The Role of Defense Lawyers and the Judicial System - Essay Example

Roles of Prosecuting and Defense Attorneys Introduction Prosecutors are government lawyers who conduct criminal proceedings on behalf of the government against groups or individuals. In most States, they are known as district attorneys. According to criminal justice intervention (n.d), duties of the prosecutors include notifying the victims of criminal charges, court dates, pre-trial diversion, victims’ right, plea agreement, charges in court schedule, time and the date of sentencing. They take legal action in both civil and criminal litigation. A good number of prosecutors are concerned in enforcing criminal laws and are responsible for proving that criminal defendants, whether charged with misdemeanor or felony charges, are guilty of committing offences. The job of a prosecutor includes issuing criminal charges against suspect. Criminal prosecutors usually present information to grand juries, which make a decision whether there is satisfactory proof to charge suspects. Prosecuting lawyers are also responsible for defending governmental bodies whether as defendants or as plaintiffs in civil law suits. They are assigned in the civil unit in prosecuting offices. Their cases engage a wide array of disputes, as well as tax, personal injury matters among others. They are also assigned to offer general legal advice to agencies and government officials. They execute such duties as reviewing legal documents for ordinances or helping officials draft proposed laws. According to Echaore-mcdavid (2007), prosecutors usually have demanding and complex job. They must see to it that the legal process is followed for all cases, which bear heavy caseload. There are various tasks that prosecutors must undertake while preparing for civil or criminal litigation. For instance, they interview the witnesses and gather physical evidence and other documents that support their cases. They also collect information about facts and records linked to their cases by conducting legal research. Prosecutors usually attend essential pretrial hearings and briefs, meet necessary court deadlines, prepare pretrial motions and conferences. They also build up strategies to put together the best case against the other party, and they are ready to demonstrate evidence for trials with legal documents. Public defenders on the other hand are criminal lawyers who provide legal counsel to the indigent (poor) and are government employees. Persons who commit a crime that is punishable by jail or prison have the constitutional right to a lawyer. If they cannot meet the expense of a private lawyer, the judge can appoint a public defender to stand for them. Like prosecutors, public defenders carry heavy caseload including clients charged with felony and misdemeanor crimes. They may be assigned to represent the developmentally disabled and mentally ill in civil commitment proceedings. Each defender is expected to defend their client and ensure that the client’s rights are not compromised (Echaore-mcdavid, 2007). As Jobdescriptionandduties.org (2011) records, attorneys’ main duties vary by such specializations as divorce, real estate, litigation, corporate law, fraud, tax, immigration among others. Echaore-mcdavid (2007) further states that duties of the public prosecutors may include performing legal research, attending hearing and arraignments, participation in jury members’ selection, assessing newly assigned cases, try court cases, among other duties. Public defender programs are customary at federal and at local state. In big municipal areas, the public defender may well be part of the county or the city government while they may be contracted to offer public defender services in countryside areas and small counties. Hemmens, Brody and Sphon (2009) state that defense attorneys in the American justice system have a special role to play. They have to do the best to protect rights and promote interest of their clients. Defense attorneys have no obligations like the prosecutors who represent the state and must seek the truth to attain justice. Defense attorneys generally have an ethical responsibility of defending their clients enthusiastically, even if they know that the client is guilty, while prosecutors might not condemn a person he or she believes to be innocent. Kittmer (2011) indicates that both the defense and prosecuting attorneys have extremely particular ethical duties to the court, their clients as well as the administration of justice. For American adversarial system of justice to work, it is deemed necessary that claim as well as action prepared by the government prosecutor be challenged and tested by an enthusiastic advocate. If the case presented by the prosecutor withstands such inquiry and is acknowledged beyond any reasonable doubt by jury or a judge, chances of an innocent person being convicted because of a crime he or she did not commit is well thought-out as remote. One expects that as soon as the police capture and brings a suspect to the court, the court process can be mobilized. This is not what happens. Nevertheless, for various reasons, a significant percentage of defendants are on no account brought to trial. Siegel (2008) states that prosecutors decide who they will bring to trial and who they will dismiss right away. The prosecutors’ rights are protected by the court to exercise discretion on legal case processing, to maintain that prosecutorial verdict can be controlled or restricted if a defendant proves beyond doubt that the prosecutor was discriminative in his or her decision. Charges may be dropped whenever conditions are not favorable for a conviction even if a prosecutor wants to pursue a case; this is known as nolle prosequi. The prosecutors may exercise a lot of discretion in felony cases, whether to charge the accused with an offense. Prosecutors do not do what they do just for money; they do it because they believe in it. Tragos (1999) asserts that prosecutors have staggering amount of authority and command above the lives of individual citizens. The problem comes in when they lose point of view and believe that they know everything. It is constitutionally and very crucial for the role of defense and prosecutor attorney to be different. Some prosecutors do not agree that difference should exist; they also cannot understand why the defense attorney can represent a guilty man. This view is not a surprise bearing in mind that greater part of the public cannot understand the role of defense lawyers and they believe that judicial system would do better without defense lawyers. Productiveness of conversation depends on the relationship between the attorney and the client. Attorneys who declare their role from the start of the relationship are usually in much better position to have this conversation. In addition a client who puts their trust in the attorney’s diligence are more likely to take note on attorney‘s warning and suggestion. According to Flowers (2010), even in the greatest of relationship, this is going to prove to be a “hard sell” – to convince a client not to testify. The defense attorney proposes to the client to withdraw their offer to testify, which causes a case to begin afresh with very unhappy prosecutor. The advocate will persuade the client to “come clean”. Incase the defendant does not correct the false statement he or she has made to the prosecutor; the attorney withdraws the case. As court officer, attorneys must in all circumstances cease from assisting the client in committing fraud. According to Lipman (2010), the Supreme Court in United States confronted Gentile v. Nevada state bar to the length where lawyers’ extrajudicial speech should be curtailed when balanced against the conflicting risks of inappropriate pressure on a pending trial. After two decades of this ruling, Gentiles continue the seminal judicial precedent in this area, but ethical trial publicity and behavioral values that was recognized remains less than clear. Debate over what restricts should be imposed on lawyers’ extrajudicial speech rests at the intersection of major constitutional, legal and ethical value. Adversarial judicial system integrity requires that dispute be determined in an open court based on the presented evidence, so as not to influence the proceedings, the parties are bound by the same rule of evidence and procedure. Landsberg (2002) points out that if harmful information is disclosed about a client to a defense attorney, they are bound never to disclose any information. On the other hand, prosecutors are mandated to protect public interest and if they get any information that can be used to harm defense client, then they can do so. Conclusion Defense attorneys are challenging to deal with but one must remember that they are the only people in the criminal justice system whose profession is to take care of the rights and needs of the defendant. Apparently, they generally have a harder job. In some instances for example, they may be representing 60 to 70 clients at one time. It is not their choice, but it depends on how much money the state and localities are offering to the lawyers. Public have bitter complain regarding defense attorneys- refusal to speak to their clients, abrupt conversation or unreturned call. This is so because attorneys usually have caseloads, resources problem and in most cases, different views of clients. Defense attorneys, due to many cases, may not remember their client names and faces. This is evidenced by what Landsberg (2002) states: that the U.S constitution requires that any person charged with a crime have a right to a lawyer irrespective of having resources to hire a lawyer or not. Sometimes these attorneys are assigned to represent indigent criminal defendants against their will. One thing that all defense attorneys practically share is that they defend poor criminal defendants, yet they have many cases and few resources and time to allocate to a single case. References Criminal Justice Intervention, (n.d). The Role of Criminal Justice System Personnel. Retrieved from http://www.letswrap.com/legal/cjsp.htm Echaore-McDavid, S. (2007). Career Opportunities in Law and the Legal Industry Career Opportunities. New York: InfoBase Publishing. Flowers, R. K. (2010). The Role of the Defense Attorney: Not Just an Advocate. Ohio State Journal of Criminal Law, 7, 647-652. Hemmens, C., Brody D. C., Spohn, C. C. (2009). Criminal Courts: A Contemporary Perspective. Thousand Oaks, California: SAGE. Jobdescriptionsandduties.org, (2011). Job Descriptions and Duties. Retrieved from http://www.jobdescriptionsandduties.org/ Kittmer, L. (2011). The Differences in the Ethical Obligations of Defense & Prosecuting Attorneys. Retrieved from http://www.ehow.co.uk/info_8364986_differences-obligations-defense-prosecuting-attorneys.html Landsberg, G. (2002). Serving Mentally Ill Offenders: Challenges and Opportunities for Mental Health Professionals . New York: Springer Publishing Company. Lipman, A. H. (2010). Extrajudicial Comments and the Special Responsibilities of Prosecutors: Failings of the Model Rules in Todays Media Age. Retrieved from http://business.highbeam.com/434805/article-1G1-253304413/extrajudicial-comments-and-special-responsibilities Siegel, L.J. (2008). Essentials of Criminal Justice. Stamford, CT: Cengage Learning. Tragos, G . E. (1999). Know Your Criminal Defense Lawyer. Stetson Law Review, 26, 199-203. Read More