lawyer
A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solic ...
(mostly
barrister
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
s) specializing in the
defense
Defense or defence may refer to:
Tactical, martial, and political acts or groups
* Defense (military), forces primarily intended for warfare
* Civil defense, the organizing of civilians to deal with emergencies or enemy attacks
* Defense industr ...
of individuals and companies charged with
criminal activity
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
. Some criminal defense lawyers are privately retained, while others are employed by the various jurisdictions with criminal courts for appointment to represent
indigent
Poverty is the state of having few material possessions or little
public defender
A public defender is a lawyer appointed to represent people who otherwise cannot reasonably afford to hire a lawyer to defend themselves in a trial. Several countries provide people with public defenders, including the UK, Hungary and Singapore, ...
s. The terminology is imprecise because each jurisdiction may have different practices with various levels of input from state and federal law or consent decrees. Some jurisdictions use a rotating system of appointments, with judges appointing a private practice attorney or firm for each case.
United States
In the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, criminal defense lawyers deal with the issues surrounding an
arrest
An arrest is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be questi ...
, a
criminal investigation
Criminal investigation is an applied science that involves the study of facts that are then used to inform criminal trials. A complete criminal investigation can include searching, interviews, interrogations, evidence collection and preservatio ...
,
criminal charge
A criminal charge is a formal accusation made by a governmental authority (usually a public prosecutor or the police) asserting that somebody has committed a crime. A charging document, which contains one or more criminal charges or counts, can ...
s,
sentencing
In law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences for mult ...
,
appeal
In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
s, and post-trial issues. Often an attorney will specialize in a niche within criminal defense, such as drug defense or
DUI
Driving under the influence (DUI)—also called driving while impaired, impaired driving, driving while intoxicated (DWI), drunk driving, operating while intoxicated (OWI), operating under the influence (OUI), operating vehicle under the infl ...
defense. They could work for the local, state, or federal government or they could work for private law firms. The defense lawyers could also have their own practice and handle multiple criminal cases.
An
arrest
An arrest is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime. After being taken into custody, the person can be questi ...
simply means a
police officer
A police officer (also called a policeman and, less commonly, a policewoman) is a warranted law employee of a police force. In most countries, "police officer" is a generic term not specifying a particular rank. In some, the use of the ...
,
federal agent
''Federal Agent'' is a 1936 American crime film directed by Sam Newfield and written by Barry Barringer. The film stars William Boyd, Irene Ware, Don Alvarado, Lenita Lane, George Cooper and Charles A. Browne. The film was released on April 1 ...
, or
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
believes
probable cause
In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or f ...
exists that a person committed a
crime
In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definit ...
. Since an arrest is usually made by
law enforcement
Law enforcement is the activity of some members of government who act in an organized manner to enforce the law by discovering, deterring, rehabilitating, or punishing people who violate the rules and norms governing that society. The term en ...
, the arrest often is for a
criminal charge
A criminal charge is a formal accusation made by a governmental authority (usually a public prosecutor or the police) asserting that somebody has committed a crime. A charging document, which contains one or more criminal charges or counts, can ...
that has not been levied or verified by an attorney or judge. Criminal defense lawyers also deal with the substantive issues of the crimes with which their clients are charged. Criminal defense lawyers may also help clients before charges have been filed by a
prosecuting attorney
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal tria ...
: this is done when someone believes he or she is being investigated.
The accused may hire a criminal defense lawyer to help with counsel and representation dealing with police or other investigators, perform his or her own investigation, and at times present exculpatory evidence that negates potential charges by the prosecutor. Criminal defense lawyers in the United States who are employed by governmental entities such as
counties
A county is a geographic region of a country used for administrative or other purposesChambers Dictionary, L. Brookes (ed.), 2005, Chambers Harrap Publishers Ltd, Edinburgh in certain modern nations. The term is derived from the Old French ...
,
state governments
A state government is the government that controls a subdivision of a country in a federal form of government, which shares political power with the federal or national government. A state government may have some level of political autonomy, or ...
, and the federal government are often referred to as
public defender
A public defender is a lawyer appointed to represent people who otherwise cannot reasonably afford to hire a lawyer to defend themselves in a trial. Several countries provide people with public defenders, including the UK, Hungary and Singapore, ...
s or court-appointed attorneys.
A considerable aspect of this work requires the US criminal defense lawyer to have a clear understanding of the
United States Constitution
The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...
. Specifically, the Fourth Amendment against unlawful searches and seizures. The Fifth prescribes a defendant's
right to remain silent
The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the worl ...
. The Sixth relates to a defendant's rights at trial. It guarantees a defendant the opportunity to confront and cross-examine witnesses, in addition to the right to be represented by counsel. The Sixth Amendment also allows a defendant to know the nature of the accusation against them. All of the Amendments to the United States Constitution are guaranteed to the criminal accused against the states via the Fourteenth Amendment. Thus, a criminal defense lawyer must understand each of these rights. Initial work on any criminal case involves review of the charges and the claimed facts, and analysis of constitutional violations, the ''
prima facie
''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...
'' burden of the prosecution, defenses, and
affirmative defense
An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's o ...
s; as well as potential sentence and sentencing issues. Early stages of a criminal case may involve a
grand jury
A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a pe ...
or
preliminary hearing
Within some criminal justice, criminal justice systems, a preliminary hearing, preliminary examination, preliminary inquiry, evidentiary hearing or probable cause hearing is a proceeding, after a criminal complaint has been filed by the prosecuto ...
to determine if there exists probable cause for the case to continue. A violation of the Fourth or Fifth Amendment, or other illegally obtained evidence could result in evidence being inadmissible at trial. Accordingly, a criminal defense lawyer often spends a considerable amount of time reviewing all documentation to determine if the case can be won on constitutional grounds due to illegal conduct by the government.
If there are no constitutional violations, much of the work of a criminal defense attorney then turns to trial preparation. Any proposed
settlement
Settlement may refer to:
*Human settlement, a community where people live
*Settlement (structural), the distortion or disruption of parts of a building
* Closing (real estate), the final step in executing a real estate transaction
*Settlement (fin ...
agreement must be compared to the best judgment about the outcome after trial. A criminal defense lawyer will usually discuss potential
plea bargain
A plea bargain (also plea agreement or plea deal) is an agreement in criminal law proceedings, whereby the prosecutor provides a concession to the defendant in exchange for a plea of guilt or '' nolo contendere.'' This may mean that the defendan ...
s with the prosecuting attorney, as an alternative to exercising the defendant's trial right and other rights. Plea agreements, when made, can be characterized as either charge agreements (often involving a less serious charge), sentencing agreements (involving a lesser sentence), or both.
Criminal defense lawyers are typically defending people with misdemeanor or felony charges. A
misdemeanor
A misdemeanor (American English, spelled misdemeanour elsewhere) is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than adm ...
generally refers to criminal activity that is punishable by one year or less in the local jail. A
felony
A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...
typically refers to criminal activity that is punishable by more than one year in the prison system. Many states have "wobblers", which refers to criminal activity that is charged as a felony, but has a possibility of being reduced to a misdemeanor. In matters involving a wobbler, many times a reputable lawyer can either have the felony reduced to a misdemeanor or in the alternative have the felony appear to be a misdemeanor so that the felony can be reduced to a misdemeanor at a later date, which may be good strategy since the typical felony cannot be
expunged
In the common law legal system, an expungement proceeding is a type of lawsuit in which a first time offender of a prior criminal conviction seeks that the records of that earlier process be sealed or destroyed, making the records nonexistent or u ...
.
The initial process of becoming a criminal defense attorney is similar to becoming a lawyer practicing in any other legal practice area. To become a criminal defense lawyer, a person will typically complete their
undergraduate degree
An undergraduate degree (also called first degree or simply degree) is a colloquial term for an academic degree earned by a person who has completed undergraduate courses. In the United States, it is usually offered at an institution of higher e ...
, and then attend and graduate from a
law school
A law school (also known as a law centre or college of law) is an institution specializing in legal education, usually involved as part of a process for becoming a lawyer within a given jurisdiction.
Law degrees Argentina
In Argentina, ...
. After graduating law school and passing the
bar examination
A bar examination is an examination administered by the bar association of a jurisdiction that a lawyer must pass in order to be admitted to the bar of that jurisdiction.
Australia
Administering bar exams is the responsibility of the bar associa ...
for that particular state or jurisdiction, the new lawyer will be sworn in as a member of that bar and can then begin practicing in the field of criminal law. However, many reputable criminal defense attorneys spend some time after being admitted to the bar working under the mentor-ship of an experienced attorney, often in a prosecutors office or a public defenders office.