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Why is it that the legal profession is split between prosecutors and defense lawyers? I ask this question in two senses: first, historical - how did it come abo

by rntz 8y ago

Why is it that the legal profession is split between prosecutors and defense lawyers? I ask this question in two senses: first, historical - how did it come about? and second, moral - what is the justification? After all, doesn't this division promote exactly the kind of tribalism based on prejudice (an assumption of the guilt or innocence of the defendant) we wouldn't want in a legal system - the kind of tribalism this article points out when it talks of "the brotherhood of prosecutors"? Why don't we require those who prosecute to also sometimes defend; those who defend, also to prosecute?

darkerside 8y ago
In response to your second question, it's been said the American justice system is the worst possible justice system, with the exception of all of the world's other justice systems. I think the root problem is that the world is not fair and never will be. Justice (like health/immortality) is an ideal to be pursued, not a destination to be reached. The system we have is at least a somewhat reasonable approximation for fairness in that both sides have their points borne out by an invested party.
- sametmax 8y ago
  I don't know if anybody ever said that. And if somebody ever did, the person apparently haven't travelled much.
  - hsienmaneja 8y ago
    Which countries have superior judicial systems and why?
    - alain94040 8y ago
      Well, for one there is the whole common law vs. civil law issue. Most people on HN would agree that a logical, consistent, codified legal system should be superior to an ad-hoc, bazaar-style system.
    - sametmax 8y ago
      The burden of proof is for op for making such a bold, generalized claim. Can op brove that the us system is superior to the one in canada, france, the uk or germany ? Good luck.
  - citizenkeen 8y ago
    https://richardlangworth.com/worst-form-of-government https://richardlangworth.com/worst-form-of-government
    - sametmax 8y ago
      That's my point, since it's not the original quote and "Democracy" is not a country.
- ska 8y ago
  "American justice system is the worst possible justice system, with the exception of all of the world's other justice systems" That's a reworking of a quote attributed to Winston Churchill : "Democracy is the worst form of government, except for all the others". Not a sentiment typically attributed to the US justice system. As a justice system, the US is one of several with roots in English common law, and has its variant strengths and weaknesses compared to the others.
deleted 8y ago
[deleted]
cortesoft 8y ago
It is all part of what is known as the 'Adversarial System' that we use for our legal system. There are lots of arguments for why it is used, and in fact, one of the main purposes is to mitigate that kind of 'tribalism' you describe. The alternative system is known as an 'inquisitorial system', and puts the state in charge of everything. By explicitly acknowledging that the defense and prosecution are working against each other, you can help make sure that the motivations are clear and not misleading. https://en.wikipedia.org/wiki/Adversarial_system https://en.wikipedia.org/wiki/Adversarial_system
- alain94040 8y ago
  Adversarial is good. What the OP may be suggesting is: take a pool of lawyers, and have them be either prosecutors or defense lawyers, on any given day. It has some practical issues (defense lawyers are not paid by the state, prosecutors are).
  - janzer 8y ago
    From what little, and indirect, contact I've had with the US criminal justice system my impression is most defense lawyers are paid for by the state (e.g. the public defenders office). A quick search turns up this[1] report from 2000 that says: Over 80% of felony defendants charged with a violent crime in the country’s largest counties and 66% in U.S. district courts had publicly financed attorneys. Having said that, the report is from 2000 and it seems the data is from the mid to late '90s. So things may have changed since then but I don't see any evidence of that. I'm not sure that combining the prosecutor's and public defender's office would work, but having a system where the lawyers end up switching between prosecution and defense cases does seem like it may help avoid pushing them into extreme views for either side. 1. https://www.bjs.gov/content/pub/pdf/dccc.pdf https://www.bjs.gov/content/pub/pdf/dccc.pdf
  - secabeen 8y ago
    Actually, most defense lawyers are paid by the state too: > At felony case termination, court-appointed counsel represented 82% of State defendants in the 75 largest counties in 1996 and 66% of Federal defendants in 1998. https://www.bjs.gov/content/pub/pdf/dccc.pdf https://www.bjs.gov/content/pub/pdf/dccc.pdf
dragonwriter 8y ago
> Why is it that the legal profession is split between prosecutors and defense lawyers? Criminal law (not the whole of the legal profession) is split between those things because either you work for a public prosecutor or you don't; it's not at all uncommon for people to do both over a career, but outside of some special cases, you wouldn't do both as part of the same job (the military justice system is an exception, here.) EDIT: Actually, I think the parenthetical above is wrong; I think all the military branches have a separate offices for prosecutors and defense counsel within their respective JAG Corps.
- gamblor956 8y ago
  You had it correct pre-edit. The JAGs requires its officers to serve in multiple roles. Generally, they end up doing prosecution, defense, and both sides of civil litigation based on the current needs of their respective branch. Very few JAGs are permitted the opportunity to specialize; generally you have to either be amazing at that particular practice area or be politically connected.
  - dragonwriter 8y ago
    > Generally, they end up doing prosecution, defense, and both sides of civil litigation based on the current needs of their respective branch. I know that they ended up doing that, and I thought it was a fairly dynamic movement between roles. But the quick research I did indicated judge advocates are assigned to particular offices, and that it while the way roles were divided between various offices was different in each service, the criminal prosecution and defense functions were consistently in different offices, which would suggest that the role changes were more like a change of assignment within the service than different tasks within he same assignment. But, yeah, I'm going on pretty shallow information there.
nradov 8y ago
There's no split. They're all members of the same Bar associations, go to the same continuing legal education seminars, read the same legal journals, and meet up for drinks after the trial. Prosecutors frequently leave their jobs to become defense attorneys, and vice versa. Defense attorneys will do their best even when they assume the client is guilty; they're ethically required to do so, and they get paid the same either way.
- wahern 8y ago
  The caseloads of public defense attorneys (particularly in historically segregated states) are significantly more burdensome than that of prosecutors. Furthermore, prosecutors have access to free investigation services--the cops--whereas defense attorneys, particularly the overloaded ones, don't have much if any budget for that kind of work. Sometimes they'll pay out-out-pocket to track down witnesses using private investigators, but for obvious reasons that doesn't scale. Some cities like San Francisco have laws that enforce rough parity in budgeting and caseload, but even then public defenders are at a huge disadvantage (e.g. prosecutors benefit from the police budget). For practical reasons there's no way to address this adequately. The underclass is too numerous, and disparity in wealth too great, to think we can fix this administratively. The best first step is to make the stakes less severe by lowering penalties. Not everything needs to be a 1st degree felony. The next step is to be more consistent--pursue misdemeanor charges and lesser felonies more vigorously so that outcomes are more consistent, regardless of the wealth or stature of the client. Tweak the system so that it will tend toward more equal outcomes, rather than trying to brute force it.
mjw1007 8y ago
It certainly doesn't have to be that way. In the UK barristers who both prosecute and defend are common (though perhaps less than they once were).
Digory 8y ago
For the most part, prosecutors are government employees or even elected officials. It would be difficult to defend accused people without running into a conflict of interest with your employer. While defense lawyers are frequently appointed and sometimes claim from a government-funded pool, again, it would be nearly impossible to defend accused people in the same jurisdiction in which you prosecuted similar cases. For example, a DUI client's best defense might be to attack the county crime lab as unreliable. Once the lawyer does that, his words would be fed back to him if he tries to prosecute a person accused of DUI. Thus, you tend to get lawyers one one side or the other -- either defense/prosecution, or (for similar reasons) plaintiff/defense on the civil side.
- jaycroft 8y ago
  Perhaps if when in the public defender role the lawyer is successful in showing the crime lab to be unreliable, it is a good thing if that crime lab's work holds less weight in subsequent trials? Of course other bad incentives will probably pop up, but it seems like this is one way to promote truth over politics in our justice system.
- gamblor956 8y ago
  Very little of what you just said actually applies to the practice of litigation in the US. For starters, most defense lawyers aren't "appointed" from a government-funded pool; they're actually employees of the government: public defenders. (Pool defenders are the minority in the US, generally found in smaller jurisdictions without the budget for standalone public defender offices.) Public defenders frequently attack the crime labs and police departments, despite the fact that both departments are also part of their employer. On the civil side, outside of specialized areas like insurance litigation or torts, most litigation lawyers do not specialize as plaintiff or defense lawyers. They represent their clients, and this means that they will be the plaintiff's lawyer in some cases and the defense's lawyer in others. (In the case of tort litigation, the "side" depends on the client base. If the lawyer's clients are businesses, they'll almost always be on the defense side. However, if their clients are individuals, they could be on either side.)
  - 8y ago
mchannon 8y ago
I disagree with the other responses. It's a simple question of practicality. If we entrusted attorneys with both criminal defense and prosecution on some kind of ad-hoc contract basis, there'd be way too much temptation to mix things up in an illegal and unethical way. You'd have the ability to discern the prosecution's case on a case you're defending, and to a lesser extent the reverse. You'd be able to make all kinds of deals through horse-trading that make the current plea-bargaining system look half-respectable. It's not a yin-and-yang sort of situation with representation either. All government attorneys should be on the same team, but defendants often have conflicting interests (which one of you had the murder weapon?) that can often make the most contentious parts of the case take place between defendants. Prosecutors enjoy unfettered power to the point of being above the law, and defense attorneys do not. Until that changes, it doesn't matter who shuffles between the job titles. One other aspect of the original article- like many defense attorneys, this one was a former prosecutor. One major reason for the change is an increase in income. Even if no such ties actually exist between the newly transitioned defense attorney and their former chums at the state attorney's office, they trade on such ties and judges will treat their clients colored by such ties. It's a corruption in the system, one among many. DISCLAIMER: I've been represented by both an ex-prosecutor and non-ex-prosecutors.

by rntz 8y ago

darkerside 8y ago

In response to your second question, it's been said the American justice system is the worst possible justice system, with the exception of all of the world's other justice systems. I think the root problem is that the world is not fair and never will be. Justice (like health/immortality) is an ideal to be pursued, not a destination to be reached. The system we have is at least a somewhat reasonable approximation for fairness in that both sides have their points borne out by an invested party.

sametmax 8y ago
I don't know if anybody ever said that. And if somebody ever did, the person apparently haven't travelled much.
- hsienmaneja 8y ago
  Which countries have superior judicial systems and why?
  - alain94040 8y ago
    Well, for one there is the whole common law vs. civil law issue. Most people on HN would agree that a logical, consistent, codified legal system should be superior to an ad-hoc, bazaar-style system.
  - sametmax 8y ago
    The burden of proof is for op for making such a bold, generalized claim. Can op brove that the us system is superior to the one in canada, france, the uk or germany ? Good luck.
- citizenkeen 8y ago
  https://richardlangworth.com/worst-form-of-government https://richardlangworth.com/worst-form-of-government
  - sametmax 8y ago
    That's my point, since it's not the original quote and "Democracy" is not a country.
ska 8y ago
"American justice system is the worst possible justice system, with the exception of all of the world's other justice systems" That's a reworking of a quote attributed to Winston Churchill : "Democracy is the worst form of government, except for all the others". Not a sentiment typically attributed to the US justice system. As a justice system, the US is one of several with roots in English common law, and has its variant strengths and weaknesses compared to the others.

deleted 8y ago

[deleted]

cortesoft 8y ago

It is all part of what is known as the 'Adversarial System' that we use for our legal system. There are lots of arguments for why it is used, and in fact, one of the main purposes is to mitigate that kind of 'tribalism' you describe. The alternative system is known as an 'inquisitorial system', and puts the state in charge of everything. By explicitly acknowledging that the defense and prosecution are working against each other, you can help make sure that the motivations are clear and not misleading. https://en.wikipedia.org/wiki/Adversarial_system https://en.wikipedia.org/wiki/Adversarial_system

alain94040 8y ago
Adversarial is good. What the OP may be suggesting is: take a pool of lawyers, and have them be either prosecutors or defense lawyers, on any given day. It has some practical issues (defense lawyers are not paid by the state, prosecutors are).
- janzer 8y ago
  From what little, and indirect, contact I've had with the US criminal justice system my impression is most defense lawyers are paid for by the state (e.g. the public defenders office). A quick search turns up this[1] report from 2000 that says: Over 80% of felony defendants charged with a violent crime in the country’s largest counties and 66% in U.S. district courts had publicly financed attorneys. Having said that, the report is from 2000 and it seems the data is from the mid to late '90s. So things may have changed since then but I don't see any evidence of that. I'm not sure that combining the prosecutor's and public defender's office would work, but having a system where the lawyers end up switching between prosecution and defense cases does seem like it may help avoid pushing them into extreme views for either side. 1. https://www.bjs.gov/content/pub/pdf/dccc.pdf https://www.bjs.gov/content/pub/pdf/dccc.pdf
- secabeen 8y ago
  Actually, most defense lawyers are paid by the state too: > At felony case termination, court-appointed counsel represented 82% of State defendants in the 75 largest counties in 1996 and 66% of Federal defendants in 1998. https://www.bjs.gov/content/pub/pdf/dccc.pdf https://www.bjs.gov/content/pub/pdf/dccc.pdf

dragonwriter 8y ago

> Why is it that the legal profession is split between prosecutors and defense lawyers? Criminal law (not the whole of the legal profession) is split between those things because either you work for a public prosecutor or you don't; it's not at all uncommon for people to do both over a career, but outside of some special cases, you wouldn't do both as part of the same job (the military justice system is an exception, here.) EDIT: Actually, I think the parenthetical above is wrong; I think all the military branches have a separate offices for prosecutors and defense counsel within their respective JAG Corps.

gamblor956 8y ago
You had it correct pre-edit. The JAGs requires its officers to serve in multiple roles. Generally, they end up doing prosecution, defense, and both sides of civil litigation based on the current needs of their respective branch. Very few JAGs are permitted the opportunity to specialize; generally you have to either be amazing at that particular practice area or be politically connected.
- dragonwriter 8y ago
  > Generally, they end up doing prosecution, defense, and both sides of civil litigation based on the current needs of their respective branch. I know that they ended up doing that, and I thought it was a fairly dynamic movement between roles. But the quick research I did indicated judge advocates are assigned to particular offices, and that it while the way roles were divided between various offices was different in each service, the criminal prosecution and defense functions were consistently in different offices, which would suggest that the role changes were more like a change of assignment within the service than different tasks within he same assignment. But, yeah, I'm going on pretty shallow information there.

nradov 8y ago

There's no split. They're all members of the same Bar associations, go to the same continuing legal education seminars, read the same legal journals, and meet up for drinks after the trial. Prosecutors frequently leave their jobs to become defense attorneys, and vice versa. Defense attorneys will do their best even when they assume the client is guilty; they're ethically required to do so, and they get paid the same either way.

wahern 8y ago
The caseloads of public defense attorneys (particularly in historically segregated states) are significantly more burdensome than that of prosecutors. Furthermore, prosecutors have access to free investigation services--the cops--whereas defense attorneys, particularly the overloaded ones, don't have much if any budget for that kind of work. Sometimes they'll pay out-out-pocket to track down witnesses using private investigators, but for obvious reasons that doesn't scale. Some cities like San Francisco have laws that enforce rough parity in budgeting and caseload, but even then public defenders are at a huge disadvantage (e.g. prosecutors benefit from the police budget). For practical reasons there's no way to address this adequately. The underclass is too numerous, and disparity in wealth too great, to think we can fix this administratively. The best first step is to make the stakes less severe by lowering penalties. Not everything needs to be a 1st degree felony. The next step is to be more consistent--pursue misdemeanor charges and lesser felonies more vigorously so that outcomes are more consistent, regardless of the wealth or stature of the client. Tweak the system so that it will tend toward more equal outcomes, rather than trying to brute force it.

mjw1007 8y ago

It certainly doesn't have to be that way. In the UK barristers who both prosecute and defend are common (though perhaps less than they once were).

Digory 8y ago

For the most part, prosecutors are government employees or even elected officials. It would be difficult to defend accused people without running into a conflict of interest with your employer. While defense lawyers are frequently appointed and sometimes claim from a government-funded pool, again, it would be nearly impossible to defend accused people in the same jurisdiction in which you prosecuted similar cases. For example, a DUI client's best defense might be to attack the county crime lab as unreliable. Once the lawyer does that, his words would be fed back to him if he tries to prosecute a person accused of DUI. Thus, you tend to get lawyers one one side or the other -- either defense/prosecution, or (for similar reasons) plaintiff/defense on the civil side.

jaycroft 8y ago
Perhaps if when in the public defender role the lawyer is successful in showing the crime lab to be unreliable, it is a good thing if that crime lab's work holds less weight in subsequent trials? Of course other bad incentives will probably pop up, but it seems like this is one way to promote truth over politics in our justice system.
gamblor956 8y ago
Very little of what you just said actually applies to the practice of litigation in the US. For starters, most defense lawyers aren't "appointed" from a government-funded pool; they're actually employees of the government: public defenders. (Pool defenders are the minority in the US, generally found in smaller jurisdictions without the budget for standalone public defender offices.) Public defenders frequently attack the crime labs and police departments, despite the fact that both departments are also part of their employer. On the civil side, outside of specialized areas like insurance litigation or torts, most litigation lawyers do not specialize as plaintiff or defense lawyers. They represent their clients, and this means that they will be the plaintiff's lawyer in some cases and the defense's lawyer in others. (In the case of tort litigation, the "side" depends on the client base. If the lawyer's clients are businesses, they'll almost always be on the defense side. However, if their clients are individuals, they could be on either side.)
- 8y ago

mchannon 8y ago

I disagree with the other responses. It's a simple question of practicality. If we entrusted attorneys with both criminal defense and prosecution on some kind of ad-hoc contract basis, there'd be way too much temptation to mix things up in an illegal and unethical way. You'd have the ability to discern the prosecution's case on a case you're defending, and to a lesser extent the reverse. You'd be able to make all kinds of deals through horse-trading that make the current plea-bargaining system look half-respectable. It's not a yin-and-yang sort of situation with representation either. All government attorneys should be on the same team, but defendants often have conflicting interests (which one of you had the murder weapon?) that can often make the most contentious parts of the case take place between defendants. Prosecutors enjoy unfettered power to the point of being above the law, and defense attorneys do not. Until that changes, it doesn't matter who shuffles between the job titles. One other aspect of the original article- like many defense attorneys, this one was a former prosecutor. One major reason for the change is an increase in income. Even if no such ties actually exist between the newly transitioned defense attorney and their former chums at the state attorney's office, they trade on such ties and judges will treat their clients colored by such ties. It's a corruption in the system, one among many. DISCLAIMER: I've been represented by both an ex-prosecutor and non-ex-prosecutors.