Defense attorneys have been around, in one form or another, for centuries. Back in ancient Greece, for example, an accused person might hire an orator to speak at trial on his behalf. Back then, knowledge of the law wasn’t as important as an ability to sway the jury. Historically, though, England allowed defense attorneys only in misdemeanor cases, and then only if the defendants could pay for them. People accused of felonies could pay to consult with an attorney before the trial but had to argue on their own behalf in court. (Although victims could hire a prosecutor—there was no equivalent to the District Attorney—they rarely did so.) By the beginning of the 18th century, however, defense attorneys were having a more active part in criminal cases. And this timing is important, because that’s when much of Britain’s legal system was exported to what became the United States.
By the time the US Constitution was written, the right to counsel in criminal cases was considered important enough to be included in the 6th Amendment. But it wasn’t until the 1960s that the Supreme Court ruled that in all criminal cases—state and federal—in which the defendant might be imprisoned, he is entitled to counsel, and the government must provide an attorney for him is he can’t afford to pay for one himself. Approximately 70-80% of defendants are indigent and unable to afford an attorney on their own.
There are several systems by which defense attorneys can be administered, and the specifics vary with jurisdiction. Broadly speaking, most major metropolitan areas have a public defender’s office, in which the lawyers work full time for the government, providing defense counsel for indigent defendants. But in less populated areas, a system like that may make less sense. In those cases, lawyers in private practice may contract with the government to provide defense services for a set amount of time and money. Or the courts may assign specific attorneys in private practice to defend particular cases. Some jurisdictions use a combination of these systems. For example, they might have a public defender’s office but rely on contract or assigned lawyers if the caseloads get too heavy.
While the right to an attorney may seem pretty basic, it encompasses a lot of details. To which specific proceedings does it apply? When can it be waived? What are the rules with respect to what defense attorneys can and can’t do? What are the standards of quality for defense representation? All interesting questions for later posts. For now, a warning—if you have a defense attorney in your story, make sure you do your research and find out how your jurisdiction administers defense services.