The role of defense counsel

The defense lawyer has a double function in the investigation phase of the criminal process: to assist the suspect in gathering exonerating evidence and to protect him from violations of his rights at the hands of law-enforcement personnel. All legal systems grant the suspect the right to the assistance of an attorney, and in many countries the suspect must be informed of this right before police interrogate him. If the suspect does not have the means to hire a lawyer, often the state will pay the attorney's fee or provide the suspect with state-employed counsel.

However, the law also restricts defense counsel's ability to carry out his functions. In some jurisdictions, as in France, the attorney has no right to be present when the suspect or a witness is interrogated by the police; only a few countries, such as the United States, grant the defense the right to compel witnesses on its behalf to appear in court. Moreover, in most jurisdictions the defense has no or only limited access to information gathered by the prosecution before the case reaches the court.

Pretrial detention

Incarceration of the suspect before trial most seriously impairs the preparation of an effective defense. Nevertheless, all legal systems permit pretrial detention, though under differing conditions.

In Anglo-American jurisdictions the rule is that suspects arrested and not released immediately for want of cause are held in custody. However, the suspect generally has a right to be released on a financial surety, or bail, the amount of which is set by the magistrate according to the individual circumstances of the case. The purpose of bail is to assure appearance of the suspect at the trial; hence, it will be forfeited if the suspect absconds. In appropriate cases the suspect can be released on his own recognizance (i.e., without providing bail). Only under special circumstances - for example, when it is thought that the suspect might commit further offenses if released — can bail be denied altogether.

In continental Europe the law treats pretrial detention as the exception rather than the rule. The magistrate can remand the suspect to custody before trial only if this is necessary to prevent him from escaping, tampering with evidence, or committing further serious offenses. Even on the Continent, the law authorizes the court to release a suspect from custody if sufficient surety is posted.

The decision to prosecute

A formal accusation is universally regarded as an indispensable prerequisite for a criminal trial. It is typically the public prosecutor who, on the basis of the results of the investigation, determines whether to file a complaint and for which offense to bring charges.

Private prosecution

Private citizens, such as the victim of the offense, are not generally permitted to institute a criminal action, though the law on this point differs among jurisdictions. In the United States private criminal complaints are practically impossible. In England anyone can institute criminal proceedings for most offenses, but the director of public prosecutions can take over and discontinue prosecution at any time. In Germany citizens can prosecute only for certain minor offenses such as libel and assault. In France victims of crime can combine criminal prosecution with civil claims for damages.

In many countries victims can prevent prosecution for certain offenses — e.g., assault, libel, and some sexual offenses — by not filing a special request for public prosecution.