Criminal lawyers represent people from all walks of life.
Unfortunately, movies and TV shows have portrayed criminal lawyers in a bad light, prompting members of the public asking the question criminal lawyers get asked too often, “but how can you defend a criminal?”, or “how can you defend a guilty person?”.
Too often we hear about a media coverage of either someone charged with a serious alleged offence or how a criminal lawyer has got his/her client off a charge due to a “technicality” or “loop hole” in the law.
The job of a criminal lawyer is both difficult and rewarding.
Their clients range from taxi drivers, struggling single parents, troubled children, to corporations, directors, bankers, including the rich and famous.
A criminal lawyers job is not just to defend an accused person. It goes far beyond that.
A criminal lawyer’s role is generally governed by a set of values and rules, which have been reflected in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.
The Solicitors’ conduct rules provide a foundation on how lawyers should ethically conduct themselves as practicing lawyers in Australia. This includes:
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.
A lawyer also has a paramount duty to the administration of justice and the court (rule 3 Solicitors Conduct Rules).
Our criminal justice system is built on the principle that we rather have a guilty person be let free than an innocent person jailed.
To reflect this principle in practice, for an accused person to be found guilty, the prosecution is required to prove, with sufficient evidence, to the court that the accused person committed the offence “beyond reasonable doubt”.
Up until such time, the accused person is presumed innocent.
In line with the same principle, the accused person is given the benefit of the doubt.
This means, if the extent of the evidence shows that an accused person ‘possibly’ committed the crime, the court would be required to return a verdict of “not guilty”, resulting in dismissal of the charge(s) and acquittal of the accused.
The defence counsel have several duties including:
Duty of loyalty to the client
Duty of confidentiality to the client
Duty of honesty
Duties to the Court
These duties overlap and may occasionally conflict.
Counsel’s purpose is to “provide professional assistance and advice” which involves allowing him to “exercise his professional skill and judgment in the conduct of the case”. He is responsible to conduct the defence and “exercise independent judgment as to what is in the client’s best interests” and decide whether a particular course of action is within counsel’s “duties as an officer of the court”.
Counsel who violates some ethical standard of the profession does not necessarily equate to a breach of the right to effective counsel. The two must be treated separately. Concerns only for counsel performance, without a prejudice having occurred, can only be addressed by the profession’s self-governing body.
All counsel are required to treat witnesses, counsel and the court with “fairness, courtesy and respect”.
Counsel who has been suspended from the bar while conducting trial will not necessarily require a new trial. Overturning the verdict requires that the counsel “ability to effectively represent the [accused] was impaired as a result of that disqualification.”
Counsel who is intoxicated during trial will result in an overturning of verdict regardless of the impact on the reliability on verdict.
Counsel for the defence assists persons who have been charged or accused in a criminal case. In most cases, the accused is entitled to his defence being paid at the public expense.
The person charged or accused can choose their own defence counsel. If he has no one in mind, the court will appoint a defence counsel, usually a lawyer. But the accused can also choose defence counsel who is not a lawyer. In such instances, the court has to approve their choice.
The defence counsel’s role is to protect their client’s interests in the case. He will counsel the client, and has a duty of confidentiality regarding everything he learns from the client. If the client confesses to the defence counsel or otherwise admits his guilt, it can be difficult for the defence counsel to represent his client’s interests. The defence counsel can advise his client to confess or to switch counsel.
It is the duty of every defence lawyer to try to ensure that his or her client receives a fair trial and that the other fundamental constitutional rights of his or her client are not violated.
The constitution also provides that every person charged with a criminal offence has a constitutional right to be represented at his or her own expense by a legal practitioner of his or her own choice. The denial of this right is a breach of a fundamental right [s 18(3)(b)] and a violation of this right is a ground for appeal. For example, in the case of Mushayandebvu 1992 (2) ZLR 62 (S) a woman had engaged a lawyer to defend her but he was unavailable on the day of the trial due to previous commitments. The prosecutor knew that she had engaged a lawyer who was unavailable for the trial but did not inform the court about this. The woman, who was unsophisticated, did not herself tell the court about this. She was convicted. The appeal court set aside the conviction on various grounds, one of which was that the woman’s constitutional right to be represented by a lawyer at her own expense had been breached, as the prosecutor should have told the court that she had engaged a lawyer who was unavailable on the day of the trial; it was unfair to expect an unsophisticated accused to realise that she could bring to the court’s attention this matter.
Source 2: http://criminalnotebook.ca/index.php/Role_of_the_Defence_Counsel
Source 3: https://www.domstol.no/en/the-criminal-court-proceedings/who-is-involved/defence-counsel/
Source 4: https://zimlii.org/content/section-1-%E2%80%93-defence-lawyer%E2%80%99s-role-and-responsibilities