Chapter 9 - The Defense and Constraint on State Power

Abstract

The advantage of being a defense attorney is a degree of freedom from the state. Disadvantages include the defense attorney’s role as an entrepreneur; the necessity to bring in clients and money; and the task of maintaining a positive image. The defense attorney must fulfill several obligations to the client. These include advising the defendant of his or her legal rights in the criminal prosecution; defending the client in court; examining the evidence against the client and contesting its credibility; ensuring the police follow due process; make proper and timely motions and objections during the trial; presenting evidence, alibis, and witnesses to testify on the client’s behalf; advising the client about the advantages and disadvantages of plea bargain offers; bargaining with the prosecutor for reduced charges or sentences; preparing the case for appeal if the defendant is found guilty. The defense attorney helps ensure that defendants are treated in a just and fair manner, in part by objecting to procedures and raising motions to dismiss cases. The defense attorney looks out for the rights of the accused in the adversarial court setting. The defense attorney must ensure that clients receive constitutional and statutory protections by making sure the prosecution follows the procedural rules in presenting the case. These procedural rules are derived from the Bill of Rights and from federal or state legislatures. The most basic responsibility of the defense attorney is to challenge or rebut the prosecution’s case. The prosecution must prove beyond a reasonable doubt that the defendant is guilty of the offenses charged. The defense attorney establishes that the prosecution has not proven guilt beyond a reasonable doubt. Defense attorneys may be privately retained attorneys or public defenders. The four primary indigent defense systems are the public defender’s office, contract systems, assigned counsel programs, and pro bono publico . The defense attorney may influence the defendant’s outcome at three points in the court process, including discovery, plea negotiations, and during voir dire . The defense attorney’s argument against the prosecutor’s case typically takes one of two types: The first asserts that the defendant did not commit the offense, and the second admits that the defendant committed the offense, but that extenuating circumstances absolve the client from all or much of the blame.