The Role of the Prosecutor

• ·         Has the power to charge or not to charge a person with a crime.
• ·         Can make bail recommendations.
• ·         Represents the state in the prosecution of criminal cases.
• ·         Acts as legal advisor to the grand jury.
• ·         Has discretion in plea bargaining.
• Makes sentencing recommendations

• ·         Prosecutions in Federal Courts are conducted by the U.S. Department of Justice.
• ·         Headed by the U.S. Attorney General.
• ·         The Solicitor General represents the executive branch before the Supreme Court.

U.S. Attorneys

• ·         Serve as the nation’s principal litigators under the direction of the attorney general.
• ·         Part of the U.S. Department Of Justice.
• ·         93 U.S. Attorneys.
• ·         Appointed by, and serve at the discretion of, the president, with the advice and consent of the senate.
• 47,000 Assistant U.S. Attorneys

U.S. Attorney’s Responsibilities

• ·         Prosecution of criminal cases brought by the federal government.
• ·         Initiation and defense of civil cases in which the United States is a party.
• ·         Collection of certain debts owed to the federal government.

State Attorney Generals

• ·         Considered the State’s Chief Law Enforcement Officer.
• ·         Provide legal advice to other state agencies and represent the state in court when state actions are challenged.
• ·         Authority over local prosecutors is limited.

Chief Prosecutors

• ·         Chief law enforcement official in the community.
• ·         District Attorneys, County Attorney, State’s Attorney, Prosecuting Attorney, etc.
• ·         Elected officials (95% of the time).
• Deputy or Assistant District Attorneys try cases

Local Prosecutors

• ·         City Attorneys, solicitors.
• ·         Approx. 5,700 nationally.
• ·         Represent the locality.
• ·         Responsible for preliminary stages of felony cases as they are processed in the lower courts.
• ·         Try misdemeanors, infractions, minor civil cases.

The Profile of a Typical Assistant District Attorney

• ·         Hired immediately after graduation from law school or after a short time in private practice.
• ·         Usually attended local law schools.
• ·         Hired on the basis of party affiliation and the recommendations of elected officials.
• ·         Most serve an average of 2 to 4 years before entering private practice.

Office Structure

• ·         Vertical Prosecution: one prosecutor is assigned responsibility for a case from intake to appeal.
• ·         Horizontal Prosecution: prosecutors are assigned to specific functions, such as initial appearance, charging, preliminary hearing, grand jury, trial, or appeal.

Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the Assistance of Counsel for his defense. 

The Right to Counsel Cases

• ·         Powell v. Alabama: Indigent defendants in a capital case in state court have a right to court-appointed counsel. 
• ·         Johnson v. Zerbst: Indigent defendants in federal court are entitled to court-appointed counsel.
• ·         Gideon v. Wainwright: Indigent defendants charged with a felony are entitled to the services of a lawyer paid for by the government.
• ·         Douglas v. California: Indigents have a right to court-appointed counsel during the first appeal.
• ·         In re Gault: Extended Gideon to juveniles.
• ·         Argersinger v. Hamlin: Limited the right of non-felony defendants to have court-appointed counsel.
• ·         Alabama v. Shelton: Indigent entitled to a court-appointed attorney even if facing only a suspended jail term for a minor charge.
• Brewer v. Williams: defendants have a right to counsel once adversarial proceedings have begun

Lawyer Required:

• Initial appearance
• Bail
• Preliminary hearing
• Arraignment
• Interrogation (post-indictment)
• Line-up (post-indictment)
• Plea bargaining

Pre-Trial Stages

No lawyer Required:

• Crime
• Arrest
• Charging
• Grand jury (no lawyer allowed)
• Line-up (pre-indictment)

Ineffective Counsel

• ·         McMann v. Richardson: An indigent defendant has the right to effective counsel.
• ·         Strickland v. Washington: Set objective standard of reasonableness of the effectiveness of counsel.
• ·         Self-Representation
• ·         Faretta v. California: Defendants have the right to represent themselves.
• ·         Pro Se: Latin for “in his or her own behalf.”
• ·         Must demonstrate to the court the ability to conduct their defense.
• ·         McKaskle v. Wiggins: Court may appoint standby counsel to consult when the defendant chooses to represent himself.

The Defense Attorney

• Expected to be an advocate for the client’s case, arguing for legal innocence.
• Officer of the Court.
• Cannot deliberately mislead the court by providing false information.
• Cannot knowingly allow the use of perjured testimony.

Indigent Defense

• Assigned Counsel
• Contract System
• Public Defenders

Assigned Counsel

• ·         Appointment by the court of private attorneys from a list of available attorneys.
• ·         Appointed by the judge on a case by case basis.
• ·         Used in half of the U.S. Counties, but serves less than 1/3 of of the nation’s population.
• ·         Predominates in small counties.

Contract System

• ·         Bidding by private attorneys to represent all criminal defendants found indigent during the term of the contract in return for a fixed payment.
• ·         Used in small counties.
• ·         Criticisms of the contract system include that it will lead to a lower standard of representation and that the private bar will no longer play an important role in indigent defense.

Public Defender System

• ·         Public or private non-profit organizations with full- or part-time salaried staff who represent indigents in criminal cases.
• ·         Started in Los Angeles in 1914.
• ·         Used in medium to large cities/counties
• ·         Represents approximately 70% of all indigent defendants.
• Advantages include financial benefits, continuity,  consistency, and an intimate knowledge of informal norms of the local court system