Why history shows we need lawyers

Research brief 29

Why do people need lawyers? This may sound like the start of a joke. Yet the need for lawyers remains a serious issue for anyone seeking protection of their constitutional rights, arbitration in civil disputes or a fair trial in criminal matters.

Access to legal services has become a particularly serious question in recent years, given the worldwide trend towards decreased legal aid funding. One of the most egregious features of US President Donald Trump’s proposed budget cuts, for instance, is the elimination of the Legal Services Corporation, which provides support to legal aid programs that service around 2 million low-income individuals annually. The $352 million funding cut will decimate Americans’ access to equal justice, a principle championed even by one of Trump’s idols, Justice Antonin Scalia, at the 40th anniversary of the LSC in 2014.

Likewise, on 5 June 2017, the Law Society of Scotland released a press statement warning that the country’s legal aid system required urgent investment if it was to survive. In England and Wales, concerns have been expressed that massive cuts to legal aid for criminal cases has led to a loss of police accountability, as the courts – in the absence of effective defense teams – become mere vehicles for rubber-stamping arrests.

Think such concerns sound far-fetched? Big data research on the history of the criminal trial in Australia, conducted as part of the ARC-Laureate Fellowship Prosecution Project, suggests otherwise. Let’s rewind to consider what criminal justice used to be like before the rise of defense lawyers and the birth of modern legal aid.

History of criminal defense lawyers

The criminal trial as we know it today – two lawyers on competing sides – only came into existence in the eighteenth century. Before this, under the English common law system felony defendants were prohibited from employing lawyers to speak for them in court. It was only in 1836 that the Prisoners Counsel Act allowed lawyers to fully act for clients in criminal matters.

Nevertheless, while criminal defendants now had the right to a lawyer in England and its Australian colonies, this was no guarantee they would get one. Legal representation remained largely dependent on an individual’s capacity to pay. Prosecution Project data show that by 1861 less than half of defendants charged with serious crimes had legal representation.


Lawyers by Honore Daumier. Image via Wikimedia Commons.

Nineteenth-century judges did have the discretionary power to appoint lawyers for defendants who faced the death penalty. However, they did not always choose to do so. Citizens of Bendigo were outraged in 1871 when a death sentence was handed down to a man who had been undefended in court. Even if counsel was appointed for a defendant, this was often only done on the day of the trial itself, with the defense sometimes having mere minutes to confer with their client before proceedings.

Things slowly began to change in the twentieth century. In 1903, the Commonwealth introduced a ground-breaking piece of legislation that allowed impoverished defendants accused of any federal crime to apply for legal representation. Over succeeding decades Poor Prisoners Defense Acts were introduced across the different state jurisdictions.

However, restrictions on eligibility for assistance meant many remained undefended. Prosecution Project data – the first in the world to track legal representation over a sustained period – suggests that between a quarter to a third of defendants facing serious gaol time remained undefended through to the early 1960s, when modern legal aid schemes began to be introduced.

Impact of lawyers on trial outcomes

But did not having a lawyer matter to those who historically went undefended? The Prosecution Project research suggests that it was perhaps one of the most important factors in trial outcomes.

Compared to a defendant without representation, those who had defense counsel were 3.2 times more likely to be acquitted. Across a hundred year sample from 1861 to 1961, 56 per cent of defendants with legal representation were acquitted, compared to just 28 per cent of those without lawyers. Even if convicted, represented defendants were more likely to receive non-custodial penalties or shorter gaol terms than their undefended counterparts.

The effect of legal representation remained significant even when factoring in other variables such as defendant sex, race, age, class, geographical location and offence type. There was consistently at least a ten per cent difference between acquittal rates for those defended and undefended within different sub-categories.

For some groups, however, representation appeared even more important: whereas being defended meant Caucasian defendants were three times more likely to be acquitted, the odds for ethnic minority defendants improved 4 and a half times.

The data also intimated that even the worst lawyer was better than no lawyer at all: while the success rates of different barristers varied dramatically, even the defendants of a lawyer with the lowest acquittal rate stood significantly better odds than those who were undefended.

Given this, it is hard to see how a defendant without legal representation can ever be said to have had a fair trial.

Current legal aid provisions in Australia

The research is clear: people in trouble with the law need lawyers. And today as in the past, legal problems tend to disproportionately affect those least able to afford counsel.

Yet, as Law Council of Australia President, Fiona McLeod SC, pointed out earlier this year, over the last two decades legal aid in Australia has faced a steadily worsening funding crisis. In 2014, a Productivity Commission Inquiry Report into access to justice arrangements called for an additional $200 million a year to be allocated to legal assistance to ensure disadvantaged community members received the support they needed.

There was cause for celebration last month when the Turnbull government reversed its plans to cut $35 million for community legal centres from the budget, an action that would have in particular affected legal services for Indigenous peoples and those escaping family violence situations. This was one small victory for equal justice in Australia; let’s hope there is more to come.

Author: Alana Piper

To cite this research brief: Alana Piper, ‘Why history shows we need lawyers’ The Prosecution Project, Research Brief 29, https://prosecutionproject.griffith.edu.au/why-we-need-lawyers/ (9 Jun 2017, viewed 7 Jul 2017).