A defence attorney represents a person either charged with a crime or one who has been sued in a civil trial. Some defence lawyers concentrate on only specific types of civil or criminal defence. A defence lawyer is expected to zealously represent his client, including protecting the client's constitutional and other legal rights.
A criminal defence lawyer represents a defendant who has been charged with a crime. Criminal defence lawyers can investigate a crime on behalf of their client. They also ensure that the prosecution does not infringe on the defendant's constitutional rights, and that evidence demonstrating the client's innocence is heard in court. A civil defence lawyer represents a defendant who has been sued, usually for money damages. Civil defence lawyers can investigate a client's case and represent the client in trial or negotiate a settlement. Both civil and criminal defence lawyers can represent corporations or other companies.
Criminal defence lawyers have a long history in the United States. The Sixth Amendment of the Constitution provides that "the Accused shall have...the Assistance of Counsel for his Defense." Today, the Sixth Amendment covers both state and federal felony cases, though not misdemeanours. The Constitution does not provide a right to civil defence lawyers. However, civil defendants often hire defence lawyers because many areas of civil law are complex , as are many court procedure rules.
The first duty of any defence lawyer is to advocate for her client. In a criminal case, this can mean arguing for the defendant's innocence or presenting mitigating factors, such as coercion, to suggest a punishment should be lessened. In a civil case, the defence lawyer can argue that the defendant is not responsible for the plaintiff's situation. The civil defence lawyer can also present affirmative defences, or reasons that the defendant should not have to pay. One example is "assumed risk," which holds that the plaintiff understood the risks involved and decided to proceed anyway.
Both criminal and civil trials are governed by procedural rules. These rules can be confusing, but failing to follow them can result in severe consequences such as a default, which is a forfeiture of a party's right to try the case. The benefit of civil and criminal defence attorneys is that they know what procedural rules apply in a particular case and can use them to benefit their clients.
Television shows tend to exaggerate the abilities of defence lawyers. Criminal defence lawyers exist primarily to protect a defendant's constitutional rights. It is inaccurate to think of proving innocence as the criminal defence lawyer's only purpose. Similarly, civil defence lawyers cannot negotiate every case to a dismissal. Each type of defence attorney bases representation on the individual case.
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