Defense Counsel Systems

In the adversary system that has evolved from the English “fighting” trial-by-ordeal of the tenth century and is dominant in the United States and other common law countries, the main task of the defense attorney is the protection of the criminal defendant's legal rights. In this task, a defense attorney has several advantages over the prosecution:

• 1.
  The presumption of the defendant's innocence puts the burden of proof on the prosecutor;
• 2.
  thus no explanation of the crime other than the one based on the criminal defendant's guilt should be reasonable for there to be a conviction;
• 3.
  the prosecution must comply with the defense's formal requests for a summary of the evidence that the state will use against the accused; and
• 4.
  the defense attorney goes last in presenting his or her case at trial, thereby making it easier to create doubt in the state's case by attacking its credibility.

The inquisitorial system favored by civil and socialist law countries was developed from the Spanish Inquisition's “search for truth” and is a cooperative continuing investigation orchestrated by an active judge, with the criminal defendant presumed guilty; thus, the task of the defense attorney is to mitigate that guilt.

A criminal defense attorney can be defined as “a person who either specializes in or handles a substantial number of criminal cases” (Holton and Lamar 1991: 123). In the United States, many lawyers are general practitioners who handle whatever criminal or civil cases come their way. Some lawyers take a criminal case only if a special client asks them to or if they feel it is their ethical obligation to do so. Still other lawyers specialize in criminal law and believe that lawyers who take only an occasional criminal case are not really criminal defense attorneys. The canons of legal ethics in the United States forbid taking a criminal case on a contingency basis as is done with civil cases; thus, there are a variety of fee arrangements made with criminal defendants. Free legal aid for criminal defendants who cannot afford counsel (i.e., indigents) is a matter of due process in most countries, including the United States, regardless of whether they follow an adversary or an inquisitorial system.

More than 80 percent of the defendants in felony cases in the United States are indigent and therefore are represented by court-appointed attorneys, whose fees are paid by the government. American indigent defendants usually obtain legal services by one of three systems. The court-assigned counsel system is the primary system in most jurisdictions in the United States, wherein the defense attorney is usually selected, either randomly or by the trial judge, from a roster of all the practicing attorneys within the court's jurisdiction and is paid at a rate set by that jurisdiction's government. The public defender program differs from the court-assigned counsel system in that the former relies on a full-time salaried staff, including defense attorneys, investigators, and office personnel. Public defender programs serve more indigent defendants than any other system because they are most often located in highly populated urban jurisdictions. The third type of indigent defense system in use and growing in the United States is the contract attorney program, wherein local governments contract with local individual attorneys, multipartner law firms, or local bar associations to provide legal services to indigent defendants.

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