Clearing Up a Misconception

Our Bill of Rights

Our Constitution

I have heard it almost a dozen times now:

"How does John defend criminals?"

or

"Say a person walks into Johns office who has committed a crime, and you KNOW they are obviously guilty. What does John DO?"

or

"Is it hard for John to defend criminals?!"

The first couple of times I was happy to explain John's job to someone who I interpreted to be innocently uninformed. But as time goes by, I have to bluntly say that I am seriously shocked at how many individuals in our society who have absolutely no clue how our legal system works, the details of our constitution, or the rights Americans are entitled to pertaining to criminal law. I'm also shocked as to how ANYONE could not see these aspects of our legal system as something to be respected, valued, and necessary.

Let me first point out the sixth amendment to our constitution which reads:

"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."

I have been left with the impression that the majority of people in these United States think that if a person is "obviously guilty" of a crime, they should be subjected to whatever the law can throw at them, being left helpless, and thrown in jail. Or that the opposite of what the presumption of innocence states, they should be found guilty until proven innocent. What kind of backwards idea is that?? Lets take a closer look at the presumption of innocence shall we?

The presumption of innocence, sometimes referred by the Latin as Ei incumbit probatio qui dicit, non qui negat (the principle that one is considered innocent until proven guilty) is a legal right of the accused recognised in many nations. The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the trier of fact, who is restrained and ordered by law to consider only actual evidence and testimony that is legally admissible, and in most cases lawfully obtained, that the accused is guilty beyond a reasonable doubt. In case of remaining doubts, the accused is to be acquitted.

Now, we have established that it's pretty unconstitutional for a defendant to not have the fundamental right of presumption of innocence, meaning you can't just throw any old person in jail for the rest of their life with nothing to base it on. Now what? They are entitled to defend themselves through due process.

Going back to the sixth amendment, everyone is entitled to the assistance of counsel. To me, the sixth amendment is pretty straight forward. I believe in the constitution the way it was written (I better believe in it, I have SEEN it with my own eyes!), and I have no qualms against providing our citizens with this fundamental right. I believe in this right our constitution has provided for us just as I believe in the right to bear arms and the freedom of religion. But for those who still don't get it, THIS breaks it down very well:

"A criminal defendant's right to an attorney is found in the Sixth Amendment to the U.S. Constitution, which requires the "assistance of counsel" for the accused "in all criminal prosecutions." This means that a defendant has a constitutional right to be represented by an attorney during trial. It also means that if the defendant cannot afford an attorney, in almost all instances the government will appoint one to handle the case, at no cost to the defendant.

Keep in mind that, while the right to counsel is discussed here in connection with a criminal trial, a suspect has the right to a lawyer at almost every important phase of the criminal process, typically from arrest through the first appeal after conviction.

How Does an Attorney Assist a Defendant in a Criminal Case?

The defense attorney's role is of paramount importance in almost every criminal case. While specific duties of an attorney vary depending on the nature of the charges and the case, key responsibilities of any criminal defense lawyer include:

• Advising the defendant of his or her rights and explaining what to expect at different stages of the criminal process;

• Ensuring that the defendant's constitutional rights are not violated through law enforcement conduct, or in court proceedings;

• Negotiating a plea bargain with the government, on the defendant's behalf;

• From arraignment to sentencing: investigating facts and evidence, cross-examining government witnesses, objecting to improper questions and evidence, and presenting any legal defenses.

To What Standards is a Criminal Defense Attorney Held?

Courts have interpreted the Sixth Amendment right to counsel as guaranteeing the "effective assistance of counsel" to criminal defendants. It doesn't matter whether the attorney is hired by the defendant or appointed by the government. However, questionable strategic choices made by an attorney (and even serious lawyer errors, in some instances) do not usually cause a conviction to be thrown out, unless it is clear that the attorney's incompetence affected the outcome of the case."

Look back at those bullet points for me and while reading them ask yourself these questions: Presuming that a defendant has committed a crime, at any point is the attorney trying to make it seem as if the defendant did not commit the crime? Is the attorney lying? Is the attorney doing anything other than assisting the defendant through the legal process, helping them understand the complexities of the system, and ensuring that the defendant's rights are not violated?

The answer to those questions should be NO.

I understand that for some, comprehending what a criminal defense attorney does is difficult. I get that most people (typically conservatives- what? I'm just being honest here) are under the impression that attorneys are liars, who spend all day trying to wiggle criminals out of the legal system. Some people may even think that attorneys are crooked, or have no morals. My goal with this note is not to insult anyone or make them feel bad. My hopes are that this little note was an educational piece for these individuals. I hope that people can read this with a clearer understanding of our constitution and know that those accused of a crime are innocent until proven guilty and have the fundamental right to counsel to guide them completely through the legal process.

If after reading this information with an open mind, you still feel that what criminal defense attorneys do as a profession is not respectful- that's fine. Just keep it to yourself. But on a more personal note, I know MANY people from first hand experience who were not to prideful to retain an attorney when they needed one. And you know what? It was a GOOD thing they did. If you ever find yourself in a situation where you might need an attorney, I am willing to put money down that you would hire one. And if you don't, that's a pretty dumb thing to do. And on an even MORE personal note, having a husband with such extensive legal knowledge has protected us and our rights more times than I can count.