Criminal Law

Additional career opportunities include working in crossover fields such as corporate compliance and corporate counsel, state and federal judicial and court staff careers, service in the Judge Advocate General’s Corps, careers with government agencies that enforce criminal laws, serving as an investigator for the FBI, working for a public interest group, and job opportunities that focus specifically on international criminal law matters. This overview discusses each of these options.

In addition to the required Criminal Law and Evidence courses, all students interested in a career in criminal law should take Criminal Procedure and Texas Criminal Procedure. These courses address law considered a core competency for any criminal practitioner. They do not focus primarily on the technical rules associated with the criminal process; rather, the courses largely review important constitutional matters such as Miranda warnings and the scope of permissible searches and seizures.

The following sections will discuss the utility of additional coursework where applicable.

Traditional Trial-Level Criminal Litigation Practice

Criminal law litigators at the trial court level are found in every community regardless of size or location. These litigators represent either the government prosecuting an alleged offender or the person accused. For many, criminal litigation will be their sole focus. However, as discussed below, there are exceptions to that general premise.

Many of the courses listed on the attached pathway provide students with opportunities to develop trial-related skills or learn about certain aspects of the trial process, such as jury selection.

Criminal Litigation Drafting provides students with a step-by-step overview of the case adjudication process from inception, an opportunity to refine drafting skills for the numerous types of documents that are commonly filed throughout the pretrial process, and exercises on how to engage in plea bargaining. The class content is applicable to students interested in both prosecution and defense work.

The Forensic Evidence Seminar examines selected topics in the forensic disciplines devoted to the investigation and trial of cases. Potential topics include blood spatter, DNA, firearms examination, arson investigation, bite marks, and death investigations.

Prosecution

There are prosecutors at all levels of government. Be they local, state, or federal prosecutors, all are charged with seeking justice. Prosecutors do, however, have significant power and discretion to initiate and influence criminal investigations and charging decisions. On account of prosecutors’ broad discretion, the accompanying pathway recommends that students contemplating a career as a prosecutor take Ethical Dimensions of Criminal Practice, which reviews the exercise of prosecutorial discretion at all phases of the criminal process.

At the federal level, the United States Department of Justice and ninety-four United States Attorney offices are charged with enforcing federal laws. The named chief prosecutor is a presidential appointment. Each office employs assistant U.S. Attorneys who are commonly referred to as AUSAs. Typically those prosecutors will have several years of criminal litigation experience before entering federal criminal prosecution; these offices value previous criminal litigation experience at the state level. The specific hiring criteria, however, are largely dependent on geography. AUSA positions in less-populated regions might only require one year of prior experience.

The cases that federal prosecutors litigate often involve multiple defendants and complex fact patterns that can range from stock fraud to human trafficking. Federal prosecutors are also responsible for the prosecution of federal offenses involving international activities, which include terrorism, narcotics offenses, human trafficking offenses, violence against U.S. nationals, and money laundering.

South Texas College of Law Houston’s The Constitution & National Security course reviews terrorism-related offenses, federal war crimes offenses, and unique criminal procedure issues that arise in the context of national security investigations and prosecutions. Money laundering is covered in Corporate & White Collar Crime, as well as Comparative Counter-Terrorism Law and International Criminal Law.

At the individual state level, enforcement of state and municipal laws tends to be more regionalized and occurs in offices of local district attorneys, county attorneys, city attorneys, and state Attorneys General.

The size of state-based offices varies widely, depending on location. In large metropolitan areas, the local district attorney’s office may employ more than 250 full-time prosecutors as well as investigators and support staff; thus, it operates much like a large firm in structure, internal training, and promotions. In smaller communities, demand for full-time prosecutors may not be present, resulting in offices staffed by part-time prosecutors who also engage in private civil practice.

Regardless of venue, the job of a prosecutor entails considerable courtroom work as well as an equal amount of non-trial activities both in and out of court. Prosecutors also engage in case development, including investigation, grand jury proceedings, pretrial hearings, plea negotiations, and sentencing hearings, as well as legal advice for, and representation of, government entities.

The cases a prosecutor may litigate range from fine-only traffic offenses to death penalty cases. Note that the specific types of cases a prosecutor initially handles in practice largely depends on the size and organization of the particular prosecutor’s office. In large offices, new prosecutors often start with a docket comprised of misdemeanor crimes and then work their way up to felonies. In smaller offices, prosecutors might have opportunities to handle more serious felonies very early in their careers, if not immediately.

Additionally, larger offices often have specialized units that are responsible for prosecuting certain types of crimes. Some prosecutors elect to focus on a particular type of crime or punishment, such as death penalty cases or asset forfeiture of goods used to foster a criminal enterprise. The ability to practice one’s desired specialization and the time it takes to reach that goal is often a product of an office’s organization.

Students should contemplate particular areas of interest when making course selections. For those interested in prosecuting criminal activities with a business focus (or if you are not sure whether this type of practice interests you), STCL Housotn’s Corporate & White Collar Crime course is strongly recommended.

Prosecutors have increasingly decided to remain in their positions as a long-term career path. However, other criminal prosecutors may elect to litigate for several years before moving to careers as criminal defense lawyers or civil litigators. Further still, other prosecutors remain in the field but move between state and federal practice or to administrative agencies. Some prosecutors seek judicial office.

Criminal Defense

Attorneys representing persons accused by the government of criminal activity are found at the local, state, and federal levels. They may be private practitioners or attorneys in a public defender’s office. As a matter of federal constitutional law, the government is required to provide the assistance of counsel to indigent defendants. Satisfying that obligation takes many forms and provides a range of practice opportunities. Criminal defendants who are not indigent are largely unfettered in their ability to hire counsel of their choice.

The exercise of the defense function is substantially enhanced by understanding the role of the prosecutor. For this reason, Ethical Dimensions of Criminal Practice is also recommended for students who aspire to defense practice. Additionally, while the course primarily focuses on the role of the prosecutor in the criminal justice process, it will also explore unique challenges associated with defense practice. 

As with prosecutors, the job of defense counsel entails considerable courtroom work, as well as skills in investigation, negotiation, theory development, and motion practice. The practice life of defense counsel employed by an entity such as a public defender’s office shares many common features with prosecutors: a large law firm environment and structure with in-house training, peer review, and divisions or areas of practice.

Private practitioners may be found in a range of settings. Some are part of small or mid-size firms that specialize in criminal defense. From that group, some may further specialize in areas such as white collar defense. As noted previously, the practice of white collar defense involves representation of clients accused of criminal activities with a business focus, in contrast with “street crimes,” which are often either drug crimes or one-perpetrator-one-victim incidents such as burglary or assault.

Other private defense attorneys may develop a boutique practice by concentrating their representation primarily at the federal or state level, or may focus on a genre of crime such as homicide or driving while intoxicated. Success in practice is based on an ability to effectively represent clients, but it can also be influenced by an attorney’s ability to effectively identify and fill market niches.

Many defense attorneys are solo practitioners, or they are in office-sharing arrangements. Some will accept court appointments for the representation of indigent defendants accused of crimes; even in jurisdictions with a vigorous public defender’s office, private attorneys are needed for indigent defendants in as much as half the docket. Some private practitioners reject such appointments, while others largely depend on them as a source of clients.

Students potentially interested in becoming a solo practitioner should consult the Solo & Small Firm Practice Subject Overview and Pathway, and consider coursework in Law Office Management. Additionally, Criminal Litigation Drafting reviews several issues that pertain to criminal law solos, such as drafting retainer agreements.

Some private practitioners do not devote their practice exclusively to criminal law. For example, they may practice both family law and criminal law. This can be particularly true in smaller communities where the private practitioner has a general practice that includes simple real estate transactions, some family law, some estate planning and probate, and basic criminal defense.

Regardless of whether a student plans to practice exclusively or partially in the area of criminal defense, it is important to keep in mind that defense attorneys have special obligations when they represent individuals who are not U.S. citizens. Specifically, they must understand the immigration consequences of guilty pleas for particular crimes. For this reason, the accompanying pathway recommends Immigration Law.

Post-Conviction Litigation – Appeals and Habeas

A career in criminal law may involve a concentration in post-conviction litigation. The two main areas of this practice are direct appeals and post-conviction writ challenges. As with trial litigation, there are career opportunities for both prosecutors and defenders. Similar scenarios come into play at both the state and federal levels. Because federal constitutional rights permeate both state and federal post-conviction appellate and habeas practice, Criminal Procedure and Texas Criminal Procedure are essential courses for students who aspire to this field of practice.

The defendant’s appeal following a criminal conviction forms the bulk of post-conviction litigation. To a lesser extent, the government’s appeal of an adverse ruling on a small number of specified critical pretrial motions may be involved. In Texas, as in the federal system, an appellate practice at the intermediate court of appeals level involves reading the trial court records, identifying relevant issues to challenge on appeal, conducting research, drafting an appellate brief, and, often, presenting oral argument.

Many of the skills students learn in Legal Research & Writing II are directly relevant to appellate practice. STCL Houston’s Appellate Advocacy course and Moot Court Competition can also help students refine their appellate advocacy skills. An understanding of appellate practice is beneficial even for students who do not plan to handle appeals. To be a successful trial attorney, one must understand how appellate courts review and assess perceived errors at the trial level.

At the discretionary review level—that is, before the highest appellate court in a jurisdiction—the appellate practitioner is seeking to convince the reviewing court that the case presents issues of potential substantial impact on the development of criminal jurisprudence. Every major prosecutor’s office and public defender’s office will have a discrete appellate section. Typically, attorneys practicing in those units will have had several years of trial litigation experience. At the state level, if either party elects to seek review from the United States Supreme Court, the state is represented by the Texas Attorney General’s Office, Law Enforcement Division, rather than the local prosecutor.

The second major area of post-conviction litigation centers on habeas corpus actions. These take place when the convicted defendant is challenging the constitutionality of his confinement. This practice area combines elements of both trial and appellate practice.

Few Texas state court public defender offices handle post-conviction writs. In contrast, the “appellate” sections of many prosecution offices often have a sub-department devoted to writ litigation in the trial court (which is where a case is filed) and the Court of Criminal Appeals (which is the only court empowered to grant relief). If a state prisoner chooses to further litigate his or her claim in federal court, the State’s role is once again undertaken by the Texas Attorney General’s Office, Law Enforcement Division.

Certain categories of criminal litigation have created a cadre of defense attorneys and prosecutors who focus almost exclusively on those cases, such as death penalty capital murder cases. In these categories, both direct appeals as well as post-conviction writs are usually handled by attorneys who practice almost exclusively in those areas. This same type of stratification is found in the permanent staff of the Texas Court of Criminal Appeals. For students contemplating a specialty in death penalty cases—or for those who would simply like to learn more about the law and policy surrounding the issue—Death Penalty Seminar is recommended.

Entering the practice environment of “criminal appellate” or “writ” most often follows an apprenticeship period at the trial level. Attorneys selecting this career path tend to remain in it for the long haul. In the initial year of Criminal Appellate Certification by the Texas Board of Legal Specialization (which was 2011), a total of 116 attorneys applied for certification. Over the subsequent three-year period, 84 Texas lawyers obtained board certification in Criminal Appellate Law.

Additional Types and Venues of Practice Involving Criminal Law

Corporate Compliance

Both business people and the business entities they manage can become defendants in a criminal action. Federal and state crimes chargeable in a business context include securities fraud, intellectual property theft, tax evasion, improper dealings with foreign governments, and environmental violations. If the government files formal charges, attorneys defend these clients as reviewed in the previous section on criminal defense.

Businesses, of course, want to avoid criminal charges. They rely on attorneys to ensure that the business does not violate any criminal laws. The work of attorneys in this capacity generally falls under the rubric of “corporate compliance.”

Corporate compliance attorneys assess business operations or planned future endeavors to ensure compliance with applicable criminal statutes and regulations. However, businesses cannot always control the actions of all their employees and agents. As a result, businesses turn to lawyers to help them create formal processes and procedures to minimize the likelihood that criminal conduct will occur. Additionally, if a government agency initiates a criminal investigation, attorneys help the business respond.

In these capacities, businesses rely on in-house counsel, law firms, or a combination of the two. Students interested in pursuing a career in this sub-specialty should take Corporate & White Collar Crime. Additionally, students would benefit from a general understanding of business structures and the main areas of law that pertain to business practice. Please consult the Business & Corporate Law Subject Overview for additional information.

Finally, students should note that many attorneys hired as in-house counsel have previous experience litigating criminal cases as prosecutors or defense counsel—with a focus on corporate and white collar crime, in particular. Your ability to obtain an in-house position directly out of law school is largely dependent on the work experiences you pursue and the relationships you build prior to graduation.

Court Staff Attorneys

At the state and federal level, courts employ staff attorneys to assist judges with their judicial functions. Staff attorneys must analyze legal problems, prepare legal memoranda, interpret laws and regulations, and provide legal advice and counsel. Sometimes, depending on the court, they draft opinions for certain types of cases. While staff attorney positions do not always focus exclusively on criminal law matters, criminal law issues may represent a significant portion of staff attorneys’ work. Unlike judicial clerkship positions that usually last for one or two years, staff attorneys often stay in their positions for a considerably longer amount of time.

Judge Advocate General’s Corps

Criminal practice is a core component of JAG service. Each military installation is essentially a small city, and like any city, prosecutors and public defenders address criminal misconduct within the community.

Almost all JAGs can expect to experience one to two years of criminal trial practice during their first four-year obligation period. However, it would be inaccurate to assume that criminal practice will be the dominant aspect of a JAG career. The extent of time spent in such practice will vary from one JAG to another, and the extent of experience will vary from one installation to another. Nonetheless, JAG officers who desire to maximize the criminal law practice experience will normally be able to seek multiple opportunities as a prosecutor or defense counsel throughout a career.

Furthermore, unlike most civilian jurisdictions, the majority of trial practice is performed by junior JAG officers, with more senior officers responsible for supervisory functions. JAGs may also have the opportunity to practice as criminal appellate advocates or military judges later in their careers. Finally, JAGs are provided extensive criminal-practice-oriented educations and CLE—continuing legal education—at their respective JAG schools.

Enforcement within Government Agencies

Many government agencies at the state and federal level have enforcement responsibilities. Specifically, these agencies are often tasked with enforcing the laws that fall within the scope of their regulatory authority. These enforcement actions may be grounded in violations of civil law but they can also be based on criminal violations.

Most agencies do not have the authority to independently prosecute perceived criminal violations. Nevertheless, they do investigate potential criminal violations and assist government entities with prosecutorial authority—this is the flip side of attorneys who assist businesses being investigated, discussed above in the Corporate Compliance section. For example, the U.S. Environmental Protection Agency investigates perceived criminal violations of environmental statutes and regulations, and it will assist the U.S. Department of Justice, which has authority to prosecute such violations. 

Special Agent with the FBI or Other Government Agencies

Special Agents with the FBI often have a background in the law, either as lawyers or law enforcement officers. FBI agents typically do not practice law; rather, they are responsible for conducting national security investigations and enforcing over 300 federal statutes. FBI agents may be assigned to investigate federal crimes relating to foreign counterintelligence, cyber crime, public corruption, bank robbery, extortion, drug-trafficking matters, or a host of other federal violations. Special agents can also be found in other government agencies, including the Drug Enforcement Agency and Customs & Border Protection.

Non-Governmental Organizations

There are numerous non-governmental organizations with missions that fully or partially focus on criminal law matters. For instance, groups might advocate for the abolition of the death penalty or for general reforms to sentencing guidelines or prison conditions. Students interested in pursuing a career with a public interest group should consult the Public Interest Law Subject Overview to learn more about the work of public interest attorneys.

International Criminal Law

In the years following World War II, there has been an increase in the use of international tribunals to address substantive “international” crimes such as genocide, crimes against humanity, and war crimes. Jurists, prosecutors, and defenders are recruited from both common law and civil law traditions. They have usually served similar roles in their home nations for a number of years prior to their appointment or hiring. Generally, they will serve a fixed term in the international tribunal and then return to their nation. It goes without saying that this is not a career option that students can consider at the outset of their careers, and the number of positions are limited.

There are, however, other opportunities for students interested in international criminal law. For instance, tribunals might employ individuals to help them perform their investigative functions.

Additionally, several domestic government agencies focus on international criminal law matters. Examples include the Office of Global Criminal Justice in the U.S. Department of State and the Human Rights Violators & War Crimes Unit of the U.S. Department of Homeland Security.

Finally, there are many non-governmental organizations that focus on issues which touch upon international criminal law, such as Amnesty International and Human Rights Watch.