There are many different professionals that participate in the important task of mounting a credible defense. Below we examine some of these professionals and their role alongside defense attorneys.

7.10.1 Functions of Defense Attorneys

Defense lawyers investigate the circumstances of the case, keep clients informed of any developments in the case, and take action to preserve the legal rights of the accused. They’re responsible for some decisions, such as which witnesses to call, when to object to evidence, and what questions to ask on cross-examination.. The defendant must make other decisions, most notably after getting advice from the attorney about the options and their likely consequences. Defendants’ decisions include whether to plead guilty and forgo a trial, whether to waive a jury trial, and whether to testify on their own behalf.

The ABA Standards relating to the Defense Function established basic guidelines for defense counsel in fulfilling obligations to the client. The primary duty is to zealously advocate or represent the defendant within the bounds of the law. As a zealous advocate, the defense lawyer should be seen as energetic and enthusiastically fighting to protect the rights of the accused. Defense counsel is to avoid unnecessary delay, avoid misrepresentations of law and fact, and avoid personal publicity connected with the case.

7.10.2 Privately Retained Defense Attorneys

Individuals accused of any infraction or crime, no matter how minor, have the right to hire counsel and have them appear with them at trial. The attorney must be recognized as qualified to practice law within the state or jurisdiction. Generally, criminal defendants do well to hire an attorney who specializes in criminal defense work. However, because many criminal defendants don’t have enough money to hire an attorney, the court will need to appoint an attorney to represent them in criminal cases.

7.10.3 Court-Appointed Attorney

Federal and state constitutions do not mention what to do when the defendant cannot afford an attorney. Initially, the Court interpreted the Sixth Amendment as permitting defendants to hire an attorney to assist them during the trial. Later, the Court held that the Due Process Clause of the Fifth and Fourteenth Amendments includes the right to a fair trial, and a fair trial includes the right to the assistance of counsel. In Powell v. Alabama, 287 U.S. 45, at 58 (1932), the Court concluded that the focus on trial was too narrow. They further emphasized the need for an attorney in every stage of the justice system.

Powell was decided in 1932, and because of television and the multitude of crime drama programs, people probably know more about the criminal justice process than ever imagined by the Powell court. Few nonlawyers know how to conduct themselves at trial, challenge the state’s evidence, make evidentiary objections, or file proper pretrial motions with the rudimentary knowledge gained from watching television. One could consult the internet; however, many individuals charged with crimes have limited education and may struggle to distinguish between sources applicable to their case and those that are not.

7.10.4 The Right to Counsel in Federal Trials

The Court in Johnson v. Zerbst, 304 U.S. 458 (1938), held that in all federal felonies, trial counsel must represent a defendant unless the defendant waives that right. The Court further held that the lack of counsel is a jurisdictional error that would render, or make, the defendant’s conviction void. A court that allows a defendant to be convicted without an attorney’s representation has no power or authority to deprive an accused of life or liberty (Johnson v. Zerbst, 1938).

Zerbst also established rules for a proper waiver of the Sixth Amendment right to counsel. The court said that it is presumed that the defendant has not waived their right to counsel. For a waiver to be constitutional, the court must find that the defendant knew they had a right to counsel and voluntarily gave up that right, knowing they had the right to claim it. Therefore, if the defendant silently goes along with the court process without complaining about the lack of counsel, their silence does not amount to a waiver. The Court defined waiver as an “intelligent relinquishment or abandonment of a known right or privilege.”

In 1945 Congress passed the Federal Rules of Criminal Procedure (FRCP). Rule 44 of the FRCP requires defendants to have counsel or affirmatively waive counsel, either retained or appointed, at every stage of the proceedings from the initial appearance through appeal. This rule was difficult to implement because there was no recognized federal defense bar or federal defense attorneys available or willing to take on appointed cases. So, Congress passed the Criminal Justice Act of 1964, which established a national system for providing counsel to indigent defendants in federal courts.

7.10.5 Effective Assistance of Counsel

Defendant’s attorneys must provide competent assistance and should not harm the defendant’s case by their legal representation. According to McMann v. Richardson, 397 U.S. 759 (1970), the right to counsel means the right to effective assistance of counsel. The constitutional standard for evaluating effective assistance was determined in Strickland v. Washington, 466 U.S. 688 (1984). The Strickland decision looked at two aspects of the representation to determine whether counsel was ineffective. First, the defense attorney’s actions were not those of a reasonably competent attorney exercising reasonable professional judgment. And second, the defense attorney’s actions caused the defendant prejudice, meaning they adversely affected the case outcome.

7.10.6 Waiving Counsel

Sometimes, a defendant wishes to waive counsel and appear pro se, which means to represent oneself at trial. In Faretta v. California, 422 U.S. 806 (1975), the Court held that the Sixth Amendment includes the defendant’s right to represent themself. The Faretta Court found that where a defendant is adamantly opposed to representation, there is little value in forcing them to have a lawyer. The Court stressed that it was important for the trial court to make certain and establish a record that the defendant knowingly and intelligently gave up their rights (Faretta v. California, 1975).