I distinctly recall hearing some legal analyst or other (during the OJ trial, IIRC) that the job of the defence counsel is to help the client beat the rap, while the job of the prosecution is merely to show the truth and let justice be served. This makes a lot of sense (not necessarily the defence part, the prosecutor part) - the prosecutor is a representative of the government and the people, who should have no interest in anything other than the truth, even if false convictions can be obtained.
But now I read, in a book called See You on the Radio by Charles Osgood, that in Torrance, CA a prosecutor named Todd Rubenstein had two defendents in a shooting being tried before separate juries (one had talked to the police and one had not). He told each of the juries that their defendant was the one that had fired the fatal shot, and convinced both of them.
Osgood says “The conclusions are mutually exclusive. But legally, says prosecutor Rubenstein, the separate juries heard the strongest case that he could make against each of the defendants. That’s what his job is, Rubenstein says: to make the strongest case, each independent of the other.”
Osgood quotes “Laurie Levenson, a law professor at Loyola Marymoount University, who’s also a former federal prosecutor” who “says that from a legal point of view, you may be able to explain this”.
But this seems to contradict my earlier assumption about the role of the prosecutor. Which is correct?
Technically it’s justice that the lawyer is supposed to be upholding. That goes for both prosecuter and defender.
That doesn’t mean the prosecutor in the case you sited wasn’t necessarily following that. The point of the matter is that if the guy is guilty, the guy is guilty, and it is up to the prosecutor to convince the jury to convict. While s/he may do that by suggesting such-and-such a scenario , the fundamental arbiter for determining what happened for the burden of proof is the jury and not counsel. The law is set-up so that a prosecutor may wish to use rhetorical techniques to aid his case, and in fact, it is his duty if he believes that is what justice demands, to use such a thing.
In effect… the prosecutor, acting on the presumption that they will prove guilt, can act to obtain such an opinion from the jury by suggesting. (After all, a closing argument is an argument… not evidence of fact. Justice is a different beast from truth).
All that’s required of a lawyer is that they work to the best of their ability to uphold justice as defined by the law.
Moreover, technically, if the defense counsel believes his client is guilty beyond the burden of proof, he should only not allow his client to enter a guilty plea, and if the client insists upon not-guilty, he is ethically required to step-down from the case. This is true at any time during the trial.
The job of the prosecutor is to ensure (as best they can) that justice is served. That does not mean going all out for a conviction.
The prosecutor in Torrance may have been misleading a jury, if it were clear that the second accused had not fired the shot. If it were unclear, then he is still on shaky ground, in my opinion.
JS, I am afraid that you are totally incorrect about a defence lawyer stepping down if he believes his client is guilty. What the defence counsel (or, indeed, the prosecutor) believes about the guilt of the accused is entirely irrelevant to a case. It is the jury’s duty to make a decision about guilt.
If the accused has admitted his guilt to his defence counsel, then that is a different matter. The defence counsel cannot then lead a false defence. He is still entitled to challenge and test the prosecution case to ensure that the evidence meets the required standard, however.
IMHO while it is true that prosecutors represent the people and that justice is served, the truth is a casualty when politics get involved in Justice.
I remember, a couple of years ago, a race for an attorney general in San Francisco turned nasty when the non incumbent candidate accused the incumbent prosecutor of having fewer convictions than his predecessor. (Of course a booming economy then was not a reason for fewer convictions ;)) Elsewhere, the pressure to find the latest serial killer, or to pacify a very angry public when a scandal blows, makes truth stretching or ignoring exculpatory evidence very tempting to the prosecutor. It would be stupid to the defense not to assume this, especially in a high profile case.
Remember Kenneth Star? When he was presenting his case for impeachment I think Barney Frank told Star about the evidence that it was missing in the report, evidence that pointed that the Clintons were not guilty in the Whitewater case and others. Essentially Star responded that he was the independent prosecutor, not an independent exonerator, so there.
Indeed, Prosecutors will try to win a conviction, that is his/her job. But the analyst’s remarks that prosecutors “merely show the truth and let justice be served” are silly in light of what happens in the real world.
We have to remember all those already tried cases were a guy in death row or in a life sentence is freed because of DNA evidence or other facts that inconveniently show that the guy is innocent. You can bet that in those cases a prosecutor was not willing to help the defense with all the evidence it had or had the power to obtain. Unless there are discovery laws involved it is not the job of the prosecutor to give away any exculpatory evidence. Of course I believe this is not fair at all.
On the other hand, I do not believe justice was served in the Torrance case. In this case legislators need to pass laws that will permit prosecutors to use the conclusions of one case as evidence in the other.
The prosecutor’s job is that justice be served. If the prosecutor doesn’t believe the defendant is guilty, they will usually drop the case.
But this isn’t a perfect world, and there are certainly cases where the prosecutor goes forward to try to convict someone who they have serious doubts about. It looks good if a prosecutor gets a lot of convictions. OTOH, this is balanced by the fact that if a prosecutor goes forward on a case he’s unlikely to win, and loses it, it looks bad for him.
The logic of split trials, BTW, is something else. Up here we had a case where two defendants were tried for murder. Each got off, claiming in the separate trials that the other person did the deed.
I don’t know any specifics about the Torrance case, but I can see a rationale for the prosecutor’s decision beyond just trying to rack up convictions. He might not have known which of the two defendants fired the shot. He would then either have the choice of prosecuting both of them for the shooting, prosecuting neither, or randomly picking only one to prosecute. The last choice gives you a 50/50 chance of letting a murderer go unpunished, the middle choice a 100% chance. Prosecuting them both for the same crime guarantees that one of them is being falsely accused, but given felony murder laws, he might have thought justice was best served by that choice.
Prosecutors are not witnesses. They don’t tell the jury what happened. They argue that the evidence the jury has already heard from witnesses suggests certain conclusions.
This may seem like a subtle point, but it’s not. If the evidence is ambiguous, or could reasonably suggest either accused as the shooter, then it is legitimate to argue two different interpretations of the evidence to two different juries in two different trials.
However, this ability is not unfettered. There is a principle called equitable estoppel which prevents a party from adopting a new position that contradicts a previous position when allowing the new position to be adopted would unfairly harm another party who has relied on the previous position to his or her detriment. In other words, the prosecutor may not be able to switch horses in mid-trial and argue a theory that the second defendent was the shooter, if he had previously adopted a contrary position and the second defendent relied on it.
This is merely a brief overview, and there are many nuances to equitable estoppel - for example, some jurisdictions require that original position was a misrepresentation which was being denied in the new position. In the case described in the OP, it would seem that no one relied on the prosecutor’s position to their detriment, and it’s doubtful that equitable estoppel would apply; I merely mention it here because that’s the liberal sort of guy I am.
Since this is such a technical requirement, perhaps you can provide a cite to the canons of ethics, a state’s rule of professional conduct, or case law that requires this.
My entire legal career seems to have been handled improperly.
If the prosecutor doesn’t believe the defendant is guilty, then ideally (and ethically I suppose), the case is dropped. Justice is not served by securing a conviction against an innocent party.
Yet, this is an imperfect world. While the vast majority of prosecutors are dedicated, hardworking and sincers professionals, there remain some who will still proceed with a trial and try to get a conviction. There’s countless reasons this happens. Ego, spite, revenge, ego, delusions of grandeur, hero complexes, ego, misguided sense of justice, payback for favors called in, political gain, ego, racism, cover-ups, power tripping, ego, etc.
I’ve seen and heard it all. Mrs. Tonk was a prosecutor for several years before going into private practice doing criminal defense.
This is like a ‘Law and Order’ episode. The the two villians lure a delivery man to deserted street for a thrill killing. Each took turns firing(with the same gun) at the victim, who’s car was still moving down the street(the killers pursued foot) . A witness down the street sees 1 villian firing into the car, but doesn’t see the other. Witness was too far away to identify either villain. Villains’ get seperate lawyers, each argue their client had ‘change of heart’ at the last second and the other suspect did the deed.
Only one of the villains hit their victim. Neither knew, or would admit, who actually hit the victim. But is the villain that fired and missed somehow less heinous? Is it injustice that both should be held to the same punishment? Both had murder in their hearts, both agreed to commit the crime together ect, ect…Both were equally guilty.
From the Texas Code of Criminal Procedure, Article 2.01 Duties of district attorneys
I haven’t yet found a link to this on-line.
So far, then a prosecutor’s primary duty is to see justice is done. You’ll note that this section doesn’t immortalixe the joke that anyone can convict the guilty, only a real prosecutor can convict the innocent.
GIGObuster, this is wrong.
Even without particularized rules of discovery, the Constitution demands that prosecutors provide to the defense exculpatory evidence. It has something to do with Due Process. Further, the Supreme Court has several cases on the subject. In deciding whether a prosecutor has turned over exculpatory evidence, prosecutors are deemed to know all of the evidence the State knows. So, even if the police hide evidence from the prosecutor, Due Process means that the prosecutor knew it and should have turned it over.
Some cases on the subject:
Brady v. Maryland 373 U.S. 83 (1963); Kyles v. Whitley, 514 U.S. 419 (1995); Strickler v. Greene, 527 U.S. 263 (1999).
Some prosecutors are going to seek convictions on dodgy evidence - but they are breaking some pretty important rules in the process.
Thank you Liebfels, I am curiously glad I was wrong in that point. I thought that I would never find even yet another reason why to hate Kenneth Star.
And when I remembered how ALL the republicans applauded this sorry prosecutor after that presentation!
I guess I swallowed that idea, about the prosecutor not needing to give exculpatory evidence, out of the TV coverage that in essence said that Star could do that.
TV Pundit paraphrase from that day:
“Why is this right? Because Star said so!!!” :rolleyes:
This is similar to a point made by JS Princeton and cmburns, and my comments apply to all three.
What you guys seem to be saying is that if there is some ambiguity then a prosecutor is justified in going for a conviction even without certainty. IOW, that if a prosecutor is 50% sure in his own heart that so-and-so has perpetrated a crime, he is justified in going all out to persuade a jury that he has indeed done so. This seems to contradict the notion that his job is to persue justice. On the chance that this innocent man will rot in jail because you’ve falsly convinced a jury that he is guilty, you have committed an injustice instead.
I am aware that it is not the job of the prosecutor to determine guilt. But the prosecutor’s arguments contribute to the jury’s determination. It is quite possible for a jury to err in making their final judgement, and to the extent that the prosecutor has contributed to this error, he has committed a travesty.
GIGObuster
I think your point about Ken Starr is invalid. Starr’s report to Congress was similar to a recommendation for an indictment, it was not a prosecution. His job was to show whether there was a basis for an indictment and trial. As such, evidence of guilt is more relevant than evidence of innocence - the former are the basis for the impeachment. The relevance of the evidence of innocence is in if they are strong enough to convince the prosecutor that the guy actually is innocent. Starr did decide this on many of the charges against Clinton.
(Also, there is a world of difference between withholding evidence from the defence, and merely failing to make note of such evidence in your report).
Also your statement that
is also not applicable, for similar reasons. In the examples that you cite, the prosecutions generally believes that the guy really is guilty, and are not giving over evidence that will help a guy who is (in their eyes) guilty beat the rap. This is not similar to a case where the prosecutor believes the guy to be innocent (or aren’t sure) but go for the conviction anyway because “that’s our job”.
[Moderator watch ON]
Just a reminder, folks: This is GQ, not GD, and the question is a matter of legal theory, not ideals. It’s probably best if we leave Ken Starr out of this discussion entirely, as he’s liable to drag this thread over into GD.
IzzyR, I think your first view of how a prosecutor should act is a better assessment of a prosecutor’s role. Therefore, a prosecutor deliberately making mutually exclusive jury arguments would be wrong. But, before I would want to comment on the particular case you mention, I’d want to know exactly what the prosecutor said.
Still, there will likely always be examples of people not following the rules.
I’d also like to expand on the hijack of exculpatory evidence. The State must turn over to the defense any evidence that tends to suggest a defendant didn’t do it. Even in cases where the person charged is the person who did it, there might be enough muddiness that some exculpatory evidence exists. The cases that I cited earlier have some pretty good examples of evidence hidden from the defense that should have been given to the defense.
Strangely, prosecutors don’t have a duty to look for exculpatory evidence.
I’m not sure what should be done where a prosecutor only half believes in guilt. In a situation like this, it might be appropriate to let a judge sort it out. I think the distinction will be in what is meant by “going all out to persuade a jury.” If this means telling them things that aren’t true or supported by the evidence, then it wuld be an injustice. You might see such things where the crime is so heinous that a jury would convict anyone for it. But, if it means presenting the known facts to a judge or jury and allowing them to do their job of assessing the facts, it likely wouldn’t be wrong.
I think another area that seems grey is when the defendant might have a credible defense, such as self-defense. It probably isn’t wrong to prosecute an assault if it really occurred, but then allow the defendant to present his defense. As in so many legal things, it will depend.
100% certainty isn’t required, but the prosecution must stick to the facts and to one story about the facts.