August is the month in which Brazil celebrates the legal profession. It is usually marked by tributes to lawyers, reflections on professional rights, and reminders of the lawyer’s essential role in the administration of justice. All of that matters. But for criminal defense lawyers, there may be a more revealing question to ask: why does our work make so many people uncomfortable?
I have written before on this blog about the importance of criminal defense throughout history. There is, however, another aspect of the profession that deserves attention. Criminal defense lawyers are often found exactly where much of society would rather see no one at all: standing beside a person accused of a crime, asking difficult questions, setting limits, demanding time, challenging evidence, and resisting conclusions that others have already accepted.
To many people, that looks like standing in the way of justice.
Alan Dershowitz coined a much better expression for what criminal defense can mean: obstructing injustice.
Obstructing injustice
In 1982, Harvard professor and criminal defense lawyer Alan Dershowitz published The Best Defense, a book based on his experience in some of the most difficult and controversial criminal cases of his career. One of its three main sections is titled Obstructing Injustice.
The choice of words is deliberate. In the United States, obstruction of justice is a criminal offense. Dershowitz turns the phrase on its head.
That reversal only makes sense if we reject a very common assumption: that whatever the criminal justice system is trying to do must, by definition, be just.
It is not.
An investigation can be misguided. A search can be unlawful. Evidence can be unreliable or inadmissible. Pretrial detention can be unnecessary. Prosecutors can make allegations that go beyond what the evidence actually supports. Judges can lose the distance a case requires. And a conviction may be widely desired and still be legally unjustified.
In his well-known “Rules of the Justice Game”, Dershowitz begins with an uncomfortable premise: it is often easier to convict guilty people by violating constitutional protections than by respecting them. He also argues that, especially when the defendant is guilty, an effective defense may require putting the government’s own conduct under scrutiny.
That is what gives the expression its force.
Criminal defense places limits in the path of state power. But limiting power is not the same as obstructing justice.
Sometimes it is precisely what justice requires.
The individual against the power of the State
I often tell my students that Criminal Law and Criminal Procedure may be among the most liberal areas of law.
Liberal in the older sense of the word: they are built on a distrust of unchecked power and on the need to protect the individual against it.
That does not mean distrusting police officers, prosecutors, or judges as individuals. It means something much more basic: power must always have limits.
Once the machinery of criminal enforcement turns toward someone, that person’s position changes dramatically. It makes little difference whether the target is a wealthy businessperson, a powerful politician, or someone living at the margins of society. Against the State’s ability to investigate, search, seize, freeze assets, arrest, prosecute, and punish, each of them is simply an individual.
That is the person criminal defense exists to protect.
The right to challenge the prosecution’s case, the right to counsel, legality, due process, and the requirement of proof are not inconvenient obstacles placed in the way of an otherwise efficient State. They are what make the exercise of that power legitimate.
Our role is to make sure those limits are respected.
Injustice can begin long before a verdict
It would be a mistake to think that obstructing injustice only means excluding unlawfully obtained evidence or challenging an improper detention order.
Injustice can begin much earlier.
It can begin when an investigation stops asking what happened and starts asking what can be found against a particular person.
That happens. Sometimes a target is chosen first and the search for a prosecutable fact comes later. In other cases, an initial theory falls apart, but instead of being abandoned, the investigation keeps shifting, widening, and reformulating itself until something can be found to preserve the original suspicion.
There are rushed investigations. There are shortcuts. There are investigations that become persecution.
We do not need to speculate about why that happens in order to acknowledge that it does.
And that is precisely when the defense must push back. Question assumptions. Demand access to the record. Reexamine the evidence. Request additional investigative steps. Challenge conclusions. Bring forward facts that the original theory ignored.
That may be inconvenient.
It is supposed to be.
Justice needs time
There is another part of this role that has become increasingly important to me: the defense creates time.
Serious criminal cases often begin at the worst possible moment for careful judgment. There may be outrage, fear, intense public attention, pressure for immediate answers, and heavy media coverage. Public opinion forms conclusions quickly. Investigators may also feel pressure to produce results at the same pace.
We have previously discussed on this blog the dangers of the spectacularization of criminal law and trial by public opinion. The problem is not a free press, nor is it legitimate public interest in criminal cases. The problem begins when the speed of the news cycle starts dictating the pace of justice.
Justice requires distance.
A judge must be able to make an unpopular decision when the law requires it. Evidence must be assessed after the noise has faded, when the facts can be examined with some degree of calm.
Without that distance, justice can turn into punishment driven by outrage.
When the goal becomes finding someone to condemn in the public square, there is no longer much interest in understanding what actually happened or what the law allows. What matters is simply producing an outcome.
Criminal defense lawyers are naturally unpopular in that environment because we stand between the individual and that impulse.
We ask for time when everyone is in a hurry.
We ask for proof when everyone is already convinced.
We ask for restraint when everyone wants an immediate answer.
Creating time for the client as well
There is also another dimension of time, less institutional and more human.
One of the things I try to do in a criminal case is create time for the client.
Being investigated or prosecuted can easily take over a person’s life. Every new development feels enormous. Every news report creates anxiety. Every procedural step seems to demand an immediate reaction. Gradually, family, work, and ordinary life begin to revolve around the case.
Part of our job is to take on that burden.
The client should be able to entrust the legal strategy, the technical decisions, and the management of the case to counsel and, as much as possible, return to family, work, and life.
The case is our job.
It should not become the client’s entire life.
We defend guilty people too
This may be the hardest part of criminal defense for many people to accept.
We represent innocent people.
We also represent guilty people.
There are not two forms of criminal defense: one morally comfortable, reserved for the innocent, and another somehow embarrassing, reserved for the guilty. Nor do we lower the quality of the defense because of our own view of what the client may have done.
The reason is simple: rights do not begin only after innocence has been established.
No legal system could work that way. To decide who deserves lawful evidence, an impartial judge, due process, or effective counsel, we would first have to know who is guilty. But those protections exist precisely so that guilt can be determined lawfully.
The Constitution does not protect only people we like or people whose innocence we find easy to imagine.
And guilt does not place a person outside the protection of the law.
An unlawful search does not become lawful because it uncovered evidence of a crime. Weak evidence does not become strong because we dislike the defendant. Unnecessary detention does not become justified because the charge is serious. A biased proceeding does not become fair because we think the accused deserves punishment.
A criminal defense lawyer does not decide which rights a client is entitled to. The law has already answered that question.
The limits are clear
None of this means that a lawyer may do anything in the name of defending a client.
Obstructing injustice does not mean destroying evidence, fabricating stories, inventing alibis, pressuring witnesses, hiding the proceeds of crime, or taking part in unlawful conduct.
The criminal defense we believe in is practiced entirely within the law and the Constitution.
We have no right to prevent a lawful investigation from uncovering what it is lawfully entitled to uncover. We do have a duty to prevent an investigation from crossing the boundaries that make it lawful in the first place.
That distinction matters.
A forceful defense is not unlawful conduct. Legal strategy is not fraud. Professional rights are not special privileges. Defense is not complicity.
As we have discussed before when considering the institutional importance of criminal defense, the value of the defense is often clearest in the very cases in which defending someone is least popular.
A profession that is bound to be uncomfortable
It may be impossible to convince people of the importance of criminal defense simply by asking them to imagine themselves in the defendant’s place.
The enemy is almost always someone else.
When the accused is someone close to us, we immediately assume there must be another side to the story, that a mistake may have been made, that the truth will eventually come out. When the accused is distant from us, belongs to another group, is associated with a particularly disturbing crime, or has been turned into a public enemy, those same safeguards suddenly seem unnecessary.
That is why fundamental rights cannot depend on empathy.
A society shows how seriously it takes its own principles not when it applies them to people it admires, but when it applies them to people it would rather exclude.
That is where criminal defense stands.
Not to acquit guilty people at any cost. Not to stop legitimate investigations. Not to turn illegality into a defense tactic.
We are there to protect the individual against power; to introduce doubt where there is certainty; to demand proof where there is suspicion; to create calm where there is haste; to resist persecution; to challenge shortcuts; and to remind everyone, especially when it becomes unpopular to do so, that the power to punish remains subject to law.
During the month in which we celebrate the legal profession, perhaps we do not need to praise criminal defense lawyers.
It is enough to imagine a criminal justice system in which no one was willing to stand in that place.
Sometimes, doing justice requires obstructing injustice.
