Criminal System: The Right to Counsel and Ethics of Defending Criminals


The right of counsel is meant to protect the accused from an unfair trial. It is guaranteed by the 6th Amendment to the US Constitution. The lawyer in question must be effective as this is the only way that an adequate defense may be provided (Jaffe 1471). Anyone who cannot afford legal representation is provided with an attorney through the public defender framework. They may, however, waive that right as long as they do so knowingly and without duress.

The right of counsel

Courts of law have the authority to curtail the freedoms of those who have been accused of criminal offenses. It is imperative to appreciate that upon conviction, someone’s life can be altered in a significant manner. Legal representation is important as it increases the probability of the defendant being tried fairly. It is on this basis that the Supreme Court ruled in Gideon v. Wainwright (1963) that the right of counsel is fundamental (Supreme Court of the United States, Gideon v. Wainwright). Without it, the criminal justice system would be inconsistent, and the element of justness would be lost.

Court-appointed attorneys were already being provided to indigent defendants within the federal system even before that decision. The impact of the decision was that henceforth, state courts would be required to appoint attorneys for anyone who could not afford one. Besides, the 14th Amendment necessitates following the due process in scenarios where an accused person may lose their life, property, or liberty (Jaffe 1474). The premise is that when the process is unbiased, the result is often impartial.

Rejection of counsel

An individual may waive their right of counsel, but this must be done properly and voluntarily. This means that they must do so intelligently, knowingly, and without any kind of duress. They must be cognizant of the kind of charges they face and the likely penalties they would endure if convicted (Bright and Sanneh 2165). On the other hand, courts are legally required to suppress any testimonial information and statements which were acquired in violation of the 6th and 14th amendments to the US Constitution.

Ethics of defending criminals

Defense attorneys have the ethical obligation to represent their clients zealously. These include the ones they believe are the actual perpetrators of criminal activities and hence will be found guilty, and also those whom the attorney presumes to be factually innocent. By staging a vigorous defense, the counsel is essentially protecting the innocent as well as seeking to ensure that the citizens and judges ultimately decide who should be found guilty of a felony. In the absence of such an exercise, culpability would be determined by police officers (Jaffe 1480). This is contrary to the adversarial system of justice in America. It is ethical to defend a criminal, and good defense in any trial is instrumental in safeguarding the rule of law.


The right to legal representation is guaranteed in the Assistance of Counsel Clause of the 6th Amendment to the US Constitution. This is meant to negate an imbalance of power of any kind between a defendant who could be inept and a legally competent prosecution. The defense lawyer advises their client and briefs them on what they should expect at the various stages of the process. They also investigate facts and present zealous legal defense, and this is irrespective of whether they believe the accused is guilty.

Pretrial release and bail reform efforts

A pretrial process refers to the events which occur prior to the actual criminal trial. It is also called the defendant’s arraignment, and it includes various steps. One of the most significant ones is the bond hearing. This is when the court determines if the accused will be released pending their case or if they will remain in jail (Kolber 1151). Judges consider different factors while making their decisions at this stage.

Pretrial release

A pretrial release is where someone is set free as they await their trial. It can either be with or in the absence of a bond, with the latter case being referred to as release on the accused’s own recognizance. The amount set as bail is dependent on the nature of the crime as well as the defendant’s background. Factors such as having a criminal history, risk of missing court dates, or even abscond justice are considered (Carter 441). Those with court dates are expected to recognize the fact that availing themselves takes precedence over anything else (Kolber 1167). In essence, the suspects must be seen as individuals who take the matters before the court with due seriousness.

Pretrial detention

Judges rule in favor of detention if they are not assured that the defendant will respect court orders. This is particularly when they pose physical dangers to the potential witnesses and other community members. In United States v. Salerno (1987), the Supreme Court ruled that the Bail Reform Act of 1984 was not in violation of the Due Process Clause of the 5th Amendment (Supreme Court of the United States, United States v. Salerno). That law allowed the courts in the federal system to detain suspects pending their trials if the prosecution proved that the former was a danger to others (Carter 228-9). Anthony Salerno had been held in jail for the duration of his case, where he was answering charges for the violation of the Racketeer Influenced and Corrupt Organizations Act.

The government was successful in arguing that being a leader in the La Cosa Nostra criminal group made him a threat to law-abiding citizens. It was the opinion of the court that individual liberty in the pretrial period was outweighed by the need to protect the community (Kolber 1159). Nevertheless, the application of the act was only permissible if the offenses were serious enough. Individuals held as such were still entitled to a speedy trial. This is meant to avert a scenario where someone is derailed by unproven criminal accusations for a significant period of time.

Bail reform efforts

Critics argue that bail triggers a two-tiered criminal justice system. Individuals with financial capability are released while a poor accused person remains in jail until their cases are determined. Consequently, the process is partisan, and hence the reason Carter argues that it is in need of reform. The bail procedures vary widely from one jurisdiction to another (198). Depending on the seriousness of the charge, the amount of money imposed could vary from hundreds to millions of dollars. In states like Alaska, there is a temporary halt to the demand for bail, while this is not the case in others like Texas and Florida.

Charging and diversion of charge

A prosecutor is a central player in the criminal justice system. They decide on what issues need to be investigated and how the law enforcement resources will be allocated. Therefore, they influence which matters are handled by the system (Offit 1112). They also determine the behaviors to be charged, the plea bargains to be offered, and they also influence the sentences which are imposed. Examples of scenarios where the prosecutor may decide not to file a case in court are when they determine that the individual acted in self-defense (Colvin and Stenning 23). In the latter scenario, the seriousness of the case will influence the prosecutor’s resolution.


The same conduct may be prosecuted under various laws or statutes. An assault, for instance, may be filed as an aggravated or simple assault and thereby influence the kind of punishment that is imposed. Apparently, the prosecutor is determining whether an issue should be investigated, whether charges should be laid, what the arraignment should be all about, as well as when it should happen (Griffin 87). Prosecutors have the advantage of being able to take their time in building a case. Individuals suspected of dealing with crack cocaine may be tried in federal or state court systems (Offit 1084). As the parties making that determination, the government attorney influences the outcome in a significant manner.

Diversion of charge

When an individual is accused of having committed a criminal offense, they do not have to be charged in a court of law. Indeed, there are legal arrangements that would help avoid a criminal conviction and incarceration. A diversion facilitates an alternative to a normal lawsuit (Griffin 103). The suspect is approached by the prosecution with the suggestion that if they participate in the program, charges will not be filed (Colvin and Stenning 34). It is imperative to consult an attorney because there are scenarios where going to trial would be the best option.

The accused may request for a diversion, and hence the process can be solicited by either of the parties. This is particularly in situations where, with the advice of an attorney, the accused does not find any other reliable option to resolving their legal predicaments. It is a contract signed with the prosecutor, which is later approved by the court. Because it imposes specific terms, one must ensure that they understand what they entail (Offit 1090). In case they are not fulfilled as per the dates stipulated, charges may still be brought before a court of law.

Selection among charges

The State of Ohio has diversion programs that accused adults can exploit. Instead of gambling on the outcome of a full trial, Anthony Dixon ought to have requested the prosecution for this alternative (Court of Appeals of Ohio 3-4). This is because once a penalty has been imposed by the judge, that option is no longer available (Griffin 91). A diversion agreement is an approach that the accused can exploit in order to have the charges dropped. There are, nonetheless, a couple of conditions, and it is imperative to appreciate the different requirements under which this process can be used (Colvin and Stenning 43). Diversion agreements are usually meant for minor crimes and not such offenses as a homicide.

Double jeopardy and joinder

The Double Jeopardy Clause, which is in the 5th Amendment to the Constitution of the US holds that no one can be tried more than once for the same crime. This is important in ensuring that the government does not deny people their liberty in a haphazard manner (Miller and Wright 1044). Without it, the authorities may prosecute an individual severally, and that would cost the accused financial resources, embarrass them publicly, and possibly ruin their careers and social lives (Davis 64). It is common to find people having to live with the stigma until their cases are solved.

Without the Double Jeopardy Clause, people who had once been found innocent would have to constantly fear that they would be charged yet again at a time of a state or federal attorney’s choosing. Carter argues that such agitation has compelled some into alcoholism or even drug addiction (443). Additionally, endless trials might make it easy for the authorities to secure a guilty verdict at some point. That would be unfair, and it would make the criminal justice system incapable of protecting innocent members of society.

Under the Double Jeopardy Clause, the federal government is not prohibited from prosecuting an individual for the same pattern of facts that were used in their case at the state court system. According to (Davis), this seemingly contradictory state of affairs should be resolved as it would lead to abuse of the justice system (98). Once an individual has been acquitted of an accusation, they should be allowed to live their lives as normally as possible unless new and compelling pieces of evidence are uncovered.

The Supreme Court of the US has addressed the Double Jeopardy Clause in a number of instances. The decision in People v. Nutt (2004) was that those who ratified the Constitution wanted the doctrine of double jeopardy to apply in Michigan as it applied in the federal system (Supreme Court of Michigan). Therefore, multiple punishments may not be imposed in cases where only one offense has been committed (Carter 502). This is important as it assures fairness as well as finality for those who have been subjected to the criminal justice process.


Joinder is where additional counts are included on an indictment. For this to happen, they must be based on a similar set of facts and hence happen to be closely related (Miller and Wright 1167). For instance, someone may be required to answer to several allegations which arose in the process of executing a single criminal objective (Davis 78). They are, therefore, merged because they constitute aspects of the same scheme.

The defense motion to have the offenses joined is oftentimes granted. When it is rejected, nonetheless, it is usually because the state attorney convinces the court that they lack sufficient evidence, and hence these cases cannot be tackled sufficiently at the time (Davis 51). Therefore, the prosecution is allowed to start the litigation process of one lawsuit as they refine the others (Miller and Wright 1265). The failure of the defendant to request a joinder is regarded to be a waiver.

Defendants who have been tried for a single offense could seek the dismissal of others who were part of the same episode. Nevertheless, there are exceptions, and these include a scenario where the rejoinder happens to have been denied on a previous occasion (Davis 43). The judge can also order the litigation to proceed if the accused had waived their right or if the offenses are in different court jurisdictions.

Discovery and speedy trial

Discovery refers to information gathering by the state or an opposing attorney. Examples are photographs, receipts, identifications, and any other kind of evidence that is bound to prove the government’s case. The law requires that such materials are not utilized at trial unless they have been shared with the defendant. On the same note, the defense counsel must disclose evidential materials to the prosecution as well (Hamilton 219). In case this is not done, the latter may object to their submission in court and, therefore, they would be of no value to someone being tried.

The three main categories of written discoveries are interrogatories, requests for production of documents, and admissions. Interrogatories are the interrogation questions that are drafted to aid the request for information from an adversary. They, for instance, facilitate the knowledge of the kind of exhibits they plan on presenting to court and their witnesses (Saetveit 485). Among the documents which may be asked for include investigative reports and other kinds of underlying evidence needed for the purpose of proving the case (Hamilton 213). Failure to ask such questions could lead to one side being overwhelmed by an unfair supply by the opposing side during future proceedings.

Attorneys often ask their challengers to either accept or deny certain facts. Admissions are particularly important in facilitating a speedy trial because they eliminate the need to prove some of the arguments in court. Counsels may simply inform the judge that the evidence in question has already been admitted to (Saetveit 502). By using this discovery method, adversaries also gain the awareness of the items refuted and the ones being recognized by the rival.

In People v. Beaman (2006), Alan Beaman argued that his 50-year sentence was anchored on circumstantial evidence, which then raised reasonable doubts (Appellate Court of Illinois). Even though the court noted that the defendant had requested for and gotten the materials that were used to try and convict him, the application for post-conviction relief was allowed (Saetveit 492). While the prosecution did prove prevent evidence demonstrating motive and an opportunity, it was still probable that someone else could have committed the crime (Hamilton 225). Ultimately, it was ruled that the conviction ought to be reversed.

Speedy trial

Individuals accused of crimes have the right to a speedy as well as impartial trial. This is federally mandated through the 6th Amendment to the US Constitution. The concept helps in preventing a scenario where someone is forced to wait for the completion of their cases for a significant period of time (Saetveit 506). For instance, there have been situations where people remained in remand for years and later acquitted. Every jurisdiction is different, and some do not impose a set deadline within which cases must be filed.

Where such conditions exist, the failure by the prosecutor to abide by them could lead to the dismissal of the charges. Trials for misdemeanors are expected to start a lot quicker than those pertaining to felonies (Saetveit 499). In Illinois, for instance, filing for the former must take place within 90 days, while those on the latter ought to be brought in 180 days (Hamilton 221). The defendant may, nevertheless, waive their right to a speedy trial if they believe that they need extra time to prepare their responses.

Pleas and bargains

Plea bargaining is the process where a defendant agrees to waive their constitutional right to trial by a jury. In exchange for confessing to a lesser charge, the prosecutor promises not to file for the serious one where the accused would be risking a stiff punishment (Work 462). For instance, someone accused of having committed homicide may accept responsibility for manslaughter rather than having the state attorney holding a full trial (Berger 193). Most convictions are negotiated, and this shows that the antagonists consider the process to be an effective way of resolving legal disputes.

During plea bargaining, several aspects of the case can be negotiated. The parties may, for example, discuss the charge, a possible sentence, and/or a fact(s) (Berger 183). Based on the ruling in Missouri v. Frye (2012), defense attorneys are obliged to communicate any proposal by the prosecution with their clients (Supreme Court of the United States, Missouri v. Frye). This is because, ultimately, it is the accused who is on trial, and hence their views on any development must always be sought.

In Missouri v. Frye, the counsel for Galin E. Frye had failed to inform him of two offers made by the state. If he pleaded guilty to a felony, he would have been incarcerated for just 10 days (Scott-Hayward and Fradella 151). By accepting responsibility for a misdemeanor, the accused would have served a 90-days sentence (Berger 161). He ended up being sentenced to a three-year term, an outcome which the Supreme Court determined to be unfair and hence ordered that the case be remanded.

The significance of Missouri v. Frye is that defendants are not only entitled to representation by a counsel but also to effective legal assistance as well. The accused was deemed to have been prejudiced by having to plead to a felony rather than to a misdemeanor as per the state’s offer, whose information was withheld by his attorney (Work 471). His 6th and 14th amendment rights had been violated, and the lawyer failed to honor their fiduciary duty by ignoring a proposal that was favorable to their client.

Judges and prosecutors may opt for plea bargaining instead of conducting full trials. This helps in reducing the caseload, and the state saves a significant amount of resources in the process (Scott-Hayward and Fradella 131). On their part, defendants benefit by accepting the negotiated deals, although it is imperative to be mindful of the drawbacks. For example, while one could benefit from a reduced charge and a lighter sentence, they would have given up the opportunity to get acquitted (Work 461). This is why it is important to discuss such proposals with an attorney.

The main reason defendants accept plea bargains is because of the promise of lighter sentences. Yet another advantage is that one could avoid a felony record which could reduce their employment opportunities (Berger 179). Others appreciate the fact that their cases are concluded in a relatively shorter period of time than it would happen with a full-court trial (Scott-Hayward and Fradella 157). Additionally, they do not have to keep worrying about the uncertain outcomes.

Decision-makers at trial: judge and jury

The trial process is based on several rules, and these are meant to make the proceedings fair. Indeed, the criminal justice system is supposed to be predictable and consistent. This is the only way the citizenry can have confidence in the decisions made in court (Jolly 736). A judge has an important responsibility as they referee who only rules on the issues pertaining to law.

The US Constitution requires the accused to be tried by a jury. In most scenarios where cases go to full trial, therefore, judges merely preside over the activities happening in the courtrooms (Jefferson 229). Ordinary and average citizens make the decisions pertaining to the facts of the case (Jolly 719). The idea of trying the accused by juries of their peers was inherited by the American system from other jurisdictions where it had worked in an effective manner.

Jury trials

The 5th Amendment requires that a group of ordinary citizens agree that there is enough evidence for serious criminal offenses prior to filing charges against a suspect. This team is referred to as a grand jury, and it is usually constituted of between 16 and 23 members (Jolly 742). This is because once charges are brought against the accused, their lives are immediately disrupted (Jefferson 234). It is, therefore, a safeguard to prevent the state attorneys from recklessly prosecuting the citizens.

There are other jurors who are asked to dedicate their time in deciding criminal liability during a normal court trial. They form what is referred to as trial or petit jury (Jefferson 246). Their responsibility is to make sure that anyone who is ultimately condemned to imprisonment had their case decided by ordinary a number of ordinary community members. They must agree on the facts about the case as they are presented by the state and defense attorneys (Jolly 723). The accused may, nonetheless, waive their right to trial by juries and have their cases determined by a judge exclusively.

After it is determined that the trial will be conducted by a jury, a group of ordinary but qualified citizens is invited into the courtroom where the defendant will be tried. The attorneys on both sides, as well as the judge, seek to determine the suitability of each of the individuals to serve in this role (Jolly 724). This involves asking them questions in a process referred to as voir dire (Jefferson 237). Most importantly, probing is meant to detect and eliminate any potential bias.

The case of Filmore v. State (2003)

In Filmore v. State (2003), Keith C. Filmore had indicated that some of the jurors might be prejudiced since he was a Black man accused of hurting White females. He wanted the voir dire examination to especially ask the potential jurors how they felt when presented with a case of some of his background committing criminal offenses against others of different racial backgrounds (Supreme Court of Delaware). The appeal court ruled that there was no abuse of discretion by the trial judge.

Because the jurors play a significant role in determining if the accused will be denied their liberty or not, the parties to the case have the right to examine them carefully. The examination must, nevertheless, be reasonable, unlike the kind of harassing probing that Keith C. Filmore was proposing (Jefferson 231-2). The purpose of a trial is to uncover the circumstances under which the alleged crime occurred (Jolly 745). It is about securing a fair administration of justice, and juries are meant to step further in realizing this aim.

Witness and proof

The matters of proof and witness are governed by the law (or rules) of evidence. These are the principles that govern how facts are evaluated in legal proceedings (Price and Dahl 68). They determine what kind of materials the trier of truth must (or must not) consider in their endeavor to reach the decision (Chlevickaite and Hola 681). The party responsible for this exercise could be a judge or jurors, depending on whether the process is a bench or jury trial.

There are important rules which govern the admissibility of evidence concern authentication, relevance, hearsay, privileges, opinions, expert testimony, and witnesses (Price and Dahl 71). The trier(s) must determine to what extent each of these elements should influence their decision. For instance, they should consider factors like adequacy and quality (Chlevickaite and Hola 689). The way the burden of proof is judged is determined by the situation at hand.

Any witness who testifies in a court of law is expected credible. While determining the believability of the witness, the jury assesses their demeanor and the level of frankness. The level of intelligence demonstrated by those giving testimony during the trial is also considered (Price and Dahl 64). An individual’s interest in the case may influence their recollection of the events surrounding the crime.

Witness credibility

Credibility is not determined by the number of witnesses called upon to testify. The issue is which account should be believed and which one should be dismissed. Even so, the judge must still rule if the defendant’s right to confront their accusers, as is guaranteed in the 6th Amendment, is respected (Price and Dahl 73). In Romero V. State (2005), Cesar Hiran Vasquez, who was the star witness for the prosecution, honored the court summons while disguised (Court of Criminal Appeals of Texas). The court ruled that, indeed, the testimony was delivered in a manner that was prejudiced against Israel G. Romero.

It was the opinion of the majority that two important elements of the right of confrontation were compromised. Cesar Hiran Vasquez had appeared in a manner that undermined his demeanor and presence. This is in spite of the fact that he had not sought anonymity and was testifying under oath (Chlevickaite and Hola 695). These safeguards are taken to prevent a scenario where a witness misidentifies an accused and possibly contribute to having an innocent person imprisoned.

There are other routes that are used to discredit a witness, besides how Romero sought to achieve this goal. The accused may, for instance, point out inconsistencies in the statements an accuser has made. The defendant may call and cross-examine other people in a bid to impeach the accounts given by the first one (Price and Dahl 66). The endeavor is to convince the jury to be suspicious about the allegations leveled against the individual under trial.

A credible witness is one whose testimony is most probably true, and accuracy, in this case, is determined by the individual’s training, knowledge, experience, as well as how forthright and honest they appear to be. There is a level of subjectivity involved, and this is because the demeanor of the person making statements has a significant influence on the decisions made by the trier of facts (Chlevickaite and Hola 684). This is why it is important to appear as competent, respectable, and as having personal knowledge of the accounts being described (Price and Dahl 67). Any indication of dishonesty is likely to result in the impeachment of the witness in question.


Sentencing is significantly influenced by a set of guidelines that have been in place since the late 1980s. Although they are usually followed at trial, they are non-binding. Whenever a judge chooses to depart from them, nevertheless, they are required to explain what they believe warrants a decreased or an increased punishment for the particular convict (Maratea 97). The precise calibration of these recommendations is based on factors relating to the harm caused by the defendant’s criminal actions as well as their subjective guilt.

The benefit of following the sentencing guidelines is that in the case of an appeal, the judgment is often upheld. In McCleskey v. Kemp (1987), the death penalty that had been imposed on Warren McCleskey was upheld (Supreme Court of the United States, McCleskey v. Kemp). The plaintiff had argued that the ruling at trial had a racial impact as it further increased the proportion of Blacks being executed in Georgia (Maratea 105). The Supreme Court of the US ruled that because this was not the aim that had was being sought during the initial lawsuit, the complainant’s argument had no merit.

Had sentencing guidelines been ignored by the trial court, it is likely that the sentence against Warren McCleskey would have been overturned on appeal. Nonetheless, the plaintiff had been convicted of two felony counts, with each warranting the imposition of the death penalty (Keys and Maratea 61). He had committed murder as he engaged in an armed robbery, and he had murdered an officer of the law as the latter was performing their duties (Maratea 199). Furthermore, no mitigating circumstances were provided, and hence the jury found it appropriate to impose the death penalty.

Need for sentencing guidelines

While putting in place the sentencing guidelines, the US Congress was aiming at establishing consistency and uniformity while imposing penalties in the federal legal system. State courts across the country do follow these recommendations as well, and this is done in order to avoid unnecessary contradictions in American jurisprudence (Maratea 103). Besides, if criminal offenses are similar and their backgrounds are alike, it would be unfair to condemn one convict to a prison term that is much longer than the one imposed on another.

When the sentencing guidelines were established, they were mandatory and hence were to be applied without exception. In United States v. Booker (2005), however, the Supreme Court ruled that guidelines ought to be advisory as the recommendations are facts that were not found by jurors (Maratea 57). Making them compulsory was a violation of the 6th Amendment’s right to trial by jury (Keys and Maratea 176). The actual sentence is determined by the facts of a particular case, and because they are unique in every scenario, punishments vary as well.

Steps in sentencing

There are several steps in applying the sentencing guideline when handling a particular case. One must first determine the base offense level and then consider the specific adjustments. The third step is the calculation of the accused’s criminal history. Ultimately, the judge finds the range from which they should choose the appropriate punishment from (Maratea 113). The way this discretion is exercise can be subject to challenge during the appeal. It is also noteworthy that there have been cases where attorneys have succeeded in convincing the judge that the punishment should be below what is recommended (Keys and Maratea 212). This has worked as the guidelines are nowadays considered to be advisory.

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