Why Do Americans have a Constitutional Right to Assistance of Counsel and a Legal Defense?
I have been asked that question many times but have never addressed it in an article. The subtext of this question is usually something like this: “How do you represent people you think may actually have committed the crime?”
That’s a great question and the short answer is that I never ask an individual I represent whether they committed a crime and most of them don’t trust their attorney enough to admit it even if they did.
But that is a secondary point. What is important is that the presumption of innocence and other constitutional safeguards for the accused are what distinguishes our country and our Constitution from every other one in world history. It’s really more about the rule of law and requiring the government to prove guilt before the awesome power of the state can be invoked to circumscribe an American citizen’s freedom or even take his life, following due process.
Receiving “due process” of law means we are entitled to a presumption of innocence in every moment prior to a conviction. We have the right against self-incrimination—we don’t have to testify at trial and the fact that we don’t testify cannot be used against us as evidence of guilt. We have the right to an attorney, the right to trial by jury and the right against Double Jeopardy—not being tried twice for the same alleged offense, and the right to confront witnesses against us through cross-examination.
The State also has the entire burden of proof. An accused person doesn’t have to prove anything at trial. The State’s burden of proof is the heavy legal burden of “proof beyond a reasonable doubt.” The State also may not convict someone based upon an illegal search or seizure. Generally, if the police don’t have a warrant signed by a neutral judge—that is based upon probable cause to believe the individual has committed a crime, allowing them to be in a place to discover the alleged criminal activity, that evidence can’t be used in court.
The State also has a continuing legal and ethical obligation to turn over to me all exculpatory evidence (i.e. evidence which proves my client is not guilty) that never goes away.
Why did the Framers of our Constitution feel so strongly that it was necessary to anchor these guarantees in our Constitution? Because they had suffered the very abuses they were now protecting against at the hands of King George and the British government, which eventually led to the Revolutionary War. Thomas Jefferson lists many of these abuses in the Declaration of Independence. So, in setting up our new government the Framers made very certain that such abuses could no longer be perpetrated.
So, when I defend someone, I present the very best legal arguments that may be available to my client. If I’m unsuccessful it means that a thoroughly vetted jury of 12 people have unanimously decided guilt. However, if I persuade even one juror that the State has not carried its burden of proving that my client is guilty, the result is a hung jury, and the state has to start over, and my client remains presumed innocent.
When the trial is finished and a jury returns a unanimous verdict of guilty, I know I have done my job, and the jury did its job. The system worked.
However, even when I lose, it is still critical that the trial was held and that my client received a zealous defense through my challenging the State’s evidence and cross-examining the State’s witnesses. I have tested the obligation of the police to remain thorough and conscientious as they do their critically important jobs—like correctly providing Miranda warnings and preserving evidence with a verifiable chain of custody; requiring the DNA expert to be certain about their findings and requiring that the doctor who performed the autopsy be absolutely certain about their conclusion regarding the cause of death. I have forced the ballistics expert to be certain that this very bullet matched this very gun and have required that any lay witnesses be very certain about what they are testifying to against my client on the witness stand.
That is why I have a clear conscience and a sense of peace. I’ve done my job and protected all of our constitutional rights and have ensured that our criminal justice and judicial systems have worked as our Founders intended.
