Most people don’t understand the staggering difference between the responsibilities of a prosecutor and the responsibilities of a criminal defense lawyer. In a prior life, I was Chief of the Criminal Division for the United States Attorney’s office, and before that, I was Felony Division Chief for the State Attorney’s office. I have seen both sides of the coin.
A few years of maturity helped me understand why it is absolutely and constitutionally necessary for the role of a prosecutor and the role of the defense attorney to be totally different. Over the years many people have asked me the question, “how can a criminal defense lawyer represent a guilty man”. This question has not only been asked of me, but of my children and my wife. The vast majority of people can’t understand the defense lawyer’s role and believe the system would work better without our presence.
The prosecutor’s ethical responsibility is summarized in a comment to the rules regulating the Florida Bar which provides that “a prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” Ethical rules create a dual duty on the prosecutor “to guard the rights of the accused as well as enforce the right to the public.” Berger v. United States defined the role of a prosecutor as:
“One who represents a sovereignty whose obligation to govern impartially is as compelling as an obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that they shall win a case, but that justice shall be done. As such he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer … but while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
However, it is just as important for a prosecutor to understand the criminal defense function. In United States v. Wade, Justice Byron White wrote:
“If you can confuse a witness, even a truthful one, or make him appear at disadvantage, unsure or indecisive, that will be his normal course … In this respect as part of our modified adversarial system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for the truth.”
Judge Henry Friendly of the Second Circuit Court of Appeals once wrote, “Under the adversary system, the role of defense counsel is not to make sure the truth is ascertained, but to advance his client’s cause by any ethical means … causing delay and sewing confusion not only are his right, but may be his duty.”
The ability to abuse the system is much greater in the federal criminal justice system than in the state system. Because our state system has broad discovery rules which grant the ability to depose witnesses, and the ability to depose witnesses before trial, to subpoena documents, witnesses, and other material it is much harder for an unethical prosecutor to hide evidence or fail to disclose material. In the federal system, the prosecutors have to be particularly strong morally because of the greater power they exert. They can subpoena anyone in the country. They have law enforcement agencies willing to do their bidding anywhere in the country, and they have the power of the entire United States government behind them. Lastly, the federal prosecutor’s boss does not have to run for reelection.
The federal system does not allow for depositions, nor for the disclosure of witnesses, and only when extremely justified, will the court allow a defense lawyer to subpoena documents before trial. In this system prosecutors have to be even more vigilant to search inside themselves to make sure they are not letting personal zeal for a conviction interfere with their ethical duty to provide what the rules require.
Perhaps one way to alleviate the suspicion and tension between the prosecutor and the defense lawyer is more interaction outside of the courtroom. Out of necessity, state attorneys, as elected officials, are extremely accessible to and socialize regularly with the general population as well as criminal defense lawyers. This interaction begins to give the prosecutor greater understanding of the criminal defense lawyer and his role in the system.
It is always entertaining to watch a public official or a prosecutor, who had condemned the role of the criminal defense lawyer and his tactics repeatedly, call a criminal defense lawyer as soon as anyone starts investigating them. Thus, they instantly recognize the need and the right to effective representation. And who do they normally call? Usually they call the lawyer who gave them the most trouble, fought them the hardest, but ultimately gained their respect.