5.9. Courtroom Workgroup: Defense Attorneys

Lore Rutz-Burri

The Sixth Amendment to the U.S. Constitution provides, “The accused shall enjoy the right…to have the Assistance of Counsel for his defense.” Most state constitutions have similar provisions.  Historically, the right to counsel meant that the defendant, if they could afford to hire an attorney, could have an attorney’s assistance during their criminal trial. This right has developed over time and now includes the right to have an attorney’s assistance at all critical stages in the process, or at all criminal proceedings that may substantially affect the rights of the accused.  Importantly, the right to the assistance of a defense counsel has been held to require that the state pay the costs of the defense counsel when a person is indigent or has insufficient financial resources to pay. The two basic types of defense attorney – privately-retained and appointed – are described in the gray boxes below.

Privately-Retained Defense Attorneys

Individuals accused of any infraction or crime, no matter how minor, have the right to hire counsel and have them appear with them at trial. The attorney must be recognized as qualified to practice law within the state or jurisdiction, and generally, criminal defendants do well to hire an attorney who specializes in criminal defense work.  However, because many criminal defendants don’t have enough money to hire an attorney to represent them, the court will need to appoint an attorney to represent them in criminal cases.


Appointed Counsel 

Federal and state constitutions do not mention what to do when the defendant wants, but cannot afford an attorney’s representation. Initially, the Court interpreted the Sixth Amendment as permitting defendants to hire an attorney who would assist them during the trial. Later, the Court held that the Due Process Clauses of the Fifth and Fourteenth Amendment includes the right to a fair trial, and a fair trial includes the right to the assistance of counsel. In Powell v. Alabama, 287 U.S. 45, at 58 (1932), the Court concluded that the focus on trial was too narrow. It stated, “[T]he most critical period of the proceeding[s] against the defendants might be that period from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation, and preparation are vitally important. Defendants are as much entitled to . . . [counsel’s] aid during that period as at the trial itself.” [1]

Between Powell (1932) and the case of Gideon v. Wainwright, 372 U.S. 335 (1963), the Court decided when the appointment of counsel was necessary for a fair trial in state prosecutions on a case-by-case basis. In Gideon, however, the Court held that this case-by case-approach was inappropriate.  It held that the state had to provide poor defendants access to counsel in every state felony prosecution. Lawyers in serious criminal cases, it said, were “necessities, not luxuries”. Since Gideon, the Court has extended the obligation to provide counsel to state misdemeanor prosecutions that result in the defendant receiving a jail term. The Court found that the legal problems presented in a misdemeanor case often are just as complex as those in felonies. [2] In two cases, Argersinger v. Hamlin, 407 U.S. 25 (1972) and Scott v. Illinois, 440 U.S. 367 (1979), the Court tied the right to counsel in misdemeanor cases to the defendant’s actual incarceration. Because it is difficult to predict when a judge will want to incarcerate a person convicted of a misdemeanor, this approach is difficult to implement. [3] [4]Many states instead appoint counsel to an indigent defendant charged with a crime where a possible term of incarceration could be imposed.

The Court left it for the lower courts to decide when a person is indigent. Lower courts have generally held that the financial resources of a family member cannot be considered. Also, courts cannot merely conclude that because a college student is capable of financing his or her education that he or she is capable of hiring an attorney. A person does not have to become destitute in order to be classified as indigent. An indigent defendant may have to pay back the court-appointed attorney’s fees if they are convicted or enter a plea. In practice, most courts collect appointed attorneys’ fees at a standard rate and much reduced from the actual costs of representation as part of the fines that a convicted defendant must pay. When acquitted, defendants are not required to pay the state back for the attorney fees.

Mechanisms for Appointing Counsel

Different states rely on different mechanisms, and organization, for appointing attorneys to represent “indigent” defendants. Most states now have public defenders’ offices. Because public defenders and assistant public defenders handle only criminal cases, they become the specialists and have considerable expertise in representing criminal defendants. Public defender offices frequently have investigators on staff to help the attorneys represent their clients. In some states, courts appoint or assign attorneys from the private bar (not from the public defender’s office) to represent indigent defendants. The mixed system uses both assigned counsel, or associations of private attorneys who contract to do indigent criminal defense, and public defenders. For example, the public defender’s office may contract with the state to provide 80% of all indigent representations in a particular county. The remaining 20% of cases would be assigned to the association of individual attorneys who do criminal defense work – some retained clients, some indigent clients – or private attorneys willing to take indigent defense cases.

In practice, there is no purely public defender system because of “conflict cases.” Conflicts exist when one law firm tries to represent more than one party in a case. Assume, for example, that Defendant A conspired with Defendant B to rob a bank. One law firm could not represent both Defendant A and Defendant B. Public defender offices are generally considered one law firm, so attorneys from that office could not represent both A and B, and the court will have to assign a “conflict” attorney to one of the defendants.

Did You Know?

Pennsylvania is one of only two states that provides NO state funding, or supervision, for indigent defense. Instead, individual counties are responsible for setting up and financially supporting a system of appointed counsel. In practice, this means that there is dramatic variability in the quality, and availability, of public defenders by county. (In fact, the per capita budget for indigent defense differs by a factor of 10 between the “best-funded” county – Philadelphia – and the worst-funded county – Mifflin.) Find your county in this 2021 report by the PA General Assembly.

Functions of Defense Attorneys

Defense lawyers investigate the circumstances of the case, keep clients informed of any developments in the case, and take action to preserve the legal rights of the accused. Some decisions, such as which witnesses to call, when to object to evidence, and what questions to ask on cross-examination, are considered to be strategic ones and may be decided by the attorney. Other decisions must be made by the defendant, most notably, after getting advice from the attorney about the options and their likely consequences. Defendants’ decisions include whether to plead guilty and forego a trial, whether to waive a jury trial, and whether to testify on their own behalf.

The American Bar Association Standards relating to the Defense Function established basic guidelines for defense counsel in fulfilling obligations to the client. The primary duty is to zealously represent the defendant within the bounds of the law. Defense counsel is to avoid unnecessary delay, to refrain from misrepresentations of law and fact, and to avoid personal publicity connected with the case. Fees are set on the basis of the time and effort required by counsel, the responsibility assumed, the novelty and difficulty of the question involved, the gravity of the charge, and the experience, reputation, and ability of the lawyer.

Tricky Issues in Representation 

The right to counsel means the right to be represented by an attorney, someone legally trained and recognized as a member of the bar association; it does not always mean the right to  an attorney of one’s choice. For example, in Wheat v. United States, 486 U.S. 153 (1988), one defendant who wanted to be represented by the same attorney who was representing his accomplice/co-conspirator in a complex drug distribution conspiracy was not allowed to have that attorney. The Court disallowed his application for the appointment of counsel noting that irreconcilable and unwaivable conflicts of interest would be created since there was the likelihood that the petitioning defendant would be called to testify at a subsequent trial of his co-defendant and that his co-defendant would be testifying in the petitioner’s trial. On the other hand, in United States. v. Gonzalez-Lopez, 553 U.S. 285 (2008), the Court reversed the defendant’s conviction because the trial court erroneously deprived the defendant of his choice of counsel. The defendant, Gonzales-Lopez, had hired counsel from a different state, and during pretrial proceedings, the judge and the counsel had some disagreements. The judge then prohibited the attorney from taking part in the defendant’s trial. The Court found that the trial judge violated the defendant’s Sixth Amendment rights.

Defendants cannot repeatedly “fire” their appointed counsel as a stall tactic, and, at some point, the court will not allow the defendant to substitute attorneys and will require the defendant to work with whatever attorney is currently assigned. A defendant may not force an unwilling attorney to represent him or her, but a court does have the discretion to deny an attorney’s motion to withdraw from representation after inquiring about counsel’s reasons for wishing to withdraw. This may present an ethical dilemma for the attorney, because professional rules of responsibility require that even when an attorney withdraws from a case, he or she must still maintain attorney-client confidences. If, for example, the attorney knows that the defendant insists on taking the stand and presenting perjured testimony, the attorney must withdraw. But, at the same time, the attorney cannot discuss with the court why he or she needs to withdraw.

What Is “Effective Assistance of Counsel”?

Defendants’ attorneys must provide competent assistance and should not harm the defendant’s case by their legal representation.  According to McMann v. Richardson, 397 U.S. 759 (1970), the right to counsel means the right to effective assistance of counsel. The constitutional standard for evaluating effective assistance was determined in Strickland v. Washington, 466 U.S. 688 (1984). The Strickland decision looked at two aspects of the representation to determine whether counsel was ineffective. First, the defense attorney’s actions were not those of a reasonably competent attorney exercising reasonable professional judgment; and second, the defense attorney’s actions caused the defendant prejudice, meaning that they adversely affected the outcome of the case (i.e., they likely caused the jury to find the defendant guilty).

Courts may be more inclined to find ineffective assistance of counsel in a death penalty case than other run-of-the-mill cases. For example, the Court found the defense attorneys provided ineffective assistance in the sentencing portion of defendant’s death penalty trial for the murder of a 77-year-old woman because they had failed to conduct an adequate “social history” investigation of the defendant’s life and had not presented information to the jury which showed that defendant had been subject to regular sexual abuse as a child (Wiggins v. Smith, 539 U.S. 510 (2003)).

Waiving Counsel

Sometimes, a defendant wishes to waive counsel and appear pro se, or represent him or herself at trial. The Court, in Faretta v. California, 422 U.S. 806 (1975), held that the Sixth Amendment includes the defendant’s right to represent himself or herself.  The Faretta Court found that, where a defendant is adamantly opposed to representation, there is little value in forcing him or her to have a lawyer. The Court stressed that it was important for the trial court to make certain and establish a record that the defendant knowingly and intelligently gave up his or her rights.

“Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish he knows what he is doing and his choice is made with eyes open.” [5]

In McKaskle v. Wiggins, 465 U.S. 168, at 174 (1984), the Court held that a “defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure. Nor does the Constitution require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course.” The constitutional right to self-representation does not mean that the defendant is free to obstruct the trial, and a judge may terminate self-representation by a defendant who is obstructing the process. Frequently, judges will assign a standby counsel to assist defendants. Stand-by counsel is an attorney who can be available to answer questions of a pro se defendant, and if necessary, standby counsel can step in if the defendant is engaging in misconduct.

  1. Powell v. Alabama, 287 U.S. 45, at 58 (1932)
  2. Gideon v. Wainwright, 372 U.S. 335 (1963)
  3. Argersinger v. Hamlin, 407 U.S. 25 (1972)
  4. Scott v. Illinois, 440 U.S. 367 (1979)
  5. Faretta v. California, 422 U.S. 806, 835 (1975). 


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5.9. Courtroom Workgroup: Defense Attorneys Copyright © 2019 by Lore Rutz-Burri is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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