Part 2: What do criminal lawyers actually do?

In my last article I discussed the basics of what a criminal lawyer’s role is in the criminal justice system. I discussed topics such as what their purpose is, what ‘rules’ they have to abide by, how they differ from other types of lawyers and how a person actually becomes a criminal lawyer.
In this article I will discuss the difference between a prosecutor and a criminal lawyer, what a criminal lawyer does on a day to day basis and the difference between a solicitor and a barrister.

What is the difference between a prosecutor and a criminal lawyer?

A prosecutor is a lawyer who is employed by the government to prosecute defendants. They serve the community at large and their function, very simply put, is to ensure that defendants who are brought before the courts are prosecuted and punished to the full extent of the law.
That does not mean that they must secure a conviction at all costs – like criminal lawyers, they too have rules that they need to abide by. One example is a duty of ongoing disclosure. Say for example a person is charged with an offence and the police have gathered all of the evidence that they can in order to try to secure a conviction against the defendant. On the eve of the trial, the prosecutor is provided with new evidence which would help the defendant. They are not allowed to simply ‘bury’ the evidence by not disclosing it to the defence. In fact, to do so would be an extremely serious thing to do. In such a situation the prosecutor must disclose the evidence to the defence, even if it means that the defendant will walk free.

It is a common misconception that the prosecution and defence sides are ‘enemies’. This couldn’t be further from the truth. In my experience, the vast majority of prosecutors I have dealt with understand their duties to be fair and to properly exercise their prosecutorial discretion to ensure that justice is served.

What does a criminal lawyer do on a day to day basis?

A criminal lawyer’s job is an extremely interesting one. Every single day will be different, depending upon the matters that they are currently working on, whether or not they need to attend court for that matter and what their deadlines are.

A typical day would be appearing in court on a sentencing, trial or other interlocutory hearing (such as a hearing seeking the prosecutor to disclose certain material). There is never any way of knowing for certain how long a matter will take in court and so ample time must be allowed for delays.

After court is finished, conferences with clients, barristers, prosecutors (to perhaps negotiate to have charges dropped or downgraded) or their colleagues will take up some of their day. Again, there is no way of knowing how long these tasks take so a typical day will often involve a lot of juggling. Add to this the possibility that a new potential client is arrested, meaning that the lawyer would then have to attend upon the prison or watch-house to confer with this new client.

What is the difference between a solicitor and a barrister?

I am very frequently asked this question because unless a person has had some contact with the criminal justice system they’re not likely to know the answer.

The simplest explanation I can, and do, give is this. Imagine you become ill. The first person you will attend upon is your doctor. Your doctor will ask you a lot of questions, perhaps refer you away for tests, diagnose you with a condition or conditions, and then give you some advice about how to best manage your illness, including possibly giving you a prescription for medication. In the majority of cases your doctor will be able to diagnose and treat without anything further needed.

However, say for example your illness is a particularly bad one, or requires complicated treatment or surgery. The doctor isn’t the best person qualified to do these things and so they will often refer you to a specialist or a surgeon.

In this example, a solicitor is similar to the doctor and a barrister is similar to the surgeon.
However, in the doctor/surgeon example above there is never an overlap in their responsibilities. The doctor will provide an opinion to the specialist and then the patient will attend upon the specialist without the doctor being present. This is different to the solicitor/barrister relationship. In this relationship, the solicitor and barrister will always work together and in Queensland, with the exception of very rare situations, a person is not able to engage or otherwise deal with a barrister without a solicitor being present.

In my next article I will discuss the most common question that I, as well as other criminal lawyers, are often asked – how does a criminal lawyer defend someone who is charged with horrible crimes?

If you’re needing assistance with legal matters or determining your legal rights, Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.

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