By Jordan W. Charness
A part of my practice at my law firm is made up of representing people who have run into difficulties with the police or other law enforcement agencies. This specialty is most commonly called criminal law which is a bit of a misnomer in that the people we represent are only accused of a crime and are not actually criminals until convicted by a judge in a court of law.
As you can imagine, a good chunk of the criminal law that I practice has to do with automobile related offenses like driving under the influence of alcohol or drugs, dangerous driving, speeding, and all the other driving offenses. I’m often asked how I can defend criminals or as my wife sarcastically likes to put it “put another drunk driver back on the road.”
The fact of the matter is that the role of the criminal defense attorney is to participate in the justice system in order to make sure that the innocent are not wrongfully convicted and that the guilty are properly punished. As countless TV programs have shown there are many facets to the criminal justice system including the police, the investigators, the prosecuting attorneys, the defense attorneys, and the judges and support staff. All of these combine to make up the drama that has real consequences for the major player in the story — the accused.
When you take a look at all the resources that are devoted to the prosecution side of the story you realize that the defense lawyer and his or her team are the only ones charged with protecting the rights of the accused. Although both sides have an obligation to make sure that there are no charter of rights abuses, the checks and balances system makes it the job of the defense attorney to bring to the court’s attention any time where an accused’s legal rights may have been violated.
The police have the expertise, the investigators, the CSI’s and all the crown prosecutors and their resources to help build a case to prove that an accused is guilty of the crime he or she is charged with. In most cases they are right and the charges inevitably lead to the guilty party being punished for his or her crimes.
On the other hand, in order to make sure that none of this investigative power including the intimidation effect that comes with guns and uniforms is misused, the Constitution provides every accused with the rights guaranteed by the Charter of Rights and Freedoms. First and foremost of these rights, is the right to consult with a defense lawyer as soon as you have been arrested. In most cases when you call a lawyer from the police lockup you will be advised by the lawyer not to say anything or sign anything aside from a promise to appear in court. This is to ensure that you will not be intimidated into confessing to something that you did not do. Being arrested puts you into a serious state of stress and you might conceivably say what ever your investigators want you to just to ease the situation. This type of confession could be held against you even though it was untrue.
The theory is that if the lawyer has told you that you have a legal right to stay silent and to refrain from signing a statement you will be better equipped to insist on your legal right of silence.
Similarly you have a charter right to be left alone. This means that the police must have reasonable grounds in order to stop you, search you or your property and seize evidence. In many cases this would include a warrant allowing them to do so. If they find an illegal substance during an illegal search of your car for instance, the arrest may be thrown out because your charter rights were violated. Although this may lead to the occasional guilty person going free, it makes sure that the rest of us are not unreasonably subjected to a search by the police.
In addition to making sure that our clients legal rights are maintained a defense lawyer also does his or her best to make sure that innocent parties are not wrongfully convicted. Although rare, it does happen that the police and the investigators accuse the wrong person. A defense lawyer will bring to the attention of the court any discrepancies in the prosecution’s case in order to raise a reasonable doubt in the judges’ mind that the accused committed the offense.
Lastly a defense lawyer is there to make sure that even if you are guilty you are given a reasonable sentence that is in line with current jurisprudence and the state of the law. There is a large amount of latitude in the sentences that can be handed out and the defense lawyer will often work with the crown and the courts to make sure that the punishment really does fit the crime.
This article is of a general nature and may not be applicable in all situations and jurisdictions. If you have a legal problem or need legal advice please consult a lawyer.