Criminal Law Practice Essay

Executive Summary

In researching the practice of criminal law, I interviewed a criminal defense attorney who after working in a law firm focused on criminal law started his own criminal defense firm. His firm currently just includes himself and a paralegal/legal secretary, however he hope to eventually invite other lawyers to join him. He has only worked in criminal law, and while he admits that it is challenging work he cannot see himself practicing any other type of law.

Every day, across the nation, thousands of people are arrested and detained by police or otherwise charged with a crime. For some, their cases are resolved or dismissed at the police station. For most, however, the arrest is just the beginning of a criminal justice process that may take years to resolve. The US Constitution guarantees the right of the accused to a fair trial and that they will be presumed innocent until they are found to be guilty. Criminal lawyers are the attorneys tasked with litigating criminal cases.
A criminal law practice focuses on three areas of law: criminal law, criminal procedure, evidence law and professional responsibility. Criminal law defines what constitutes a crime, what needs to be proven in order to find someone guilty of committing a crime and, in the alternative, when a person’s acts are criminal but he nevertheless has not broken the law. Criminal law deals with such topics as For instance, criminal law not only outlines the elements of the crime of second-degree murder (the intentional killing of another that was not planned) but also when a murder is legal such as in the case of self-defense. Criminal procedure describes the rules and regulations that control criminal investigations, trials and appeals. Most of criminal procedure rules are derived from the Constitution such as the Fifth Amendment’s prohibition against self-incrimination. During investigations, criminal procedure focuses mainly on police actions and whether or not they complied with the law. During trial and appeal, criminal procedure focuses on the actions of criminal attorneys, and to a lesser but equally important extent the actions of judges. Criminal procedure is also relevant after the resolution of a case. For example, the Eighth Amendment’s prohibition against “cruel and unusual punishment” is most often called into question after the defendant has been found guilty and is already in prison serving his sentence. Evidence law regulates what is proper evidence in a case, how it can be used in a case and the process by which it is obtained, retained and “entered into” against a defendant. Professional Responsibility are the regulatory controls over attorneys. In essence, professional responsibility informs an attorney of how he should act and work in order to keep his license. For instance, the law of professional responsibility tells a criminal attorney when he is prohibited from revealing any information related to the representation of a client without the client’s consent or the duty of an attorney to provide competent service. While professional responsibility is important to all attorneys no matter what they practice, it is especially important for criminal attorneys because the final result in a criminal case may mean that a person is imprisoned for a long duration or even put to death. Accordingly, more is expected from criminal attorneys in regards to their responsibilities to their clients, the courts and the law.
In addition, criminal lawyers generally need to be proficient in a number of lawyering skills including legal research, litigation and trial advocacy, public speaking, and writing. These skills are important for the criminal lawyer because the primary focus of a criminal practice, where the case is ultimately resolved, is either in a hearing or a trial. To be effective in a hearing or trial, an attorney usually needs to persuade a judge or jury either orally or in writing. Preparation for a hearing or trial requires an attorney to gather, organize and analyze disparate information, draft legal memos, and develop a strategy to succeed. Furthermore, criminal practice is a “people-oriented” practice that often involves communication with diverse range of people on multiple levels. Accordingly, criminal lawyers need to be able to speak, write, argue, interview and negotiate in a variety of ways. Lawyering skills give attorneys the tools they need to accomplish these duties effectively.
There are two types of criminal lawyers: prosecutors and defense attorneys. Prosecutors, who are also known as district or city attorneys, represent the government, and by implication the victim. The majority of prosecutors work at the local level for the county or city government. This is because most criminal activity happens at the local level. There are federal prosecutors, known as United States Attorneys, who work for the US Department of Justice. They have national jurisdiction over any federal crimes, international crimes or crimes that cross state borders such as drug trafficking.
As the name suggests, prosecutors prosecute criminal cases. A criminal case generally begins with an arrest and so a prosecutor’s first contact with a case generally occurs after the police have finished their own investigations or made an arrest. Once a case is brought to a prosecutor, there initial task is to determine if there is enough evidence to charge the defendant or otherwise prove that the defendant is guilty. If there is not enough evidence the prosecutor can decide not to pursue the case any further. Alternatively, the prosecutor may request that police obtain more information or find more witnesses. If there is enough evidence tending to prove a criminality, the prosecutor will next determine the appropriate charge and penalty and file a formal criminal complaint against the defendant in a criminal court. Less common but equally important, a prosecutor can be involved in a case before arrest. In these instances, the prosecutor will work with or direct police to obtain enough evidence that a crime occurred or is about to occur to justify: an arrest, a criminal charge or evidence of guilt beyond a reasonable doubt.
Between the filing of a formal complaint and trial, the major duty of the prosecutor is in plea negotiations, more commonly known as plea bargaining. In plea bargaining, the prosecutor makes a determination of what crime and level of punishment a defendant could agree to rather than go to trial. This requires the defendant to admit that they are guilty but generally to a lesser crime than was originally charged. If the defendant declines the offer, the case usually goes to trial where the role of the prosecutor is to convince the judge or jury of the defendant’s guilty by introducing evidence that proves his actions. If the defendant is convicted, the prosecutor also plays a role in recommending the appropriate sentence.
Defense attorneys represent persons accused of crimes, commonly known as defendants prior to a finding of guilt or convicts if they are found guilty. The duties and responsibilities of defense attorneys is to “zealously” defend their clients by asserting their rights, exploring all possible defense or explanations to the charges the defendant has been charged with. In carrying out his duties, a defense attorney is allowed to question police and any witnesses for the prosecution, perform their own investigation, and provide their own experts and witnesses.
A criminal defense attorney generally comes into a case once a formal complaint is charged against the defendant. When the defendant makes his first appearance in court, which is required to be held within a certain time, the court will ask the defendant if he has an attorney, wants an attorney and if he can afford an attorney. If he wants one but can’t afford one, the court will assign an attorney to represent him. Once assigned to a case, criminal defense attorneys have a variety of responsibilities including meeting with the defendant, investigating the case by interviewing police and witness both for and against the defense; researching the law relevant to the case and participating in plea bargaining with the prosecutor. If a case cannot be resolved before trial, the defense attorneys represents the defendant at trial with the goal of either proving to a judge or jury his innocence or showing that the prosecutor has failed to prove their case beyond a reasonable doubt.
Defense attorneys can be separated into public and private defense attorneys. Public defense attorneys, more commonly known as public defenders, are either as government employees or as private attorneys that contract to perform services for the government. For example, the Federal Public Defender is the US government’s criminal defense firm. Its attorneys are government employees, just like a prosecutor, with the exception that they represent defendants. Alternatively, Washington, D.C.’s Public Defender Service is a private criminal defense firm that the city of hired to perform its criminal defense responsibilities. Its employees are not city employees but rather private attorneys. Prior to 1963, there were almost no public defenders. During those times if a person was charged with a crime, his options included hiring a private attorney, seeking a private attorney to voluntarily work on his case or represent himself. However, in the 1963 landmark case Gideon v. Wainwright, the Supreme Court held that every person accused of a crime that might result in imprisonment had a right to an attorney, and if they could not afford an attorney, the government was required to provide one free of charge. This illustrates the biggest difference between a private and public defense attorney. Public defense attorneys are paid by the state rather than the defendant. As a consequence, public defense attorneys have limited choice in who they represent but rather must represent whoever they are assigned to. The majority of criminal defendants are indigent; accordingly, the majority of criminal defense attorneys are public defenders.
Private defense attorneys are independently hired by the defendant to represent them. This includes all costs associated with the case. Private attorneys have the ability and right to choose who they represent or whether or not they will continue representation if, for instance, the defendant fails to pay. Since private defense attorneys have to power to determine their own caseloads, they tend to have smaller caseloads than public defenders and therefore have more time to dedicate to an individual case. Private attorneys also tend to demand higher fees from clients for representation. Beside these distinctions, there is little that is different between public and private defense attorneys. To be sure, they generally have the same qualifications, legal education, skills, experience and dedication.
Criminal attorneys spend the majority of their work day in court and, in the case of defense attorneys, at the jail. At court, criminal attorneys frequently contact judges, court staff, clients and each other. In addition to judges, court staff and defense attorneys; prosecutor spend a large portion of their work time with police, going over a case, interviewing witnesses or assisting police officers carry out an investigation. Alternatively, for defense attorneys, the majority of their time outside of court is spent with their clients, investigators, police and jail staff. An investigator assists a criminal defense attorney in the same way a police officer assists a prosecutor. In short, they provide information, such as from interviewing a witness; obtain and analyze evidence either supplied by the government or found independently or provide in court testimony of their activity investigating a case.
Criminal law is a broad area of practice and touches on any area of human activity. The most common areas of criminal practice include misdemeanor, felony, juvenile, death penalty and appellate practice. Misdemeanor cases refer to minor crimes that have a maximum punishment of a year in jail. Common misdemeanor crimes include drinking under the influence (DUI), driving without a license and theft of property with a minor value. Felonies refer to the most serious crimes with a minimum penalty of at least a year in prison. Juvenile crimes, or “juvie” as it is commonly known, deals with those criminal cases involving minors. Appellate practice refers to cases resolved at the trial level but reviewed by a higher court to determine whether the results of the original case were legally correct.
In recent years, white-collar crime, computer or cybercrime, transnational crimes are some of the fastest growing areas of criminal practice. White-collar crime, as opposed to common street crime, refers to non-violent crimes of a fraudulent nature focused on achieving a financial gain. Commonly encountered white-collar crime includes money laundering, corporate fraud and embezzlement. Since 2008, the increased number of instances where businesses have been found to be acting illegally has made the prosecution (and defense) of white-collar crime a major part of the criminal justice system (McClure and Eimermann). Computer crime refers to any criminal activity that either targets a computer, uses a computer to facilitate a crime or where a computer is incident to the criminal act. Some common examples of computer crime include hacking, software piracy and credit card fraud. As work, study, entertainment and communications increasingly go online; criminals have also moved into cyberspace targeting computers and computer users that are not secure or taking advantage of gaps in the law which facilitates the commission of computer crimes. In response, the government has focused an increased amount of resources to fighting computer crime. Accordingly, there is more work in the area for both prosecutors and defense attorneys. Transnational crime refers to crimes that are initiated in one country but affect another country. One of the clearest examples of transnational crime is terrorism. Since 2001, the prosecution of terrorist cases has been one of the major goals of the Department of Justice and the US criminal justice system (Kris).
I interviewed criminal defense attorney Dillon Aubrey to complete this section of the assignment. The interview occurred on January 22, 2015 at 11:30 am at Mr. Aubrey’s office which is near to the courthouse. The interview lasted for approximately one hour and a half. Mr. Aubrey can be contacted at via his e-mail address:
The interview covered a variety of topics connected to the practice of criminal law generally, and criminal defense practice in particular. Mr. Aubrey has been working as a criminal defense attorney for nearly a decade of experience. It was the first and only job he had when he graduated law school. He was interested in criminal law early in law school, mainly as a result of the criminal law classes took and criminal professors that taught him. To be sure, while in law school he focused heavily in preparing for a career in criminal law not only through his course work but also in extra-curricular activities. He volunteered at the courthouse during his first year which gave him first-hand experience in the courtroom. Additionally, during his final year he interned at the office of a local criminal defense attorney. After graduating law school, the local criminal attorney that he interned with, hired him as an associate. After working for three years in misdemeanor court, he started working in felonies. After five years as a felony attorney he began his own solo practice.
According to Mr. Aubrey, his normal day begins around 7:30 am when he arrives at the office. He first checks his e-mail and reviews any voice messages recorded over night before reviewing any cases he has for the morning. Around 8:00 am, Mr. Aubrey will head to the courthouse which is about a 10 minute walk from his office. Court hearings generally start at 8:45 am so between the time he arrives at the courthouse and the start of court, he will meet with clients or perhaps talk with a prosecutor about a case. From 8:45 am to around noon, the majority of his time will be spent in court hearings. If there is no other hearings or meetings he will head back to the office for lunch. However, oftentimes he will spend part of his lunch hour at the jail talking and meeting with clients that are currently in detention. At around 1:30 pm, he will head back to court for any afternoon hearings or meetings with prosecutors, clients, judges or court staff. Around 5:00 pm when he will head back to the office to answer e-mails and phone messages, meet with clients, complete paperwork and review his schedule for the next day. On most days he gets off work around 6:00 pm.
In his decade of experience, he has represented hundreds of defendants in state and local courts covering a range of charges from failure to pay child support to assault with a deadly weapon. He describes his work as given him an acute understanding of the “few joys and many sorrows” that are “part and parcel” of representing the accused. But his experiences have also been important in helping me understand how other criminal attorneys work and think and the criminal justice process works. This is necessary knowledge in helping him to effectively navigate the process of defending an accused. Criminal law, on either side of the case, is not easy but it is thoroughly exciting, necessary, worthwhile and rewarding. As he sees it, speaking up for those without a voice is the reason he goes to work every day. According to Mr. Aubrey, an effective criminal attorney needs to be passionate about criminal law, thick-skinned to handle the inevitable challenges that you will encounter. Moreover, for criminal defense work, it’s always helpful if you like to question authority because that is what you’ll be doing most of the time. Finally, you need to pay attention to detail as no two cases are alike, and success is often achieved by finding “the helpful needle in the haystack of chaos.”
Most recently, Mr. Aubrey had the opportunity to put my criminal defense skills to work in China as a short-term consultant focusing on providing legal technical assistance and support to criminal defense attorneys based in rural China. While he described his work in China as giving him the opportunity to better understand the American system through encountering basic differences in criminal terminology, processes and perceptions between the two jurisdictions; he was surprised by how much, especially the passion for the job, that is the same in criminal defense attorneys here and over there.
After researching the area and conducting the interview, I am surer now that I want to work in this legal area. While I am not yet sure of which side (prosecution or defense) I want to focus on, although from my research it seems that many criminal lawyers switch sides at least once during their careers. I think Mr. Aubrey’s description of his work; that it is “exciting, necessary, worthwhile and rewarding” best describes why I’m interested in this legal area.

Works Cited

Kaci, Judy H. Criminal Procedure. Incline Village: Copperhouse, 1998. Print.
Kris, David S. “Law Enforcement as a Counterterrorism Tool.” Journal of National Security Policy and Law, 26 Jun. 2011. Web. 26 Jan. 2015.
McClure, Thomas E., and Thomas E. Eimermann. Fundamentals of Criminal Practice: Law and Procedure. New York: Aspen, 2011. Print.