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- What a criminal defense attorney does
- The right to counsel has defined boundaries
- Retained counsel, public defenders, and appointed private attorneys
- A defendant does not always control the choice of appointed lawyer
- The Constitution sets a standard for effective assistance
- Why federal and state procedure must be separated
- Sources
Key Facts
- Federal and state: A criminal defense attorney represents a person accused of a crime, advises the client, evaluates the government’s case, and advocates for the defense in covered proceedings.
- Federal constitutional level: The Sixth Amendment right to counsel applies in criminal prosecutions, but the timing, offense seriousness, and procedural stage matter.
- Federal and state: Defense counsel may be privately retained or appointed; appointment depends on governing law and financial eligibility rather than a general right to any lawyer the accused selects.
- Federal constitutional level: Strickland v. Washington describes the constitutional ineffective-assistance test as deficient performance plus resulting prejudice.
A defense attorney is a lawyer who represents a person facing a legal claim or criminal accusation. In criminal law, defense counsel advises and advocates for the accused while protecting rights that apply during the prosecution.
What a criminal defense attorney does
Defense counsel reviews the accusation and available evidence, researches governing law, advises the client about the case, communicates with the prosecution, and represents the defense in court. The precise work depends on the charge, procedural stage, jurisdiction, and scope of the engagement or appointment.
In a federal appointed case, 18 U.S.C. § 3006A authorizes counsel to provide representation at every stage from initial appearance through appeal, including ancillary matters appropriate to the proceedings. Federal Rule of Criminal Procedure 44 states a parallel appointment right for a defendant unable to obtain counsel unless the right is waived.
The right to counsel has defined boundaries
The Sixth Amendment guarantees the assistance of counsel in criminal prosecutions. In Gideon v. Wainwright, the U.S. Supreme Court held that an indigent defendant charged with a felony in state court has a right to appointed counsel under the Fourteenth Amendment.
The constitutional rule has defined boundaries and does not mean that government-paid counsel is available for every legal problem. Federal appointment statutes and rules identify covered proceedings and stages in federal court.
In federal court, Federal Rule of Criminal Procedure 44 states that a defendant who cannot obtain counsel is entitled to appointment at every stage from initial appearance through appeal unless the defendant waives that right. The Criminal Justice Act, 18 U.S.C. § 3006A, supplies the federal appointment and compensation framework for financially eligible people in covered proceedings.
Retained counsel, public defenders, and appointed private attorneys
A retained defense attorney is privately selected and paid under an engagement agreement. A public defender is a government-funded defense lawyer or a lawyer employed by a defender organization who represents eligible clients. Courts may also appoint qualified private attorneys, often called panel attorneys, when the governing appointment system provides for them.
Federal defender organizations and Criminal Justice Act panel attorneys are both parts of the federal appointed-counsel system. The Administrative Office of the U.S. Courts explains that panel attorneys are private lawyers appointed by federal courts and compensated under the statutory program.
A defendant does not always control the choice of appointed lawyer
The right to counsel and the ability to select a particular lawyer are related but different.
An indigent defendant ordinarily has a right to competent appointed representation, not an unrestricted right to choose a particular public defender or panel attorney. Courts also may disqualify retained counsel when a serious conflict threatens the integrity of the proceeding.
Wheat v. United States illustrates the conflict boundary. The Supreme Court recognized a presumption in favor of a defendant’s chosen counsel but held that trial courts have substantial latitude to refuse a conflict waiver when an actual or serious potential conflict exists.
The Constitution sets a standard for effective assistance
The constitutional standard for ineffective assistance is demanding and looks backward at the representation. Under Strickland v. Washington, a claimant must show that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense.
Strickland also requires courts to avoid judging strategic decisions with hindsight and to evaluate challenged conduct in the circumstances existing at the time. A lost motion or unfavorable outcome, standing alone, does not establish constitutionally ineffective assistance.
Why federal and state procedure must be separated
Gideon and Strickland establish federal constitutional baselines. Section 3006A and Rule 44 govern federal criminal practice. They do not supply every appointment procedure, deadline, qualification rule, or remedy used in state court.
State statutes, court rules, public-defender systems, and constitutional provisions govern much of state representation. A national description can explain the defense function, but the court and jurisdiction determine the operative appointment process and procedural rights in a particular case.
For a closer look at the profession, see the related guide to a criminal defense attorney. The separate overview of the prosecutor’s role explains the opposing government function.
Sources
- Gideon v. Wainwright, 372 U.S. 335 (1963)
- Strickland v. Washington, 466 U.S. 668 (1984)
- Wheat v. United States, 486 U.S. 153 (1988)
- 18 U.S.C. § 3006A, Adequate Representation of Defendants
- Federal Rule of Criminal Procedure 44
- Cornell Legal Information Institute: Defense Attorney
- United States Courts: Defender Services
