September 11, 2013 By Wallin & Klarich

The most common question criminal defense lawyers get asked is, “Why defend the guilty?” At Wallin & Klarich, we believe in standing up for the rights of every client we come to represent.

Committed and Courageous Criminal Defense Lawyers

Often times, the critical role of criminal defense lawyers in our criminal justice system is misunderstood. It is important to understand that criminal defense lawyers are never required to prove their clients are innocent, or even not guilty. The role of the defense attorney in the criminal justice system is not to make decisions of guilt, but rather to assist the judge and jury in making that determination.

Criminal defense lawyers ensure that the constitutional rights of the accused are protected and that police, prosecutors and judges comply with the law. A person accused of a crime is guaranteed certain rights to ensure a fair process that produces a just outcome. Some of those rights include:

  • The right to a trial by jury of one’s peers;
  • The right to have one’s lawyer cross-examine the prosecution’s witnesses to test the truthfulness of testimony; and
  • The right to present testimony that may show innocence.

What gives any accused person a chance against the overwhelming forces of the government is the commitment of his or her criminal defense lawyer to stand up for the client no matter what it takes. At Wallin & Klarich, we believe in standing up for the dignity of the human beings who we come to represent.

Guilty or Not Guilty


In ordinary lay usage, the term “not guilty” is often considered to be synonymous with “innocent.” In the American criminal justice system, however, the terms are not synonymous. “Not guilty” is a legal finding by the jury that the prosecution has not met its burden of proof (beyond a reasonable doubt), not that the defendant is innocent, although they may also believe this. The ultimate legal issue for the jury to determine is whether or not the prosecution has met its legal burden of proving guilt beyond a reasonable doubt.

Unfettered Prosecutorial Discretion

It is the duty of the prosecutor not to convict, but to see that justice is done. Prosecutors enjoy vast discretion to determine which criminal charges, if any, should be filed after the police arrest a suspect. Prosecutors are the most powerful officials in the criminal justice system. Their everyday decisions control the direction and outcome of criminal cases and have greater impact than those of any other criminal justice official. When the prosecutor makes the decision to charge an individual, she pulls that person into the criminal justice system, firmly entrenches him there, and maintains control over crucial decisions that will determine his or her fate.

Overcharging by Prosecutors

Prosecutors routinely engage in overcharging, a practice that involves tacking on additional charges they know cannot be proved beyond a reasonable doubt. The common practice of overcharging serves two purposes:

  • It gives the prosecutor a greater advantage in the plea bargaining process by providing more charges with which to bargain, and
  • It gives the prosecutor an advantage at trial because the additional charge or charges act as a backup in case the jury fails to convict on the more relevant charges.

With the creation of mandatory minimum sentences and added penalty enhancements for certain offenses, prosecutors now have brutally uneven bargaining power to coerce defendants into guilty pleas. This is evident by the fact that approximately 90 percent of criminal cases filed result in a plea of guilty in some form.

What Wallin & Klarich Thinks

Our criminal justice system is adversarial and both prosecutors and defense lawyers have an ethical duty to advocate their position zealously. A judge or a jury makes the determination whether the client is “guilty” or “not guilty.” The defense lawyer has a duty to make the state prove its case beyond a reasonable doubt, to attack holes in the state’s case and to raise every legitimate defense and mitigating factor. Our criminal justice system cannot properly function if criminal defense attorneys do not represent both the “potentially guilty” as well as the “potentially not guilty.” The “guilty” are separated from the “not guilty” only when the trier of fact has made its determination.

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