The Prosecution and the Defense Chapter 10

District Attorney County Attorney State’s Attorney U.S. Attorney What Titles Do Prosecuting Attorneys Have?

The prosecutor is either elected or appointed 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 The office of local prosecutor is often seen as a political stepping stone Politics and Prosecutors

Enforcing the law Representing the government Maintaining proper standards of conduct as an attorney and court officer Developing programs and legislation for law and criminal justice reform Being a public spokesperson for the field of law Duties of the Prosecutor

Because they are political figures, prosecutors may respond to the public’s demand for action on particular social problems such as: White collar crime High tech crime Environmental crime Career criminals Rape and sexual assault Public health Priority Prosecutions

A new prosecutorial strategy Recognizes that crime reduction is built on community partnerships Prosecutors need to do more than try cases; they must become problem solvers to improve the overall safety and well-being of the community Community Prosecution

Bring a case to trial Dismiss the charges Later dismissal of charges or use of nolle prosequi Prosecutorial Options: Discretionary Decisions

Clogging the system Wasting time on minor cases when major cases need attention Wasting time on a case because it cannot be won Attitude of the victim Cost of prosecution Undue harm to suspect or victim Alternative sanctions available and appropriate Factors That Influence Prosecutorial Decision Making

Bargaining justice away by overreliance on plea bargaining Focusing on use of the office as a political stepping stone rather than the duties of the job Failure to fully investigate some cases and dismissing others Criticisms of Prosecuting Attorneys

Pressure for guilty convictions instead of justice Concealing or misrepresenting evidence Influencing juries Impugning witness testimony References to tainted evidence Prosecutorial Misconduct

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? Is it proper to put a witness on the stand when you know he will commit perjury? 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? Ethical Issues: Problems Involving the Professional Responsibility of the Criminal Defense Lawyer

Most lawyers are not prepared for criminal work in law school Most criminal lawyers Work in overcrowded, physically unpleasant courts Deal with people who commit questionable acts Must try to put the most positive construction on the questionable acts of their client Lawyers are sometimes unjustly identified with the client they serve Fee systems used to sometimes pay private lawyers can create a conflict of interest The Private Bar

Thought of as law firms with only criminals as clients Paid for with tax dollars Organized along county or state lines Serve 68% of the population Lawyers develop some expertise because of daily contact with the criminal law Indigent Defender Systems: Public Defender Systems

Two kinds of assigned counsel: Ad hoc assigned counsel system Coordinated assigned counsel system System can suffer from: Unequal assignments Inadequate legal fees Lack of supportive services Indigent Defender Systems: Assigned Counsel Systems

Grant of a specific amount given to a private firm or to a private lawyer Grant is based on: Number of cases to be defended Estimated cost per case May supplement services of a Public Defender’s Office Indigent Defender Systems: Contract System

Both public defenders and private attorneys are used in these systems Used when: Public defender case load is too high A conflict of interest exists Necessary to supply co-defendants with separate counsel Indigent Defender Systems: Mixed Defender Systems

$2.5 – 3 billion spent on indigent defense systems in the 1990s Some defendants pay a share of costs (called recoupment) Associated problems include: Caseload problems Lack of available attorneys Legislative restraints Costs of Defending the Indigents

Conviction rates for indigent defendants and those with their own lawyers were about the same in federal and state courts. 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. On average, sentence lengths for defendants sent to jail or prison were shorter for those with publicly financed attorneys than those who hired counsel. Public vs. Private Lawyers – Which is Best?

Reasonable Competency Standard: Counsel’s performance was deficient and serious errors were made to effectively deny the presence of counsel guaranteed by the Sixth Amendment Defendant must show that the deficient performance prejudiced the case to an extent that the defendant was deprived of a fair trial Competent Counsel