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INTRODUCTION

No man should be condemned unheard. While the general purpose of criminal procedure is to
provide a mechanism for the administration of criminal law, its core object is to ensure for the
accused a full and fair trial in accordance with the principles of natural justice. Therefore
trial procedure is a very pivotal part of any criminal procedure. The criminal justice system is
viewed as a three-part system consisting of the judge and jury, the prosecutor, and the defence
lawyer. Each part of this system has a specific role. The role of the judge and jury is to render an
impartial decision based solely on the facts presented and the laws applicable to the charged
offense. In order to decide impartially, the judge and jury must be able to hear arguments from
both sides. The prosecutor's role is to argue the side of the state that seeks to prove the
defendant's guilt. The defence lawyer's role is to argue on behalf of the defendant. The defendant
has no burden of proof. That is, the defendant need not prove his innocence. It is enough simply
to point out ways in which the state has not established guilt.1

HISTORY
Right to appear through Defence counsel existed in England for over 3 countries. During
Nuremburg Trials, Nazi War Criminals responsible for million killings were also defended by
lawyers.
In Britain, the history of organized efforts on part of state to provide legal services to poor and
needy dates back to 1944. When Lord Chancellor Vismount Simon appointed a committee to
inquire about facilities existing in England and Wales for giving legal advice to poor. In United
States of America, original constitution had no provision of Defence Counsel but was added by
5th and 6th Amendment.
http://www.lawyersclubindia.com/articles/Role-of-defence-lawyer-in-criminalproceeding-3723.asp
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WHAT IS CRIMINAL DEFENCE LAWYER?


A defense attorney is a lawyer representing the defendant in a criminal trial. Most defense
attorneys specialize in criminal defense, and some further narrow their practice to specific types
of criminal defense. A defense attorney can work as part of a large or small law firm, or a private
practice. Like all attorneys, a defense attorney is a highly educated professional and a member of
the state bar.2
A criminal defense lawyer is hired to defend both individuals and corporations, called defendants
in legal settings, who have been arrested as suspects for unlawful activities. This type of lawyer
may also be known as a defense attorney or simply as a criminal lawyer. In the United States,
they are responsible for representing those who have been accused of criminal activities in court,
where a judge and jury will then decide if the defendant is either guilty or innocent. Criminal
defense lawyers have a deep knowledge about the law and how the court system works. They
have attended law school, and usually have several years of experience. A criminal defense
lawyer can either be hired by a defendant or appointed by the court if the defendant cannot afford
an attorney on his or her own. 3
A criminal defense lawyer works with the defendant to develop the best way to minimize the
consequences of any unlawful activity the client may have been involved in. If the client is
innocent, it is the job of the criminal defense lawyer to prove that. . A criminal defense lawyer
may also help to customize a sentence for the defendant that will help to keep them out of future
trouble -- most often the case in juvenile or family court cases. A good criminal defense lawyer
knows the ins and outs of the local court circuit. He or she should know which tactics work for
which judges when trying to reduce sentences or even get the case thrown out. A defense lawyer
also knows who has the power to settle cases outside of the courtroom. Defense attorneys know
how to find little-known laws that can help their client, and are able to use any lawful means

2 Ibid
3 https://www.nacdl.org/champion.aspx?id=24996
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necessary to prove their client innocent, or at least less guilty of the crimes the client is being
charged with. 4
The lawyer may work on a local level, only taking low-profile cases seen in town, city, or small
county court rooms. Some lawyers may work on larger regional or state cases. Top lawyers may
work federal court cases. There are also international criminal defense lawyers, responsible for
working on extradition and illegal immigration cases. Other international cases may include
international crime circles or internet-based criminal activities.
The adversary system of criminal trial, which we have adopted, assumes that the State using its
investigative resources and employing a competent prosecutor would prosecute the accused,
who, in turn, will employ equally competent defence counsel to challenge the evidence of the
prosecution. Therefore, in India, both The Constitution and the Code of Criminal Procedure
confer on the accused person a right to consult and to be defended by a legal practitioner of his
choice.5
The provisions are discussed in the later part of the project.

INTERNATIONAL RECOGNITION
Certain International Documents and Authorities confer such rights on the accused person
keeping in view the Principle of Natural Justice. Few of them are discussed as followsI.

ICCPR 1966, Article 14 states or guarantees the following rights to the accused in a
Criminal Trial:
To communicate with the lawyer of his own choice and have enough time to
prepare for his defence.

4 Ibid 3
5 Chandrasekharan Pillai, R.V. Kelkars on Criminal Procedure, 6th Edition, Eastern Book

Company.
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II.

To defend himself in court and to be informed of his right to legal counsel.


European Convention on Human Rights, Article 6 mentions that anyone who has been
accused of an offence has the right to defend himself or to obtain a lawyer. If he does not
have enough money to pay for a legal assistance then the State should provide this

III.

service in the interest of Justice.


American Convention on Human Rights, Article 8(2) states that during trial accused has
the right to be defended or have a lawyer and he has a right to communicate freely and

IV.

privately with his lawyer.


Canadian Charter of Rights and Freedom, Section 10 includes that everyone has right on
arrest or detention to retain and instruct counsel without delay and to be informed of that

V.

right.
In UK, The Police and Criminal Evidence Act, 1984, Article 58 gives the defendant the
right to be informed of their legal right where they are detained including the right to

VI.

legal counsel.
In US, the 6th Amendment states that in all criminal prosecutions, the accused shall enjoy
the right to have the assistance of a counsel for his defence. In the US court case of
POWELL v. ALABAMA6, the Court pointed out that state judges have inherent authority
to appoint counsel even in the absence of an authorizing statute. Judges have a duty to
protect the due process rights of criminal defendants, and failure to provide them with
counsel violates those guarantees.

DEFENCE COUNSELS IN INDIA


6 287 U.S. 45 (1932)
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48th Report of The Law Commission has stated that the accused must be informed of his right to
consult a legal practitioner of his choice and the accused must also be given an opportunity to
consult such a practitioner before making a confession. It also recognize that the right to Counsel
is an essential ingredient of a Criminal Trial.
As discussed above, both The Constitution and the Code of Criminal Procedure confer on the
accused person a right to consult and to be defended by a legal practitioner of his choice.7

PROVISIONS OF THE CODE OF CRMINIAL PROCEDURE, 1973


The adversary system of criminal trial, which we have adopted, states that the state using its
investigative resources and employing a competent prosecutor to prosecute the accused, will
employ an equally competent defense counsel to challenge the prosecution. Therefore, both the
constitution of India and the code of criminal procedure on the accused a right to consult and to
be defended by a legal practitioner of his choice. According to Section 303, any person accused
of an offence before a Criminal Court, or against whom proceedings are instituted under this
Code, may of right be defended by a pleader of his choice. Basically, Section 303 of the Code
provides that after initiating any proceeding against the accused, the accused should be defended
by a lawyer of his choice. 8
The right to counsel would, however, be of no use if the accused due to his poverty or indigent
conditions has no means to engage a counsel for his defence. The indigent accused obviously
stands the risk of denial of a fair trial when he does not have equal access to the legal services
available to the opposite side. To an appreciable extent the Code has attempted to find a solution
to this problem.
For this, Section 304 requires the court under such circumstances to arrange lawyer for his
defense at the States expenses. The section further empowers the State Government to extend
the application of this provision in relation to any class of trials before other Courts in the State.
7 Ibid 5, p.29
8 Ibid 1
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CONSTITUTIONAL RECOGNITION
Further the Supreme Court through a process of constitutionalisation has held that the
fundamental right to live implicitly requires the State to make provisions for grant of free legal
services to an accused who is unable to engage a lawyer in account of reasons such as poverty,
indigence or incommunicado situation. The only qualification would be that the offence charged
against the accused is such that on conviction it would result in a sentence of imprisonment and
is of such nature that the circumstances of the case and the needs of social justice require that he
should be given free legal representation.9
In case of KHATRI v. STATE OF BIHAR10, it was held that the Court before whom an accused
appears shall inform him that if he is unable to engage the services of a lawyer due to poverty
then he can avail free legal services at the cost of the State.
The accuseds right to have a lawyer of his choice is also a constitutional right under Article 22.
Article 39-A also provides free legal aid, because as per this directive principles this is the duty
of the state to provide free legal aid. The Supreme Court in case of SUKH DAS v. UT OF
ARUNACHAL PRADESH11, held that conviction of the accused in a trial in which he was not
provided any defense lawyer would be set aside as being violative of Article 21 of the
constitution.

9 Ibid 5, p.29
10 (1981) 1 SCC 627
11 (1986) 2 SCC 401
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ROLE AND RESPONSIBILITY OF DEFENCE COUNSEL


Unlike the other functionaries under the Code, such as the police and the prosecutors, the
advocates and the pleaders engaged in the task of defending the accused persons are not in the
regular employment of the State and in most of the cases they receive remuneration for their
services from the accused persons. Nevertheless they are also the officers of the court and are
quite indispensable if a fair trial is to be given to an accused person.
A criminal defense lawyer is one such person who will offer its service to those people that are
charged under these kinds of crimes. Such qualified persons will first start off their services by
having a conversation with the accused party. From such communication they will try to
investigate on various points and will come to know the exact details of the event. These law
protecting people are always high in demand as for the reason they are the one who fight for the
justice on behalf of accused.
A defense attorney is a lawyer representing the defendant in a criminal trial. Most defense
attorneys specialize in criminal defense, and some further narrow their practice to specific types
of criminal defense. A defense attorney can work as part of a large or small law firm, or a private
practice. Like all attorneys, a defense attorney is a highly educated professional and a member of
the state bar.
The defense attorney's purpose is to represent his client's best interests. The responsibilities this
might include range from gathering evidence and presenting it in court, to negotiating bail, to
managing media attention through press releases or conferences, to plea bargaining. Ideally, the
defense attorney gets the client acquitted or has the charges against her dropped, but this is
simply not realistic in the majority of criminal cases.12
If a case advances to a trial, the most important goal of the defense attorney is to create a
reasonable doubt in the minds of the jurors. This can be done in a variety of ways, from the
introduction of exculpatory evidence, to the discrediting of adverse witnesses. The defense
attorney is not limited in the sorts of tactics, as long as they are ethical and legal, that he can
undertake to convince a jury that his client might not be guilty. The defense attorney himself
12 Ibid 1
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should appear credible and professional in a criminal case and should not be underestimated. Not
only does he need to be skilled in criminal pleadings, quickly and effectively draft motions, to
examine evidence, and to request search warrants if necessary, interviewing clients, witnesses to
the crime and the law enforcement officers who initiated the arrest.
Information given to a defense attorney by his client is generally confidential but when there is
national security interest at stake they would try to extract sensitive information from their
clients and to disclose them. The job of a defence lawyer is to present all evidence to rebut the
prosecutor's arguments and challenge all questionable assertions of facts by the prosecutor to
ensure that the high burden of proof is met. The defense lawyer challenges procedural errors and
may seek to have charges dismissed because of unreliable evidence or testimony. The defense
lawyer informs the defendant of his rights and defends those rights to ensure they have not been
violated.13

The Defense Lawyer as the First Line of Defense for Defendant When Facing the StateIt is important for a defendant to obtain the help of a defense lawyer as early as possible. There
are many actions a defense lawyer can take to protect and aid a defendant in the early stages that
may not be possible as the case progresses. The defense lawyer can inform the defendant of his
rights at the outset (such as the right to remain silent) so that the defendant is aware of them and
can benefit from them. The defense lawyer can seek the temporary release of the defendant
through bail, allowing the defendant to better assist in the preparation of a defense. The defense
lawyer can negotiate with the prosecutor to have charges reduced or even dropped.
In addition, the defense lawyer is able to counsel the defendant on different strategies and
arguments that can be used in the case as well as the benefits and drawbacks for each one. The
defense lawyer works with the defendant and other witnesses to understand the defendant's

13HTTP://GUNSANDBUTTER.BLOGSPOT.IN/2012/09/THE-ROLE-OF-CRIMINAL-DEFENSE-LAWYER-IN.HTML

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version of events and to determine an appropriate defense (e.g., alibi, self-defense, and
misidentification).
The defense lawyer can provide advice on what plea to enter, whether to accept a plea
agreement, whether to waive a jury trial, and whether the defendant should testify on his own
behalf. The defense lawyer can determine which witnesses to call and how they should be
examined. The defense lawyer can determine which potential jurors might be biased against the
defendant and seek to remove them from the jury panel.14

14 Ibid 1
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IMPORTANT ROLE AND RESPONSIBILITIES OF CRIMINAL


ATTORNEY.
Gathering information about the case is one of the major tasks performed by criminal defense
lawyer. He gathers information from all witnesses present at the time when criminal act was
carried out. He understands the case properly and puts forward its negative and positive aspects
in front of clients. In some of the cases, he also sits with the prosecutor for reducing the charges
faced by their clients to some extent.
A criminal defense attorney looks after all aspects of a case. In some cases, he also hires
investigators for collecting evidences and proving his clients innocent. Criminal lawyers play an
important role of protecting an individual's rights. Defense attorney makes most of the court
appearances for his clients which mean they need not to leave their important task for making an
appearance in the court. Not only this, he keeps his clients up to date regarding what has
happened in all those court appearances and that too on a regular basis.
He makes his clients aware of the possible punishments for their crimes. Moreover, He also
explains his methods and policies to help clients get a fair conviction. Criminal defense attorney
deals with criminal charges like impaired driving, marijuana grow operations, driving while
prohibited, dangerous driving, administrative driving prohibitions and all other driving offences,
theft, fraud, shoplifting, communicating for the purpose of prostitution , assault such as spousal
or domestic assault etc. The right to counsel protects the right of accused people to remain silent
and not incriminate themselves, the right to be secure against unreasonable search and seizure,
the right to make full answer and defence, and the right to a fair trial. The right to counsel is the
means by which the innocent are protected from wrongful conviction. 15
Defence counsel ensure that full disclosure is provided by the Crown; that all evidence bearing
on the accused's case is disclosed or produced; that all legal issues bearing on the accused's case
are fully explored and properly adjudicated; that, in particular, all evidence tendered by the
Crown was collected in accordance with constitutional standards; that all evidence supporting the
accused's case is tendered at trial; that Crown witnesses are cross-examined and weaknesses in
the Crown case are explored; that an accused is convicted only when the Crown has satisfied its
15 Ibid 1
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constitutional burden of proving guilt beyond a reasonable doubt, on the basis of all of the
evidence; that, where an accused is convicted, the penalty is proportionate to the gravity of the
offence and to the degree of culpability of the accused; that all options are explored for
rehabilitation and reintegration of the accused, consistent with community safety; and that
apparent errors made in trials are properly reviewed on appeal.
Defence counsel is professionally bound to advance all arguments ethically permitted on behalf
of the accused, to ensure that the accused is convicted only if the government can properly
establish guilt.

LEGAL AID SCHEMES


At present there are several schemes under which an indigent accused could get legal aid. The
legal aid schemes of the State Governments, Bar Associations, Legal Aid and Advice Board,
Supreme Court Senior Advocates Free Legal Aid Society, etc., are in point. The Legal Services
Authorities Act, 1987 also provides for legal aid to the needy. Judiciary has been given important
role in implementing the provisions of this legislation.16

CASE STUDIES16 Ibid 5, p.29


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MIRANDA v. ARIZONA17 A landmark judgment of US Supreme Court whereby the


Supreme Court recognizes the constitutional guarantee against self-incrimination. As a
result of this case, anyone in police custody must be informed of the following before

being questioned :a. Right to remain silent


b. Anything you say will be used against you in the Court of Law
c. You have a right to Attorney Counsel
d. If you cant afford an attorney, one will be appointed for you at State expenses.
JOHN RICHARD v. R. HAMLEY18 John was sentenced 90 days jail for carrying a
concealed weapon, but was never represented by a lawyer. The conviction was
challenged. Supreme Court overturned conviction and held that a defendant may not be

actually imprisoned unless represented by a Counsel.


S.J.NELLORE v. I.R.REDDY19 It was held that when an accused refuses to be
defended by a Counsel then he may injure himself and such injury cannot be said to be
the result of non-observance of the procedure established by Law and it is also not

violative of Article 21 of The Indian Constitution.


R.M.WASAWA v. STATE OF GUJARAT20 it was held that particular attention should
be paid to appoint competent advocates, who are able to handle complex cases, not

merely raw entrants at Bar.


RANJAN DWIVEDI v. UNION OF INDIA21 Supreme Court said that legal aid
panels should be made. Moreover, it said that only trained lawyers should be appointed in

these panels.
RAM AWADH v. STATE OF UTTAR PRADESH22 it was held that requirement of
providing Counsel to an accused is not an empty formality. A counsel so appointed

17 384 US 436
18 1972 US SC
19 1972 Criminal Law Journal
20 AIR 1974 SC
21 1983 SC
22 1999 CLJ
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should be competent enough to safeguard the interest of an accused in an effective

manner.
MOHD. SUKUR ALI v. STATE OF ASSAM23 it was held that the criminal cases
whether trial or appeal or provision should not be against the accused in absence of its
Counsel. If Counsel does not appear deliberately or due to negligence, then also the court
should not decide cases against the accused. The court shall appoint Amicus Curie to

defend the accused.


MOHD. HUSSAIN ZULFIKAR ALI v. STATE OF DELHI24 It was held that the
purpose of providing competent legal aid to undefended and unrepresented accused
person is to see that accused gets free, fair, just and reasonable trial.

CONCLUSION

23 2011 CLJ
24 2012 SC
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Till now we have in turn analyzed the principle behind the strong and inevitable role of criminal
defense lawyer, which stems from the reluctance of modern criminal law maxims. The criminal
defense lawyer are assigned by our justice system for a variety of tasks. They explain to their
clients what is happening and make sure that all the clients are acknowledged of their rights
provided by law and aware of what is happening. The defense counsel protects all those rights
which are afforded to every citizen by law. The lawyer challenge the prosecution case, conduct
and occasion and take over the prosecution case, call, examine any witness in court and makes
every possible effort to minimize the damages to defendant.
We often take these protections for granted, or that do little but allow criminals to escape justice.
It is easy, and often tends to dismiss defense lawyers (and, for that matter, all lawyers) whose
only function is to confuse juries and confound courts. And sometimes, defending people who
are clearly guilty, it may seem that defense lawyers are a needless extravagance. But just as
crimes come in a variety of shapes and sizes, criminals are often indistinguishable from the
ordinary citizen, in fact some of us only come to realize when we find ourselves seated at the
defendant's table, with fingers pointing at us. It is then that we realize just how critical a vigorous
and independent defense bar is to a free society--allowing ordinary citizens to challenge the
actions of their own government.
Defense lawyer is often misunderstood to make every ones life difficult and his job as a
safeguard against tyranny. In fact the defense lawyers role and job is very critical. Imagine what
would happen if government decide whom to jail without their actions to test of law. Freedom of
all of us will be in the hand of government bureaucrats-people. The law exists to safeguard our
life and liberty but without the means and functionaries to challenge the actions of our own
government, there will be a little protection for common citizens.
Among the first casualties of Nazi Germany and Stalinist Russia was the independence of the
courts and the legal profession. There was nothing to protect common people against the
unbridled assertion of governmental power--no matter how misguided, petty, or malevolent it
might prove to be. But it is the rare government that will attack its own citizens directly. Thus
criminal defense lawyer has a prominent role to play in our criminal justice system.
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