If you or a loved one are facing a criminal charge, putting a skilled Attorney on your side can make a valuable difference in the outcome.
Don’t believe it? Just ask OJ, or Michael Jackson what they think. If not for the quality work of their defense Attorneys at trial, both would be sitting in a cold prison cell today, instead of enjoying sunshine.
But what does an Attorney actually do? That is a tough question. In my 10 years as a defense Attorney, I am often asked by potential clients: “What are you going to do for me?” Here, we try to answer that question.
What is it about a defense Attorney that makes their help valuable?
The Attorney’s training and experience that makes the criminal case process easier for the client, and promotes the clients best interests toward. A defense Attorney’s focus should be on getting the best possible result for the client under the circumstances.
An Attorney prepares a case, evidence and witnesses for trial, makes court appearances, analyzes evidence, negotiates with the prosecutor, makes recommendations to the client, and if necessary, tries to win a trial for the client.
|All criminal cases start with a routine court date called an Arraignment, and then progress toward a trial. The trial is where the prosecutor must prove the defendant has broken a law. |
But most cases never make it to trial, because they are resolved along the way by agreement of the defendant, prosecutor and judge. Such agreements to end a criminal case are called “Plea Agreements”.
The priority of a defense Attorney is to prepare a case and a client for the trial, while at the same time, trying to avoid a trial and resolve the case with a Plea Agreement favorable to the client.
However, it is the unseen details of this process that makes an Attorneys help truly valuable to the client.
Criminal Defense Attorneys Apply Special Legal Training and Courtroom Experience to Solve CLient Problems.
Attorneys are not just noisy nerds with good legal jobs. They have completed a long legal education that non-attorneys do not have.
When hired by a client to handle a criminal case, an Attorney applies this legal training to protect and promote their clients best interests. But this legal training and experience does not come easy.
Before becoming a licensed Attorney, a person must complete a 4 year university degree, and then attend and graduate from an accredited law school. After graduating from law school, a person is awarded a graduate degree in the discipline of law called a “Juris Doctorate”. Generally, this takes at least 7 years of post high school academic training.Graduating from law school is only the first step to becoming an Attorney. Law school graduates must also pass a grueling state bar exam to prove they have the required knowledge about the laws of their state. In California, the bar exam is a 3 day marathon test.
After passing a bar exam, a candidate to be an Attorney must pass a detailed FBI background check and pass a national Ethics and Professional Responsibility exam. Once all of these steps are completed, the candidate then becomes a sworn officer of the court, and then is finally designated an Attorney at Law and is licensed to give legal advice and make court appearances for clients.
|It is this training that teaches an Attorney where to look up the law, how to read it, how to use it to promote a clients interests, and what all those useless Latin words mean. But perhaps more importantly, it is this training that teaches an Attorney how to be persuasive and get judges, and juries to rule in their favor.|| |
Criminal Defense Attorneys Make Court Appearances with, and sometimes in place of, Their Clients
One of the most important aspects of a defense Attorney’s work is making pre-trial court appearances. After all, it is in court where the most visible work of an Attorney takes place. And it is in court where defendants without an attorney can make mistakes that can affect the rest of their lives.
In pre-trial court appearances, Attorneys inform the court (judge) as to what they want to do with a case, such as schedule a trial or other hearings to challenge evidence that may not be admissible, or select jury instructions, etc.
In many misdemeanor cases, an Attorney can appear in court for a defendant, and the defendant does not have to go to most routine pre-trial court appearances. Avoiding court is of great benefit to the misdemeanor client with a defense Attorney, because the client can go on with their life without the stress and embarrassment of going to court.
This benefit alone can make an Attorneys help worth the cost, especially if a defendant has a job they cannot leave.
In felony cases, the client must appear with the Attorney, but it is the Attorney who speaks to the court and prosecutor for the client. To the client, this provides the benefit of reduced stress, and the benefit of having the attorneys courtroom experience work to protect their interests.
In essence, a defendant with an attorney handling the court appearances need not wonder if they are doing the right thing, and can be assured that they will have help in understanding what is happening.
Like many criminal defense Attorneys, my first job was with a county public defenders office. I was assigned to a courtroom where I spent most of the day making court appearances on dozens of cases everyday. Reading police report after police report, and seeing hundreds of cases pan out, I learned how to analyze a case, predict likely outcomes on common fact patterns and how to challenge inadmissible evidence. It is this kind of repetitive case work inside the courtroom that trains an Attorney to review cases effectively and make decisions on what needs to be done with a clients case in the courtroom.
A defendant handling a case on their own does not have this experience, and would be at a great disadvantage in a criminal prosecution.
Often, important decisions such as whether to plead guilty or not guilty are made during the first court appearance, after the Attorney makes an assessment of the case. And it is during pre trial court appearances where negotiations with the prosecutor and the judge take place.
Criminal Defense Attorneys Can Help Avoid Costly Mistakes in Court.
A common mistake I see defendants who make their court appearances alone is pleading guilty too early, without any plea agreement negotiations. A classic example is a defendant who pleads guilty to a DUI case on the first court appearance, and ends up convicted of 2 crimes instead of one.
This can happen because DUI cases generally start out as 2 criminal charges that overlap somewhat: Driving with a blood alcohol content of .08% or above, and then separately, driving under the influence of alcohol. (Vehicle Code section 23152a and 23152b).
Prosecutors use these 2 charges as a safety net to ensure a conviction if the defendant is able to show some doubt as to the accuracy of the testing machine or procedure. Basically, if a defendant has a low blood alcohol content, a prosecutor can still get a conviction by showing “impairment” instead.
Typically, a defense Attorney can get one of these 2 overlapping misdemeanor crimes dismissed by the prosecutor in exchange for a guilty plea to the other. This is an example of a classic plea agreement that happens every day in just about every criminal court. But a defendant without an attorney who pleads guilty without trying to make this arrangement, can be convicted of both crimes, and thereby gets screwed.
When this mistake happens, a defendants background will show 2 criminal DUI convictions instead of one. It is a classic mistake with long term consequences that can be avoided with the help of an attorney who knows what to ask for- even if the client is clearly guilty.
Because experienced Attorneys have seen hundreds of cases and fact patterns, they are better equipped to make decisions in court than a person who is going to court alone for the first time. A defendant alone going to court for the first time would have no clue about common mistakes such as this expample.
Criminal Defense Attorneys Analyze the Government’s Evidence to Determine What is Admissible, and What is Not.
All criminal cases hinge on evidence. If there is enough evidence to prove guilt beyond a reasonable doubt, the defendant gets convicted.
Frequently, prosecutors will seek to use evidence that may not be admissible in trial, or may not be reliable. Defense Attorneys use their training and experience to analyze the evidence against their client to see if it is truly admissible.
If there are rules of evidence or a law that prevents a piece of evidence from being used, a defense Attorney can make a formal written request to the judge, also known as a “Motion” to “exclude”, or throw out, that evidence.
Typical evidence used in criminal cases includes police reports, witness statements, and sometimes surveillance video. Prosecutors may also seek to introduce and use records from a prior criminal conviction, also known as “Priors”.
Reasons why evidence or priors may not be admissible include: the evidence was the product of an illegal search; the evidence is inadmissible character evidence, and in some cases, the evidence is unreliable for some reason. Prior convictions may not be admissible if they are unrelated, juvenile records, or some rule or law bars their use.
In order to determine what evidence is admissible against a client, an attorney must know, and at times research, the rules of the evidence code as it applies to the evidence the prosecutor wants to use. When a defense attorney does this work, the goal is to figure out if there is a rule of evidence that will prevent a bad piece of evidence from being used against the client.
A defendant going to court alone cannot do this task as effectively as an experienced attorney – and the prosecutor for sure is not going to help. The job of a prosecutors is to put defendants in jail, not to help them. Unchecked, an ambitious prosecutor can run over a solo defendant like an out of control tractor falling off a cliff. It happens every weekday in criminal courts.
Criminal Defense Attorneys Challenge Inadmissible Prosecution Evidence
Here is a shocker for some people: Sometimes prosecutors seek to use evidence that should be excluded as a matter of law. Some unprepared or unsuspecting criminal defendants are in danger of getting shafted.
If a Criminal Defense Attorney has reason to believe that certain evidence is not admissible, the attorney has several ways to challenge it. For example, the attorney may draft and file a motion to suppress illegally obtained evidence, or a motion to exclude character evidence that is not relevant to the issues of a case.
A skilled Defense Attorney will also negotiate with the prosecution to try to arrange agreement on what evidence can be used at trial. And often, an attorney can use a challenge to a piece of evidence as leverage for negotiating a plea agreement.
Criminal Defense Attorneys Determine if There is a Legal Defense to the Charges, and Advises The Client on that Basis.
Not all people charged with crimes are guilty. Sometimes there is a defense to the charges that the prosecutor ignores, or does not believe. A defense attorney’s job is to review the evidence, research the required elements of a crime or violation, and determine if there defendants has a defense.
Often, a client will think or believe they have a defense, and that a case should be dismissed. But the client may not truly understand what the law requires and may get it wrong. Clients tend to confuse “excuses” with a true defense, and an excuse is basically useless in court.
The Attorney must sort through the excuses, focus on the evidence and the law, then determine if the prosecution can prove all of the required elements of a charge. If it appears the prosecution cannot establish all of the required elements, the Attorney will advise the client that there may be a defense, and that a trial might be a good idea.
If there is a defense, that does not mean that the case automatically ends. Generally, the attorney must convince the prosecutor they are wrong about the guilt of the client. If the prosecutor refuses to agree that there is a defense, and refuses to dismiss a case with a defense, a trial is required to present the defense to a court or jury hearing the case.
Defendants handling their cases without an attorney have the disadvantage of not knowing what defenses will work, and what excuses are useless. Without this knowledge, a solo defendant cannot make well informed decisions.
Criminal Defense Attorneys Negotiate Please Agreements with Prosecutors Prior to a Trial.
One of the most valuable skills of a defense attorney is the ability to effectively negotiate with a judge or prosecutor to get a case resolved without a trial.
This is something that a lay person cannot do. In fact, most prosecutors will completely refuse to discuss a case with a defendant without an Attorney. They are not required to talk to the defendant. However, court rules require the prosecutor to discuss the case with a defense attorney before trial, in a process called “Meet & Confer”.
A defense attorney has leverage for these negotiations in the fact that the attorney can demand a trial on a case, which requires a great deal of work from the prosecutor, and the use of court resources. Generally, the court and prosecutor will seek to avoid the waste of these resources if there is a way to resolve a case prior to trial.
If the defense attorney has some evidence that may lead to a possible defense at trial if the jury believes it, the attorney has the additional leverage of being able to tell the prosecutor that they may lose unless there is a concession prior to trial. Prosecutors do not like to lose a trial, and in a weak case, may seek a compromise to resolve a case with a trial.
Criminal Defense Attorneys Guide Their Clients Through the Criminal Justice Process Which Can Be Very Confusing.
Reducing a clients stress and confusion is also a main goal of any good defense Attorney. An Attorney can prepare the client for what is going to happen in advance. For example, an attorney can tell the client exactly what will happen through each court date, and prepare the client for any questions from the court, and estimate what a sentence may be.
Criminal Defense Attorneys Draft the Client’s Legal Paperwork, Such as Motions and Petitions.
Just about all criminal cases require some paperwork. There are waiver forms, motions, requested jury instructions, and “discovery”, or requests for the production of evidence that must be drafted. An attorney knows which forms need to be used, and how to write the papers to get the sought after effect.
A classic example would be a motion to exclude a piece of evidence, also called a Motion to Suppress, or “Exclude”. These motions must be prepared in a certain way, with citations to specific laws supporting the exclusion of the evidence. A defendant trying to do this on their own for the first time would not have a good chance of success, mainly because they would not know how to do it in a correct and persuasive way.
Criminal Defense Attorneys Seek to Keep Their Clients Focused and Realistic About What is Happening.
Many people charged with a crime are in denial about what is happening. An attorney must be able to communicate the reality of the situation to the client. Sometimes a client will have trouble focusing on what is important in dealing with a case. In these situations, the attorney needs to get the client to focus his or her attention in the right place.
Criminal Defense Attorneys Advise Clients on the Likely Outcome of a Jury Trial if a Criminal Case Were to Go That Far.
The Attorney should tell the client, after analyzing the evidence, whether or not the client is likely to win a trial. Of course, the attorney cannot perfectly predict how a jury of 12 people will view the evidence and make a decision, but an experienced attorney should have a sense as to whether there is enough admissible evidence for a conviction.
Sometimes, the plea agreement offer from the prosecutor will be a better outcome than if the defendant were to lose a trial with a weak defense. Judges tend to punish defendants who lose a trial harsher, probably because they feel the defendant wasted the courts time and resources. It shouldn’t happen, but it does.
In such a situation, it is the attorneys job to tell the client that a loss at trial may be worse than the “plea offer”, and help the client decide if the risk of losing at trial is worth it.
Once a Defense Attorney has been able to analyze the evidence, research the law, and negotiate the best possible offer from the prosecutor, the Attorney is in a good position to make recommendations to a client. Generally, in a criminal case, this means the attorney will recommend a guilty plea, acceptance of a plea agreement, or if there is a legitimate defense, a trial.
Although the Attorney makes his or her recommendations based upon training and experience, ultimately, it is the clients sole decision on what to do. If the client decides to do something different than what an attorney recommends, it is the attorneys job to follow through on what the client wants. Ultimately, it is the client who must accept the consequences of what happens, so the attorney just makes recommendations, then asks the client what they want to do.
At times, an attorney will recommend a guilty plea, but the client does not trust or believe the Attorneys assessment of the case, and will want a trial despite the recommendation. In such a s case, the attorney is obligated to go through the trial, and do the best he or she can to get a not guilty verdict.
Criminal Defense Attorneys Prepare for and Conduct a Jury Trial for the Client if That is What They Want After Being Fully Advised of the Case and Defenses.
In its basic form, a trial means a procedure where the prosecution and the defense present their evidence, and witnesses. The judge instructs the jury on the law, and the prosecutor and defense Attorney then make final arguments to try to persuade the jury to vote one way or another.
A typical DUI trial will take 3-4 days, and involve many witnesses, including forensic toxicologists, police officers, and bystanders. A great deal of work is required to arrange and prepare for the witness testimony so that a clients side of story is effectively told.
Much of a defense Attorneys leverage for negotiating a favorable plea agreement comes from the implicit threat that the defense attorney can force a trial, which requires a great deal of work from everyone involved. The courts and the prosecutors will make offers to try to avoid this work and expenditure of resource.
The Attorneys training and experience allows him or her to know what to say and present to a jury to give their the best chance of success. A criminal trial is a complicated event. It should never be done by a defendant on their own, because once a defendant gets to the trial stage, makes can have gianormous consequences.
So that is it. A defense Attorneys job in a nutshell.
An effective defense Attorney makes the criminal process easier, and understandable for the client. They try to get the client off on a technicality, and they try to cut a deal with the judge.
But that’s not all. A good defense Attorney makes court appearances for the client, reduces stress, analyzes the evidence, negotiates plea agreements, determines if there is a defense, makes recommendations to the client, and if the client wants a trial, the Attorney does his or her best to convince a jury acquit the client.
And the whole time, the Attorney promotes the best interests of the client.
As for Michael Jackson and OJ, their defense Attorneys obviously were effective at all of these tasks. And if asked, I’d bet both OJ and Michael would agree that the Attorneys were well worth the millions they were paid.
When your life or future is on the line pulled tight by a criminal case, an Attorneys help is well worth the cost.
This is why the old saying goes: “a person representing himself in a criminal case, has a fool for a client.”
Related Blog Article: What is a Public Defender?
Related Primary Source info:
National Standards for Indigent Defense.
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