tradespeople, CEOs, taxi drivers, celebrities, corporations, directors, bankers and working parents.
The criminal justice system is based on the concept that the prosecution must prove their case beyond reasonable doubt. Until this point, a person is to be afforded the presumption of innocence.
An oft-quoted principle is that society would rather see ten guilty men go free than one innocent person be jailed.
It is the job of a criminal defence lawyer to represent all of their clients to the best of their ability. This includes using the protections offered by the law. A criminal lawyer must build the client's defence, developing a case strategy, investigate and research legislation and case law, negotiate with the prosecution, and represent their client in court.
What is a Criminal Lawyer's Role?
A criminal lawyer's role is to analyse the evidence police rely on and highlight any issues with the reliability and credibility of this evidence. They must prevent any unreliable police evidence from being used against their client.
If that evidence is not sufficiently challenged, an innocent person could be found guilty and sentenced to a term of imprisonment. That is why it is important to retain an experienced criminal defence lawyer, who is an accredited specialist in criminal law.
Ethical Duties of a Criminal Lawyer
The ethical duties of a criminal defence lawyer is governed by the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 ('Solicitor Conduct Rules').
The Solicitors' Conduct Rules set out a number of obligations that all lawyers must follow. The paramount duty of a criminal defence lawyer is to the administration of justice and the court (Rule 3 Solicitors Conduct Rules).
However, there are further duties that include:
- To act in the best interest of their clients in any matter which the lawyer represents the client.
- To be honest and courteous in all dealings, in the course of working as a lawyer.
- To deliver legal services competently, diligently and as promptly as reasonably possible.
- To avoid any compromise to his/her dignity and professional independence; and
- To comply with the Solicitors' conduct rules and the law.
Why Do We Need Criminal Defence Lawyers?
Criminal defence lawyers are required because everyone should be allowed to have legal representation of their choice. This is known as the right to a fair trial.
However, this does not mean that everyone has a right to a state-funded lawyer. Rather, if they can afford legal representation, then they are entitled to be represented by a lawyer of their choice.
This principle also has benefits for society at large. The state prosecuting a crime has essentially unlimited resources. For an accused person to be unrepresented would present a massive power imbalance and could lead to a miscarriage of justice.
Further, the court may be faced with an ambiguous area of the law. Having both parties adequately represented would allow different interpretations of the law to be put forward and important legal principles clarified.
There are also cases where an accused person may clearly appear to be guilty until a competent criminal defence lawyer analyses the evidence and shows that there is a reasonable possibility that their client is innocent.
Indeed, persons who make admissions can also be innocent. They may be acting under duress, panic, to protect someone else or they may try to please police so they can get out of the police station on bail. Numerous studies have shown that false confessions to police are a common occurrence.
More recently, analysis of case law has found that only 14% of child sexual abuse allegations in the family court were accepted as truthful. Approximately half of the child abuse allegations were found to be deliberately misleading by a parent.
Criminal defence lawyers are an important check against the increasing powers of the police and false claims against defendants. Overzealous policing and the inequities of the criminal justice system towards certain groups of people are well documented.
Good criminal lawyers will be able to protect the interests of their clients while steering those who are guilty towards appropriate programs to address any underlying causes of offending.
What is Criminal Law?
Criminal law is defined as a system of law concerned with the punishment of offenders. However, it also determines the guilt or innocence of alleged offenders.
There is a fundamental imbalance between the powers of police who have unlimited resources and the powers of an individual who is bound by his or her financial capacity. This is why it is for the prosecution to prove any charge beyond reasonable doubt.
To do away with this would allow persons to be found guilty based on little evidence or evidence that is ostensibly unreliable. There have been many instances where an alleged victim or witness has given evidence in court that is incorrect due to a mistake, or an ulterior motive of revenge.
Such evidence may be sufficient to raise a possibility that the accused person committed the alleged crime. If this was the standard of proof required to establish a person's guilt, then a potentially innocent person could be convicted of a criminal offence which has long-reaching consequences for their life.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.