The Difference Between the Roles of the Prosecutor and the Defense Attorney - Research Paper Example

?Introduction For criminal justice system to be complete and effective, it is a must for it to have a prosecutor and a defense attorney, besides other important personnel such as the Judge, police, and probation officers among others (Grant, 2002). This is due to the fact that these two individuals facilitate the building of cases against offenders, which enables the judge to make informed judgments in a case based on the evidence presented as well as counter arguments brought forward by the defendant. This is in the light of promoting democracy, which is a fundamental principle, which ensures that human rights are protected at all times regardless of one’s social or economic status. One of these human rights is the right to a fair trial based on the rule of law, which considers one innocent of the charges brought against him, until proven guilty by a court of law (Grant, 2002). This paper is a critical evaluation of the differences between the roles of a prosecutor and those of a defense attorney in the course of administrating justice. Differences in the Roles of the Prosecutor and the Defense Attorney Once a crime has been committed and brought to the attention of the prosecutor, it is his role and responsibility to ensure that justice to the victim, whether an individual or the state, is achieved by ensuring that the offender is convicted through a fair court process. To achieve this, the prosecutor embarks on a mission to create a strong case, which is free of loopholes, so as to establish whether the offender deserves to face trial or not. In this context, he has to conduct thorough investigation, which may involve questioning and securing witnesses, collecting all the incriminating evidence for example by acquiring the services of experts such as those dealing with forensics, ballistics among others, depending on the type of crime in question, so as to support his or her case once the trial begins (Grant, 2002). This service may be provided by the investigative arm of the police, which is of high importance to the prosecutor. This is essential based on the fact that there are people in the society, who may wish to subject others to torture such that they will utilize their democratic rights to demand rogue justice through unfair means such as planting of evidence. Others may be motivated to do such things by political ambitions, whereby the prosecution may be used as a tool to discredit a person by displaying him as corrupt or inefficient. In this context, it is important to insist that a prosecutor is not always out to ensure that suspects are put to jail but also acts as an agent of truth. In fact, Rosenthal (n.d) indicates that the prosecutor has the role of ensuring that innocent people are not convicted. It is therefore the reason why he will not go ahead to prosecute a person if the evidence shows that the case is motivated by malice. However, it is important to note that this does not imply that the prosecutor has the authority to declare one innocent as that is the prerogative of the judge, but truth be told, if the case in his hands goes to court and he does not believe in its admissibility, then, he has the powers to convince the judge by declining to persuade him to find the suspect guilty of the offences. In the US criminal justice system, the prosecutors are considered to be so powerful due to the powers vested in them, which allows prosecutorial discretion and plea bargaining. This means that they can convince the defendant to plead guilty either as charged or to a charge of lesser magnitude after which he would plead with the judge for a lighter penalty than what is recommended (Fionda, 1995). This is a circumstance that has created controversy such that critics indicate the intention of proposing mandatory prosecution instead of what is currently in operation. The international criminal court (ICC), for example, is mandated through the Rome statute to prosecute perpetrators of crimes against humanity, genocide, and other war crimes, which may be perpetrated by individuals or groups in countries which are signatories to the statute. The Prosecutor, Luis Moreno Ocampo, cannot present cases to the court, which are below the above mentioned status. It is for this reason that he must first of all collect all the data regarding the circumstances, gravity and the manner in which his to be suspects are said to have fulfilled these requirements (Brandon, 2005). It is in this context that various groups, such as the human rights commissions, religious groups, government set commissions and other organizations of good will in the affected country, come in to provide basic ground for his investigations. However, he must conduct his own investigations to determine the credibility of information provided to him by these groups, so as to come up with a list of those with the highest responsibility in the committing of these crimes and if he finds that there is no sufficient evidence, then he would have no choice but to refer the cases back to the local courts of that country (Brandon, 2005). It is important to note that during this period, the suspects may be aware of the investigations or not depending on the publicity accorded to the case. After a prosecutor is through with the investigations and he finds that there is a case to answer, it is his role to serve an indictment i.e. to inform the courts officially that a person has committed a crime or multiple felonies. In this process, he produces all the necessary facts i.e. strengths and weaknesses of his accusations so that the court can decide on whether the information presented is enough to start a trial or more investigations are required (Heumann, 2000). In the ICC for example, the prosecutor is supposed to request for permission to issue summons or warrants of arrest but this can only be received after the pre-trial chamber, of the court, has indeed confirmed that the prosecutor has convinced the judges in the chamber that the case is admissible (Brandon, 2005). However, it is worth noting that at this point, the trial is yet to begin as these are preparatory stages of a long journey to the administration of justice. The prosecutor, after having filed the case, he has the responsibility of issuing summons or where applicable, he obtains a warrant of arrest, which gives him the power to bring in the suspect to stand trial at a court of law. It is at this point that he makes his case known officially to the suspect first by informing him why he or she is being arrested i.e. the charges leveled against him and also notifying the accused of his rights and privileges. In light of this, he ensures that the suspect is aware of the dates when the case hearings would take place such that there would be no inconveniences in case proceedings (Grant, 2002). Once the trial begins, the prosecutor performs his major role, which is to prosecute. In this context, he makes his opening persuasion speech, detailing why the accused is before the court and highlighting various aspects of his accusations such as time, date, venue and the tools used to commit the crime. By doing this, he makes the judge and the jury to be prepared to receive a well formulated and thoroughly investigated case, which will find the accused guilty of the charges. It is in this light that he will produce all the evidence implicating the accused and after which he calls witnesses to confirm his or her accusations by interviewing them (Grant, 2002). In the event that the defendant cross examines these witnesses, the prosecutor has the responsibility of defending them from unnecessary badgering, by beseeching the judge to offer his protection. Other than this, the prosecutor has the responsibility of interrogating witnesses brought forward by the defense attorney, in a mission to weaken their contribution in his favor. As earlier stated, the prosecutor cannot afford to allow doubt into his case as this makes it possible for the judge to rule in the favor of the defendant. For one to be incarcerated or to be found guilty, it must be on the basis that there is no reasonable doubt that he committed the crime. In order to conclude a case in a justifiable manner, it is always necessary for the person being charged to be given a chance to defend himself against accusations leveled against him or her. It may be worth noting that a prosecutor is a person who is an expert in law and therefore, he would be determined to apply this knowledge to convince the judges on the admissibility of his case. On the other hand, the accused person may be a lay man in the field of law such that he may not comprehend or understand the language being used and therefore, he deserves to have an equal representation i.e. defense attorney, who would be in a better position to bring in viable counter arguments in favor of the defendant. In this context, it may be true to say that he acts as a spokesperson of the defendant, unlike the prosecutor, who speaks on behalf of the state (Heumann, 2000). Unlike the prosecutor, whose main aim in a trial is to incriminate the accused, the defense attorney aims at protecting his client’s image by working hard to prove his innocence. This is the reason why he will go to the extent of conducting his own investigations regarding the accusations regardless of whether he will have to seek the services of experts, just as the prosecutor, but in this case he would be looking for ways to discredit the evidence brought forward by the prosecution (Heumann, 2000). Similarly, he will find his own witnesses to issue statements such as those proving that the accused may have been in another place other than the scene of crime at the time he is purported to have committed the felony. In this context, he would be looking for the slightest opportunity to cast doubt in the minds of the jury so as to either mitigate the gravity of the offence or to totally negate what has already been put forth. In this context, it is worth noting that the defense attorney is under no obligation to willingly provide the truth and this is the reason why he will defend a criminal even if it is within his knowledge that his client is actually guilty of the offence Rosenthal (n.d). However, he has the responsibility of doing so if he has reason to believe that his client is planning to commit another crime maybe, which could be a threat to national security. In the case that he evaluates the charges and the evidence presented and finds that eventually the defendant would be found guilty, the defense attorney may take the responsibility of entering into a plea bargain after advising his client on merits and demerits of not doing so. In this context, he can negotiate with the prosecutor for example if the charge against his client is murder, so that it can be reduced to manslaughter, which carries a lesser charge than that of murder, which is capital punishment in most of the societies (Fionda, 1995). Conclusion The prosecutor and the defense attorney are two essential participants in the criminal justice system. The prosecutor on one hand has the responsibilities which include and not limited to; investigating, indictment, issuing summons, dismissing cases using his prosecutorial discretion powers, building cases by the way of providing evidence and witnesses, informing the defendant on the trial schedule as well as acknowledging and accepting plea bargains. The defense attorney on the other hand has a major role, which is to prove his client’s innocence. To achieve this, he can investigate the charges or he can weaken the prosecution by initiating debates and interrogating prosecution witnesses in order to cast doubt in the mind of the judge. References Brandon, B. (2005). The Prosecution of International Crimes: A Practical Guide to Prosecuting ICC Crimes in Commonwealth States, Commonwealth Secretariat Fionda, J. (1995). Public Prosecutor and Discretion: a comparative Study. USA: Oxford University Press Grant, D. (2002). The Courts in Our Criminal Justice System, Prentice Hall Heumann, M. (2000). Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys, University Of Chicago Press Rosenthal, J. (2011). The Role of a Prosecutor and Criminal Defense Attorney. Retrieved 17 March 2011 from Read More