Apr 3

The Differing Roles of Criminal Law Attorneys

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“I’m for truth, no matter who tells it. I’m for justice, no matter who it is for or against.” ~Malcolm X

Criminal defense attorneys and prosecutors have very different roles. Not in the obvious way – not just being on opposite sides, representing opposing parties. But rather by having different responsibilities and ethical duties.

We, defense attorneys, have a client. We must advocate for our client and resolve or try the case at our client’s direction. So long as we are not making frivolous claims (we are officers of the court, after all), we litigate the case to the best of our utmost abilities.

Prosecutors, on the other hand, have additional responsibilities. Pursuant to the Rules of Professional Conduct, prosecutors must help the defendant in certain situations. The prosecutor must make sure the defendant has been advised of his right to counsel and have an opportunity to get counsel; the prosecutor also cannot try to get a waiver of important rights from a defendant who does not have representation.

Further, prosecutors must give the defense any and all evidence or information the prosecutor knows that would lessen the defendant’s culpability. Defense attorneys, on the other hand, usually only have to disclose information to the prosecutor that we intend to use at trial.

When it comes to trial, only the prosecutor has the burden of proof. The defendant does not have to prove his or her innocence; it is up to the prosecutor to prove the defendant’s guilt. But despite this huge difference, both sides have the right to have a fair trial. Both sides have the right to present their respective cases and the right to a fair and impartial jury.

The above Malcolm X quote really applies to prosecutors. While defense attorneys must fight for their client essentially no matter what, prosecutors must fight for justice – whether that means dismissing a case or going to trial.