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While indigent defendants charged with serious criminal offenses can be represented by lawyers in the United States and by barristers and solicitors in England and Wales. Gauging the quality of that help is an important but elusive inquiry. This article has two purposes: to map how the indigent criminal defendant charged with very serious offenses is represented in England's Crown Court, and to examine whether economic incentives can induce the defendant's representatives to perform as expected.

While barristers profess to be skilled advocates, and while many lawyers have likewise extolled the barrister's advocacy, testing the point is extremely difficult. Apart from observing trials or reading memoirs, there is scant evidence to study. The information often used to evaluate the effort of lawyers--challenges by disgruntled defendants to the effectiveness of the lawyer's efforts--hardly exists in England. Without a better understanding of how the criminal defendant is represented in England, lawyer-advocates may think themselves as inept as many critics claim they are when compared with their barrister cousins.

If barristers do perform better than lawyers, why is this so? The compensatory scheme plays a role, and this article's second purpose builds on the truism that economic incentives can affect the defendant representative's preparation and advocacy. Inadequately compensated, advocates will refuse to represent indigent defendants or will be tempted to do less than needed.

Indigent defendants in the United States, for example, may be deprived of the most able advocates because they cannot select the advocate and, even if they could, the advocate might refuse to help because the remuneration is inadequate. The compensation paid to court-appointed lawyers is pitiably low in many state courts, and, although higher, even tolerable, in federal courts, is still too low to entice skilled advocates to represent indigents when they can garner higher fees from other sources. Moreover, typically paid by the hour but with a ceiling on the total award, court-appointed lawyers have an incentive either to resolve the matter once their cumulative bill approaches the ceiling or to skimp after exceeding the ceiling because their time is then uncompensated.

Matters are different in England's Crown Court. Indigent defendants can select the barrister who, for two reasons, cannot decline the request. First, the cab-rank rule requires a barrister to represent one who seeks help, no matter how reprehensible that person or his legal position is, so long as the barrister has no conflict of interest and the compensation is adequate. Second, the Bar defines the compensation paid in publicly-funded criminal cases as adequate. Barristers are not chafed by this requirement because the compensation in publicly-funded cases can be quite high, and significantly higher even than in federal courts. Thus, defendants in Crown Court have the unparalleled opportunity, when compared to their counterparts prosecuted in American courts, to retain the most skilled advocates who are available. That having been said, defendants in Crown Court are often disappointed when they learn, often shortly before the trial date, that the barrister initially retained has withdrawn from the case. The barrister's return of the brief (the "returned brief") threatens to undermine this important aspect of English practice. It will be important to learn how the compensatory scheme affects the barrister's incentive to return or to keep the brief.

Publication Citation

36 Am. Crim. L. Rev. 171-222 (1999)