Eff's Rambles (Archive)


Ethics of Prosecutors and Defense attorneys

Perhaps this is a naive question, and maybe I should just try to find out for myself, but then I would not have another thing at present to put in this blog, at least not in the way I currently intend to express it, but I wonder if there is ever a contradiction, a kind of ethical inconsistency, in moving from one side of the law to another. I specifically refer to the transition, and becoming, of prosecutors into defense attornies. But I suppose the same concern could exist in the converse.

My understanding is that prosecutors, using the evidence available to them, deduce the guilt of suspects and try to construct and support arguments intended to convince juries of those suspects', now defendents, guilt. I also understand that defense attornies try to find flaws, of varying significance, in prosecutors' cases against their clients, and that defense attornies might have obligations to perform zealously on behalf of their clients, which could entail lower standards for reasonable doubt.

What I wonder about, and what troubles me, is that it seems, to me, that the acid test prosecutors might pose to their own assessments of suspects' cases are likely to be lowered in standards, so as to make those cases more easily classified as insufficient to demonstrate the guilt of the suspects, if prosecutors act in the capacity of defense attornies.

So I wonder if these prosecutors who become defense attorneys are conflicting with their own standards or could be becoming more fair when they move to the other side.


  • Have you perhaps forgotten the words that precede the charging of suspects in almost every legal drama show ever?

    Do we have enough evidence to charge this suspect?

    And once the evidence is gathered a prosecutor must then charge the suspect with a specific violation of the applicable legislation.

    I imagine it would be easier to be a defender because the prosecution lays the foundations upon which the defense is built. The defense follows the leads, the prosecution has to find them.

    In that little sideshow, the actual suspect becomes incidental to the drama. Kind of farcical really. If the evidence is obviously too strong and the prosecution's case well prepared, the defense rolls over and pleads mitigation. Easy.

    By Blogger Rat, at 8/25/2005 03:38:00 PM  

  • Those words were not in consideration at the time I was formulating the post, but I am not sure, and perhaps it is because of is how tired I am, if that is significant. I am not saying there is no prima facie, or better, case in the hypotheticals.

    What I am saying is that I would find it difficult to move from the standard that might accept circumstantial evidence and conclusions of guilt from that type of evidence, and better, to the standard that might facilitate easier acquittal, perhaps because of questionable rebuttals and the premiseses and predicates from which they are formed. It would be as if I were risking finding holes in the same arguments I used to put defendants away, if I were a prosecutor. I can rationalize that, but not wholly.

    I do think it is easier for the defense, if measuring by the effort to achieve victory, unless, as you say, the evidence is too overwhelming. But the defense supposedly has more flexibility than the prosecution does. But I believe the prosecution wins more. I would presume that most cases are mitigated.

    Ok, cannot say anymore today.

    By Blogger Eff, at 8/25/2005 08:44:00 PM  

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