The Prosecution and the Defense

1. Chapter 10 The Prosecution and the Defense

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

3. Politics and Prosecutors • 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

4. Duties of the Prosecutor • 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

5. Priority Prosecutions • 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

6. Community Prosecution • 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

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

8. Factors That Influence Prosecutorial Decision Making • 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

9. Criticisms of Prosecuting Attorneys • 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

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

11. Ethical Issues: Problems Involving the Professional Responsibility of the Criminal Defense Lawyer • 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?

12. The Private Bar • 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

13. Indigent Defender Systems: Public Defender Systems • 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

14. Indigent Defender Systems: Assigned Counsel 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

15. Indigent Defender Systems: Contract System • 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

16. Indigent Defender Systems: Mixed Defender Systems • 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

17. Costs of Defending the Indigents • $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

18. Public vs. Private Lawyers – Which is Best? • 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.

19. Competent Counsel • 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