Counsel: Role of Counsel

Why should the role of defense counsel exist in the first place? If this question seems peculiar, it is only because the moral assumptions built into the defender's role are taken for granted in modern societies. Chief among these assumptions is a particular horror at the prospect of condemning the innocent—a horror that goes back as far as the Hebrew Bible (Genesis 18:29–32). A society that placed higher importance on convicting the guilty than on acquitting the innocent would eliminate defense counsel from its criminal justice system. Modern societies instead profess belief in the old slogan that it is better that ten guilty criminals escape than that one innocent person be wrongfully convicted.

The reasons for this repugnance at convicting the innocent are straightforward. First, criminal law is usually enforced through corporal punishment—imprisonment, and in some legal systems flogging, mutilation, or even death. Second, criminal conviction carries with it the stigma of moral condemnation. Third, criminal litigation pits the defendant against the state: cases bear names like People v. X, the Crown v. Y, and State v. Z. Within liberal polities, at any rate, the danger that state power will be abused by those who wield it is thought to warrant special precautions—not just the protection of individual rights against the state, but in some cases the overprotection of those rights. Thus, liberal polities always grant the presumption of innocence, so that the state always bears the burden of proof in criminal cases. The special horror at convicting the innocent explains why in many societies criminal conviction requires proof beyond a reasonable doubt rather than some lesser standard. And prominent among the safeguards against wrongful conviction is the right to defense counsel.

A more subtle moral assumption behind the defender's role is this: any decent legal system must presume that the accused person has a good-faith story to tell, a defense to offer. A society which respects the human dignity of its inhabitants withholds its verdict in abeyance until the defendant's side of the story has been heard—even in an open-and-shut case such as the knife-point rapist caught in the very act (Donagan, pp. 128–33). Once society presumes that defendants have good-faith stories to tell, fairness requires that the ability of defendants to tell their stories should not be undercut merely because they may be uneducated, ignorant of the law, poor public speakers, or unintelligent. They must be provided an advocate—a "mouthpiece" in a nonpejorative sense of the word—who can help them tell their stories, just as non-native speakers must be provided with translators at their trials.

Of course, nothing in these arguments implies that the defender must be a partisan advocate. Perhaps the prosecutor could be required to present the accused's side of the story along with the state's version; or perhaps the judge could assume the burden of defense. Experience, however, teaches that systems designed along these lines fail. For centuries, English felony defendants were prohibited from employing defense counsel, on the theory that the court would look out for the defendant's interests and that partisan defense counsel would merely muddy the waters. Instead of safeguarding defendants, however, judges often joined with prosecutors in reviling defendants to their faces, and this was one reason for the Prisoners' Counsel Bill of 1836, which established the right to defense counsel (Mellinkoff ). Likewise, American prosecutors are required by their ethics codes to seek justice, not victory—but before the right to counsel was granted in 1963, defenderless trials often led to convictions based on evidence so flimsy that any competent defender would have demolished it; and prosecutors routinely sought victory without worrying overmuch about justice. It seems, then, that to be effective the defender's loyalty must be undivided, just as Lord Brougham suggested; and, if it is undivided, the moral ambiguities of the role emerge fully.