A Criminal Lawyer’s Purpose

“What’s it like defending criminals?”

This is one of the most common questions every criminal lawyer in the world will be asked. And this is how it is often responded to.

The first thing that needs to be done is that if a person is charged with an offence, but hasn’t yet been convicted of it, it’s not accurate to refer to them as ‘criminals’. This is because our system is based on the ‘presumption of innocence’, meaning that until they plead guilty, or are found guilty, they are innocent. It is not up to them to prove that they are innocent, but rather it is up to the prosecution to prove that they are guilty. Therefore, the more appropriate question should be, “What’s it like defending people who have been charged with criminal offences”?

The purpose of our criminal justice system

Why do we need to have a system that gives people accused with criminal offences any rights at all? The best way to answer this is to imagine a system where people charged with criminal offences don’t have any rights at all. People could be locked up on the untested and unsupported words of an accuser; sloppy or corrupt law enforcement personnel would have absolute power and discretion with no accountability or counter-balance; and, one can imagine, many, many innocent people will lose their liberties.

Therefore, it is clear that it is better to all be ruled by the law, then to live in a system where there is no law at all. And if one person has legal rights to them, all people should – no matter how heinous or awful their accused crimes are.

A good illustration is this. Imagine a group of people run into a bank and rob it. On their way out they are gunned down by the police and lay bleeding in the street. What do we do with them? Do the police leave them to bleed out and die on the street? No – the police will call ambulances to transport them to hospital where they will be treated by doctors and surgeons.

The reason the police, paramedics, doctors and surgeons do these things are not necessarily because they feel empathy for the robbers, or even because they want to help them. It’s because medical attention is available to every person in a good society, no matter how bad their actions are. It is the same with legal representation. Everyone, no matter what they’ve been charged with, or how bad society says they are, is entitled to legal representation. Because if we say that one person is so bad that they shouldn’t be afforded legal representation, where do we draw the line? Who gets to decide who gets legal representation and who doesn’t? And by what standards is that decision made?

So why do criminal lawyers defence people charged with criminal offences?

Turning back to the original question, a criminal lawyers’ role is not to judge a person. It is not to imagine or think or wonder if their client is guilty or innocent. To do so serves absolutely no purpose for the client, for the lawyer or for society at large.

A criminal lawyers’ role is simply to ensure that their client’s rights are protected and that they are treated fairly in the eyes of the law. If they are to be granted or refused bail, punished at sentence, or acquitted at trial, is entirely a decision for the judges and juries. All that a criminal lawyer can do is to advocate as best they can on their client’s behalf.

What happens if a criminal lawyer encounters a client who confesses guilt?

If, in the course of representing a person charged with criminal offences, the person confesses to their lawyer that they are guilty of the offence, the lawyer has a number of obligations imposed upon them by rules governing the conduct of solicitors and barristers.

Firstly, just because a person admits that they committed the offence doesn’t mean that the lawyer isn’t able to continue acting for them. In such a situation, most of the time the lawyer’s advice to their client would be to plead guilty, where their focus would turn from trying to ‘get their client off’ to mitigating the penalty that is imposed.

If the client admits guilt and tells their lawyer that they still wish to fight the charges, this is entirely possible. Such matters are run by ‘putting the Crown to proof’ – meaning that the objective is to demonstrate that all of the prosecution evidence remains insufficient to convict the client.

The main difference if a client admits guilt, however, is that the lawyer is not able to run a positive defence that it was somebody else who committed the offence. To do so would be dishonest, because the lawyer already knows that their client committed the offence and by suggesting that somebody else did it would be misleading to the court.

What is a lawyer’s function if their client is pleading guilty?

We are sometimes asked by clients, “Well, I’m just pleading guilty – what do I need a lawyer for”?

If a person is pleading guilty their matter will proceed to a sentence hearing, where submissions are made by the prosecution and defence and then sentence ultimately determined by the Magistrate or Judge.

In this process, it is the function of the prosecution and defence to best guide the Magistrate/Judge through the use of ‘precedents’, which are similar past cases, establishing rules, guidelines and factors that the court should take into account when passing sentence.

A good criminal lawyer will be able to procure mitigatory material and advance their client’s case to ensure the most lenient penalty possible. Their roles include:

  1. Procuring and providing any good character references or letters which demonstrate that the person is ordinarily of good character.
  2. Procuring and providing any reports which demonstrate that the person has any medical or mental health issues that may have impacted or explained their offending.
  3. Outlining to the court the person’s personal circumstances, including their upbringing, which may have impacted or explained their offending.
  4. Outlining to the court the positive steps the person has taken towards rehabilitation to give the court comfort that they will not re-offend.
  5. A criminal lawyers’ job is an extremely complex and interesting one. As demonstrated above, they have a very important function in our society and still retain a very important purpose for a person who is pleading guilty. It is at times a very unpleasant job but without them, our entire criminal justice system would not be able to function.

    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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