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Chapter 10
The Prosecution and the Defense
What Titles Do Prosecuting Attorneys Have?
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District Attorney
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County Attorney
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State’s Attorney
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U.S. Attorney
Politics and Prosecutors
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The prosecutor is either elected or appointed
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The prosecutor is among the leaders of his or her party, and has
allegiances to it and a local constituency that may affect decision
making
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The office of local prosecutor is often seen as a political stepping
stone
Duties of the Prosecutor
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Enforcing the law
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Representing the government
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Maintaining proper standards of conduct as an attorney and court
officer
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Developing programs and legislation for law and criminal justice
reform
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Being a public spokesperson for the field of law
Priority Prosecutions
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Because they are political figures, prosecutors may respond to the
public’s demand for action on particular social problems such as:
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White collar crime
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High tech crime
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Environmental crime
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Career criminals
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Rape and sexual assault
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Public health
Community Prosecution
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A new prosecutorial strategy
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Recognizes that crime reduction is built on community partnerships
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Prosecutors need to do more than try cases; they must become
problem solvers to improve the overall safety and well-being of the
community
Prosecutorial Options: Discretionary Decisions
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Bring a case to trial
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Dismiss the charges
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Later dismissal of charges or use of nolle prosequi
Factors That Influence Prosecutorial Decision Making
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Clogging the system
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Wasting time on minor cases when major cases need attention
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Wasting time on a case because it cannot be won
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Attitude of the victim
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Cost of prosecution
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Undue harm to suspect or victim
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Alternative sanctions available and appropriate
Criticisms of Prosecuting Attorneys
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Bargaining justice away by overreliance on plea bargaining
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Focusing on use of the office as a political stepping stone rather than
the duties of the job
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Failure to fully investigate some cases and dismissing others
Prosecutorial Misconduct
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Pressure for guilty convictions instead of justice
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Concealing or misrepresenting evidence
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Influencing juries
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Impugning witness testimony
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References to tainted evidence
Ethical Issues: Problems Involving the Professional
Responsibility of the Criminal Defense Lawyer
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Is it proper to cross-examine for the purpose of discrediting the
reliability or credibility of an adverse witness whom you know to be
telling the truth?
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Is it proper to put a witness on the stand when you know he will
commit perjury?
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Is it proper to give your client legal advice when you have reason to
believe that the knowledge you give him will tempt him to commit
perjury?
The Private Bar
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Most lawyers are not prepared for criminal work in law school
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Most criminal lawyers
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Work in overcrowded, physically unpleasant courts
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Deal with people who commit questionable acts
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Must try to put the most positive construction on the questionable
acts of their client
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Lawyers are sometimes unjustly identified with the client they serve
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Fee systems used to sometimes pay private lawyers can create a
conflict of interest
Indigent Defender Systems: Public Defender Systems
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Thought of as law firms with only criminals as clients
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Paid for with tax dollars
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Organized along county or state lines
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Serve 68% of the population
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Lawyers develop some expertise because of daily contact with the
criminal law
Indigent Defender Systems: Assigned Counsel Systems
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Two kinds of assigned counsel:
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Ad hoc assigned counsel system
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Coordinated assigned counsel system
System can suffer from:
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Unequal assignments
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Inadequate legal fees
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Lack of supportive services
Indigent Defender Systems: Contract System
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Grant of a specific amount given to a private firm or to a private
lawyer
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Grant is based on:
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Number of cases to be defended
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Estimated cost per case
May supplement services of a Public Defender’s Office
Indigent Defender Systems: Mixed Defender Systems
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Both public defenders and private attorneys are used in these
systems
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Used when:
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Public defender case load is too high
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A conflict of interest exists
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Necessary to supply co-defendants with separate counsel
Costs of Defending the Indigents
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$2.5 – 3 billion spent on indigent defense systems in the 1990s
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Some defendants pay a share of costs (called recoupment)
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Associated problems include:
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Caseload problems
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Lack of available attorneys
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Legislative restraints
Public vs. Private Lawyers – Which is Best?
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Conviction rates for indigent defendants and those with their own
lawyers were about the same in federal and state courts.
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Of those found guilty, those represented by publicly financed
attorneys were incarcerated at a higher rate than those defendants
who paid for their own legal representation.
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On average, sentence lengths for defendants sent to jail or prison
were shorter for those with publicly financed attorneys than those
who hired counsel.
Competent Counsel
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Reasonable Competency Standard:
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Counsel’s performance was deficient and serious errors were
made to effectively deny the presence of counsel guaranteed by
the Sixth Amendment
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Defendant must show that the deficient performance prejudiced
the case to an extent that the defendant was deprived of a fair
trial