Many different professionals participate in the important task of mounting a credible defense. Below, we examine some of these professionals and their roles alongside defense attorneys.

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. Check out The ABA Standards relating to the Defense Function [Website] if you would like to learn more.

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.

Court-Appointed Attorney

Court appointed attorneys are lawyers selected by the court to represent an indigent or poor defendant. 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. Feel free to learn more about the Sixth Amendment [Website] and the Due Process Clause of the Fifth and Fourteenth Amendment [Website].

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. Very few non-lawyers 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.

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). You are welcome to learn more about Johnson v. Zerbst, 304 U.S. 458 (1938) [Website].

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. As we learned previously in this section, the federal and state courts operate separately from one another. So, while federal criminal defendants who could not afford an attorney in a criminal case were having their rights protected by 1964, poor defendants in the state courts were subject to inconsistent protection. Feel free to learn more about the Federal Rules of Criminal Procedure (FRCP) [Website] and the Criminal Justice Act of 1964 [Website].

The Right to Counsel in State Courts

The evolution of state-level court-appointed counsel has been a crucial aspect of the American criminal justice system’s development. The landmark case of Gideon v. Wainwright in 1963 marked a pivotal moment in this evolution. Clarence Earl Gideon, a Florida man who was charged with breaking and entering, requested the court to appoint him a lawyer since he could not afford one. The court denied his request, and Gideon was forced to represent himself during his trial, where he was convicted and sentenced to five years in prison. Gideon, determined to fight for his constitutional rights, filed a petition to the Supreme Court, arguing that the state’s refusal to provide him with legal representation violated his Sixth Amendment right to counsel. In a unanimous decision, the Supreme Court agreed with Gideon, ruling that all defendants facing felony charges must be provided with legal representation if they cannot afford it (Gideon v. Wainwright, 1963). After being retried with the help of a local attorney who had the skills needed to argue his case, Gideon was found not guilty in his new trial. This landmark decision established the right to counsel for indigent defendants in state courts, significantly altering the landscape of criminal justice in America.

“If an obscure Florida convict named Clarence Earl Gideon had not sat down in his prison cell with a pencil and paper to write a letter to the Supreme Court, and if the Court had not taken the trouble to look for merit in that one crude petition … the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter, the Court did look into his case … and the whole course of American legal history has been changed.”

Attorney General Robert F. Kennedy

Speech Before the New England Conference on the

Defense of Indigent Persons Accused of Crime

November 1, 1963

The evolution of state-level court-appointed counsel continued with California’s development of the first public defender or court-appointed counsel system in the United States. In 1914, California passed legislation that established the country’s first public defender’s office in Los Angeles County. This office provided legal representation to indigent defendants who could not afford to hire an attorney, ensuring that they received a fair trial. The success of California’s public defender system led to its adoption in other states, further expanding the availability of court-appointed counsel for defendants in state courts. Over time, the rights of state defendants have come to parallel those of federal defendants, ensuring that all individuals facing criminal charges are afforded the same protections under the law. This evolution reflects the ongoing efforts to ensure equal access to justice for all individuals, regardless of their financial means, in state-level criminal proceedings.

Despite the significant progress made over the 50 years since the Gideon decision, the promise of equal access to quality legal representation for all defendants, regardless of financial means, remains unfulfilled. The quality of criminal defense services varies widely across states and localities, and many defenders find themselves overwhelmed by excessive caseloads and lacking adequate funding and independence, making it impossible for them to meet their legal and ethical obligations to represent their clients effectively. Non-white defendants often face additional challenges, as they are more likely to lack resources and access to quality counsel. These disparities can result in unequal treatment and a lack of fairness in the criminal justice system, particularly for individuals with mental illness or juveniles, who often face unique challenges in navigating the legal process. The ongoing struggle to ensure equal access to justice for all individuals, regardless of race or economic status, remains a critical issue in our criminal justice system.

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. Second, the defense attorney’s actions caused the defendant prejudice, meaning they adversely affected the case outcome.

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).

Licenses and Attributions for Courtroom Workgroup: Defense Attorneys

Open Content, Shared Previously

“Courtroom Workgroup: Defense Attorneys” is adapted from “7.10. Courtroom Workgroup: Defense Attorneys” by Lore Rutz-Burri in SOU-CCJ230 Introduction to the American Criminal Justice System by Alison S. Burke, David Carter, Brian Fedorek, Tiffany Morey, Lore Rutz-Burri, and Shanell Sanchez, licensed under CC BY-NC-SA 4.0. Modifications by Sam Arungwa, revisions by Roxie Supplee licensed CC BY-NC-SA 4.0, include significant edits to the state counsel section, inclusion of DEI content, and updating content for clarity.