The Defense Lawyer: Understanding What A Defense Counsel’s True Role Is
Part 1
I. Introduction: Duty of Protecting Rights
Probably one of America’s most misunderstood jobs is the criminal defense lawyer. Just be blunt, the real role isn’t boosting a lawyer’s ego with winning a case, make lots of money, having professional stature within the community, or getting their defendant off. Instead of it involving a higher moral calling – where a courageous and righteous individual stands against all of the government forces as well as all of the negative public opinion and then does this in the names of fairness and justice, or for history’s sake.
The American Bar Association’s Criminal Justice Standards of the Defense Function, states at Standard 4-1.2 (a) that it is provided by the Duties and Functions of Defense Counsel, that defense counsel is something that is essential for administrating criminal justice.
Well, of course, the ABA believes that. Without defense counsel, indeed it is not possible to achieve justice, and that is because there can be no justice administered if is left up solely to the government. Just as our minute men were relied on by our Founding Fathers for their protection during the times of the Revolutionary War, now our citizens are relying on defense attorneys to protect them from their very own government. The defense attorney exists to police the government!
II. The Misunderstood Job Of The Defense Lawyer
Most individuals, including prosecutors, judges, and even a lot of defense counsel, misunderstand the real role that the defense attorney plays within the criminal justice system. Most people mistakenly believe it is the job of the defense lawyer to get the defendant out of the charge. Although that may be a collateral consequence that comes with good representation, this is not the defense lawyer’s primary role. Instead, the primary goal of the defense lawyer is to ensure that all statutory, Federal and State Constitutional rights are protected. That duty is clearly not the only role of a defense attorney, but that of the judge and prosecutor as well.
III. The Primary Statutory Duty of the Prosecutor
Article 2.01 of the Texas Code of Criminal Procedure details what the prosecutor’s primary duty is, which is that the primary duty of prosecuting attorneys, which includes all special prosecutors, to see justice is done and not to convict.
IV. The Ethical Duty of the Defense Lawyer
The ABA Standard 4-1.2 (b), Duties and Functions of the Defense Counsel, states that the Defense counsel has the very difficult task of having to serve both as a court officer and as zealous and loyal advocate of clients. The primary duties that are owed to clients by the defense counsel are the administration of justice, and also as court officers, to serve as the advocate and counselor of the client with devotion and courage; to ensure that the legal and constitutional rights of the client are protected; and provide high-quality, effective representative with integrity.
V. The Constitutional Duty of the Defense Lawyer
Probably the most accurate and best description may be found in Justice White’s concurring opinion from the case of U.S. vs Wade, 388 U.S. 218, 256-258 (1967). He wrote in Wade:
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