Last week, writing about criminal defense as a form of “obstruction of injustice”, Guilherme Brenner Lucchesi concluded that ours is, by necessity, an uncomfortable profession.
The point is well taken. But it raises a question: why must criminal defense be uncomfortable?
Perhaps because, when a prosecution theory seems to explain everything, defense counsel is often the only professional in the case whose job is to try to prove that it is wrong.
An investigation begins with suspicions, gathers evidence, and develops theories. From those theories, facts are reconstructed and given legal meaning. That process is unavoidable. Facts do not arrive in court fully formed or self-explanatory. The problem begins when the theory is no longer tested against the facts and instead starts dictating how the facts themselves are understood.
That is precisely where the defense lawyer becomes uncomfortable. Defense counsel goes back to the beginning, questions what everyone else considers settled, demands proof for a conclusion repeated so often that it has come to seem self-evident, looks for the fact that does not fit, and shows that the theory may be wrong. And quite often, it is only when those questions are asked that a prosecution begins to unravel.
Challenging the Primacy of Theory Over Facts
Investigation requires developing possible explanations and looking for evidence that either supports or disproves them. The danger lies in falling in love with one of those explanations too soon.
Franco Cordero described this phenomenon as the “primacy of hypotheses over facts.” Writing about investigations conducted without the testing force of an adversarial process, he warned that an investigator may pursue a particular theory even though nothing establishes it as better founded than the alternatives and the investigative method itself may provide too little incentive for self-criticism. When all the cards are in the investigator’s hands, it is the investigator who lays them on the table — and may ultimately arrange them all in the direction of “his” theory.¹
Today, the phenomenon is also described as tunnel vision: once a particular explanation takes hold, later evidence tends to be interpreted through it. Evidence that confirms the theory gains significance. Evidence that cuts against it is pushed to the margins. None of this requires bad faith. It is a human tendency operating within an adversarial criminal justice system.
Once this sense of “certainty” takes hold among the other actors in the case, the question gradually stops being what a particular piece of evidence actually allows one to conclude. The question becomes how that evidence fits what has already been concluded.
An ambiguous fact is given only one meaning. A coincidence takes on incriminating significance. A gap is filled by inference, and that inference becomes the foundation for another. Little by little, what began as a theory starts to look like a proven fact.
This dynamic often carries over from the investigation into the formal charge — particularly in a system where prosecutors themselves increasingly participate in investigative work. The charging document organizes the facts, assigns responsibility, and presents the court with a completed narrative of what supposedly happened.
By that point, those who developed the theory and those bringing the charge may already be convinced of it. Defense counsel is the one professional in the case whose job is to move in the opposite direction.
The Art of Putting Your Finger on the Sore Spot
In that setting, it is not enough for defense counsel simply to offer a competing story. The adversarial process requires something more: attacking the premises of the prosecution’s theory and returning to the point at which that theory first took shape, before it hardened into an accepted narrative.
What does this evidence actually prove? Is there another plausible explanation? What supports the conclusion that this person knew about it? Does this document prove the proposition, or is it merely consistent with it? Did the witness actually say what the prosecution claims the witness said? What evidence connects one conclusion to the next? Was anyone looking for evidence that could disprove the original theory?
These are uncomfortable questions because they target precisely the points the settled narrative has already treated as resolved.
The defense lawyer returns to the premise when everyone else has already moved on to the conclusion.
Defense counsel goes back to the original document when everyone else has begun citing the report that interpreted it. Goes back to the testimony when an account of what the witness supposedly said has circulated through the case so often that it has replaced the witness’s actual words. Checks dates, times, messages, and competing accounts; looks for inconsistencies; and separates what the evidence proves from what someone has inferred from it.
That work is uncomfortable because it can bring down the entire theory. Remove one premise, and several conclusions built upon it may collapse. This is one aspect of the institutional importance of criminal defense: wherever the State has the power to investigate, prosecute, and punish, someone must have the institutional role not of confirming the theory, but of testing it.
Challenging Overcharging
There is another phenomenon that makes the criminal defense lawyer’s role even more important: overcharging.
Overcharging means alleging more than the available evidence can support — stacking offenses that substantially describe the same conduct, extending criminal responsibility to people only peripherally connected to the events, turning ordinary circumstances into incriminating ones, or expanding the prosecution’s narrative to conduct the evidence does not sustain.
An inflated indictment or charging instrument gives prosecutors greater bargaining leverage in non-prosecution agreements, cooperation agreements, plea negotiations, and other forms of negotiated criminal justice. It can support requests for more intrusive pretrial measures and detention; it gives a case greater apparent weight and creates an impression of seriousness that can influence the court, the press, and public opinion.
Behind overcharging lies the same primacy of theory over facts. Once the prosecution’s conviction has hardened, the event initially under investigation becomes part of something larger. A conversation stops being merely a conversation and becomes evidence of an agreement. A professional relationship becomes evidence of a criminal association. An irregularity becomes proof of intent. People close to the events are absorbed into the narrative as accomplices or co-conspirators. Each conclusion reinforces the last and becomes the premise for the next.
But the paradox is simple: adding charges does not add evidence — it adds allegations that must be proved. If two offenses are charged, both must be established. If a particular relationship is essential to the prosecution’s case, it must exist in the evidence, not merely in the narrative. If a circumstance changes the legal meaning of the conduct, that circumstance must also be proved. The greater the distance between the evidence available and the conclusions drawn from it, the greater the space for the defense to operate.
A good defense lawyer works backward through that chain: removing what was merely an inference, and then removing what depended upon that inference.
The Uncomfortable Profession
The criminal defense lawyer’s professional duty therefore places counsel opposite the consensus that can develop within a case — often in a position others find uncomfortable. When a theory has persuaded both investigators and prosecutors, the lawyer must look for what might disprove it. When a conclusion appears obvious, the lawyer must ask where it came from. When a fact is presented as undisputed, the lawyer must check whether it truly is. When the prosecution attributes more to a person than the evidence can support, the lawyer must resist that excess.
That is uncomfortable. It may mean insisting on a question no one else considers important, dismantling a narrative built over years of investigation, arguing over a single word buried in thousands of pages, or focusing on a difference of a few minutes in a timeline that appears insignificant.
But criminal cases are made of exactly those things. One question can undermine a premise; once the premise falls, an inference may fall with it; and once that inference disappears, an entire prosecution may go with it.
Criminal defense is uncomfortable because its function requires challenging certainty at precisely the moment everyone else seems satisfied with it.
On Lawyers’ Day, that is reason enough to celebrate the profession. The exercise of the State’s power to punish requires conviction — but conviction must be tested before it is allowed to produce its gravest consequences.
Often, the defense lawyer is the only person in the room willing — and professionally required — to ask:
What if you are wrong?
So, on this August 11, my respect goes to my fellow lawyers in the trenches who have chosen to practice this uncomfortable profession: those who are not intimidated by prosecutions enamored of their own theories; who put their finger on the sore spot; who push back against overcharging; and who are always prepared to make the process uncomfortable when their clients’ interests require it.
May we never lose the willingness to ask the uncomfortable question, return to the forgotten premise, and confront a certainty that cannot withstand the evidence.
Happy Lawyers’ Day.
Honoré Daumier, Le Défenseur (Counsel for the Defense), c. 1862–1865. The justice system and its characters were recurring subjects in Daumier’s work, often portrayed through a critical and satirical lens. In this drawing, defense counsel stands at the center of a courtroom scene, making an emphatic gesture before the accused. The image accompanies this article because, more than a century and a half ago, it captured one of the enduring features of criminal defense: occupying the place in the proceedings of the person who speaks up, questions, and challenges an already established narrative. National Gallery of Art, Washington, Corcoran Collection. Public domain image.
