There is a famous HL Menken quote which states “the trouble with fighting for human freedom is that one spends most of one's time defending scoundrels” – it's a sentiment that criminal defence lawyers may take to heart.
All criminal lawyers have been asked the question “how can you defend criminals?”.
It's often a well meaning inquiry by a member of the public blissfully unaware of the deep problems with our criminal justice system and the role of criminal defence in our liberal democracy.
The following attempts to answer that question, by explaining the role of a criminal defence lawyer and clearing up some myths about what defence lawyers actually do.
The role of a criminal defence lawyer
In short, the role of a criminal defence lawyer is to represent the interests of a client charged with a crime. However, this drastically understates the importance of this position in our legal system.
The Australian legal system operates under an adversarial model of criminal trials. This means that a person's guilty is tested (before a jury or a judge sitting alone) by having two sides “battle” within a court room to test whether guilt is proven beyond reasonable doubt.
Prosecutors act on the side of proving a person's guilt. Every accused in a criminal trial as a presumption of innocence and that must be rebutted by evidence put forward by the prosecution. The role of the defence lawyer is to counter this prosecutorial agenda, either by testing the evidence put forward and/or putting forward their own evidence in reply.
Prosecutors (and police), as representatives of the State, have tremendous power and resources that an average citizen is not able to compete with. Ensuring a right to a lawyer by the accused means that a skilled legal professional can act in their interests in ensuring the State has satisfied its burden in proving guilt.
Criminal defence lawyers therefore act as an important piece in a larger system designed to ensure government power and resources aren't used unfairly or, in the worst case scenario, used to convict and punish an innocent person.
A good criminal defence is important to upholding of liberal democratic values of personal freedom and limits of government power.
Aren't you just lying to get them off?
There is a common myth that criminal defence lawyers are just “hired guns” who use trickery and deception to ensure a guilty person goes free.
This fundamentally misunderstands the rules and norms underpinning the legal profession.
All lawyers admitted to practice in Australia have to abide by highethical standardsand codes of conduct that are determined by the regulatory body in the state they practice. In NSW, that body is called the Law Society of New South Wales.
These ethical standards include obligations to act in the best interests of their client, but also higher obligations to the court and the administration of justice.
Whilst ethical standards do not prevent criminal defence lawyers from representing a client they know is guilty, they do explicitly prevent lawyers from lying or knowingly misleading the court on their client's behalf.
A lawyer who knows their client is guilty can still ‘put the prosecution to proof'; which means they can ask questions of prosecution witnesses and make submissions to the court to the effect that the prosecution has failed to prove each of the ‘essential elements' (or ingredients) of the charge case beyond a reasonable doubt, and that their client should therefore be acquitted.
But criminal defences lawyers will not be able to elicit false or misleading evidence, or make false or misleading submissions to the court. Doing so will amount to professional misconduct and could result in them being ‘struck off' the roll of practicing lawyers.
It's all legal loopholes and technicalities!
Another common myth is that criminal defence lawyers use ‘legal trickery' or find “loopholes” whilst advocating for their clients who should otherwise be found guilty.
This misunderstands the nature of the criminal law as there are no tricks which allow lawyers to set clients free on the basis of a ‘legal technicality'.
Instead, criminal offences consist of elements that must be proven beyond reasonable doubt by prosecutors. For example, the offence of ‘larceny' under section 117 of the Crimes Act 1900 (NSW) requires prosecutors to prove:
- That you took and carried away property,
- That the property belonged to another,
- That you did not have the owner's consent,
- That you intended to permanently deprive the owner of the property, and
- That your actions were dishonest.
If any of these elements have not been proven beyond reasonable doubt, an accused cannot be convicted of a crime.
There are also rules of procedure and rule of evidence, which control how evidence is obtained by investigators and whether evidence is admissible in court. These rules ensure certain procedural rights are protected such as a person's right to silence, right to privacy and right not to be unlawfully detained.
Finally, there are a number of formal ‘defences' outlined in law which may mean that a person cannot be found guilty of an offence if established. It is the role of criminal defence lawyers to prove these key defence in court, which can include:
Rather than resorting to ‘legal tricks' criminal defence lawyers advocate for their clients interests by ensuring these laws and standards are upheld. They do this by:
- Testing police and prosecutorial evidence to indicate key elements of the offence have not been proven;
- Putting forward evidence that indicates a person did not commit an offence;
- Preventing any unreliable or unlawfully obtained evidence being used against their client;
- Proving formal defences; and
- Negotiating with the prosecution to see if the matters may be resolved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
