Prosecution and Defense Counsel (1988)

PROSECUTION AND DEFENSE COUNSEL
Kimberly Sebold
[Assignment: Yrite a comparative essay on two subjects of
your choice. Your purpose here is to add to your
reader's understanding of the subjects by allowing
him/her to view them in relation to one another. You are
not to judge the relative merits of one or the other; you
are simply to explain their interesting similarities or
differences.]
(1) Yhen one hears the term criminal court, one
immediately conjures up images of elaborate, formal
proceedings involving judges, juries, witnesses, and so
on. The formal criminal trial is an important aspect of
justice, but it is used in a small minority of cases.
The majority of cases are decided rather informally, by
negotiations between the attorneys in the case.
(2) Being a criminal justice major and studying the
laws and people's roles in the system have made me more
aware of what actually goes on. I learn the facts, not
television's fiction. By getting behind the scenes, I
can see the real life drama of two opposing, yet
cooperating, sides working to achieve justice.
(3) The defense counsel and the prosecuting attorney

share one main responsibility: they are to seek justice
and work so that justice is achieved. Their
responsibilities differ in that they do not represent the
same side in the criminal justice system. The prosecutor
represents the state, while the defense counsel
represents the accused. Yhile some of their duties
appear to overlap, it's their opposition in
representation that keeps them distinct.
(4) The prosecutor is a member of the practicing bar
and has become a public prosecutor by political
appointment or popular election. His/her general duties
include: enforcing the law, maintaining proper standards
of conduct as an attorney and court officer, developing
programs and legislation of law and criminal justice
reform, being a public spokesperson for the field of law,
and, a most frequent task, representing the government
while presenting the state's case to the court.
(5) To present the state's case to the court, the

prosecutor needs a lot of information. He/she has to
investigate the possible violations of the law and
determine what the charge will be. This requires
cooperation with the police in investigating a crime and
interviewing witnesses. Once the facts are available,
the prosecutor can figure out exactly what laws were
broken and on which laws there is enough evidence to make
a formal charge. In choosing criminal charges, the
prosecutor will usually choose more than one charge that
he believes he can win the case with because choosing
multiple charges leaves room for bargaining with the
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defense counsel.
(6) Another responsibility of the prosecutor is to

subpoena witnesses. That means to give out legal,
written orders to witnesses which tell them to appear in
court to give testimony, and to offer any and all
knowledge they have about the case and those involved
with it. In the pretrial hearings, where the charges anp
initial "information" are tested for probable cause, the
prosecutor has to represent the government. It is the
prosecutor's job to present enough evidence to establish
probable cause. In the motion procedures, when the court
states its specific findings, decisions and orders, the
prosecutor is again representing the government.
( 7) After the preliminary hearing, the prosecution

and defense engage in plea bargaining negotiations. Here
the two discuss which charges the accused will plead
guilty to for certain considerations. The advantage to
the prosecution is that a conviction is obtained without
the time and expense of lengthy trial proceedings.
(8) The prosecutor is, again, the government's

representative when the case is tried in open court. If
the accused is convicted (found guilty), the prosecutor
is allowed to recommend sentences to the courts. The
sentence can be in the form of a fine, incarceration, or
probation. The prosecutor will suggest the sentence that
he feels is just, but he will also consider what the
public wants. Since the prosecutors are appointed to
their position, they want to be sure to please society.
If the defense decides to appeal the case to a higher
court, the prosecutor is responsible for representing the
case.
(9) The defense counsel is the counterpart of the

prosecuting attorney in the criminal process. This
person is an attorney as well as an officer of the court.
As an attorney, he/she is obliged to uphold the integrity
of the legal profession and to observe the requirements
of the Code of Professional Responsibility in the defense
of the client.
(10) Yi thin the Code of Professional Responsibility

there is what is called adversary presentation, which
allows for the prosecution and the defense to appear as
adversaries in court, each presenting his or her own
side. The lawyers, particularly the defense attorney,
must strive to counteract a natural tendency on the part
of most people to judge too swiftly on the basis of an
initial reaction rather than to come to a conclusion that
has been fully proven. The attorney must prepare the
facts to enable the judge and the jury to hear the case
with an open mind and to give impartial judgments. It is
the duty of lawyers to their clients and to the legal
system to represent their clients zealously within the
boundaries of the law.
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(11) As an officer of the court, the defense counsel
participates with the judge, prosecutors and other trial
participants in a process of seeking to uncover the basic
facts and elements. The elements of a crime are the
words in the definition of a crime. Each element must be
proven to prove guilt beyond a reasonable doubt in court.
(12) Like the prosecutor, the defense counsel is
active in investigation of the incident and in
interviewing the client, the defendant, in all the
various prejudicial procedures such as arrest,
interrogation (questioning), lineup and arraignment,
where the accused is read the charges against him or her
and is asked how he or she will plead. The accused is
also advised of rights, after which the plea negotiations
take place. The advantage to the defendant may be in the
form of a reduction of the charges, a lenient sentence,
or, in the case of multiple charges, dropped charges.
(13) The defense counsel must carefully prepare the

case for trial, including the developing of tactics or
strategies to be used. The defense can file new motions
or argue against the prosecutor's legal motions with the
court. Along with the prosecutor, the defense provides
assistance with the sentencing. The defense, depending
on the severity of the offense, most likely will try to
get the client off on probation or at least argue for a
shorter term of incarceration. Vhenever necessary, the
defense counsel determines the appropriate basis for
appeal.
( 14) As one can see, both jobs are very demanding of

time, energy and resources. Both the prosecutor and the
defense counsel must oppose each other, yet also work
together, to obtain "justice for all."
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PROSECUTION AND DEFENSE COUNSEL

(3) The defense counsel and the prosecuting attorney

(5) To present the state's case to the court, the

(6) Another responsibility of the prosecutor is to

( 7) After the preliminary hearing, the prosecution

(8) The prosecutor is, again, the government's

(9) The defense counsel is the counterpart of the

(10) Yi thin the Code of Professional Responsibility

(13) The defense counsel must carefully prepare the

( 14) As one can see, both jobs are very demanding of

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