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Prosecutors walk a fine line

| November 11, 2010 8:00 PM

Although I don't practice much law anymore, being an attorney invites a plethora of commentary on common frustrations with the legal system or its role in society. Often these comments are based on incorrect assumptions from TV crime serials - about as realistic a portrayal of law and procedure as a candy bar is nutritious.

Perhaps the least understood role in the justice system is that of prosecutor. It may seem obvious, but first things first: that's criminal law, not civil. Civil suits are for things like divorce, collections, probate and business disputes. In civil cases a "plaintiff" (the one who complains by filing the lawsuit) asks for money or other relief (e.g., divorce or an order to do or refrain from some action) from a defendant, who argues he shouldn't have to provide it.

Criminal cases are for crimes. A prosecutor - a lawyer who works for the state or federal government - charges a defendant (a person or corporation) with a crime. If the prosecution is successful, the defendant will go to jail, pay a fine, or both. The constitutional protections of fair and speedy trials, rights to a defense, probable cause for searches, and so on apply only to criminal cases.

Here's where it gets more interesting and less understood. A prosecutor's (the state's) legal duty is not to get a conviction. It's to see that justice is done. That's a world of difference from civil suits, in which each side has only to look out for himself. A prosecutor has to be mindful of the rights of the accused (who may or may not be guilty and whose liberty is at stake), not necessarily winning the case.

State laws and the Idaho Bar's rules of ethics give unique responsibilities to a prosecutor. Take evidence for example. In a civil suit you don't have to let the other side know about evidence that works against you, unless they ask specifically for that evidence.

Not so in a criminal case. Prosecutors must "make timely disclosure to the defense of all information that tends to negate the guilt of the accused or mitigates the offense." Again, the job is justice, not conviction. The idea is not to take a chance on jailing the innocent or overdoing punishment if the crime is less severe than at first it seemed.

Prosecutors have a duty of fairness; this limits their ability to make certain arguments in court. A lawyer in a civil suit can say in closing argument, "I know the defendant did this; he's dishonest and you should make him pay!" A prosecutor can not offer a personal opinion of guilt, nor can she appeal to the jury's passions.

Why not? Because juries realize they don't always know everything the police and attorneys know, and jurors sometimes improperly look for hints. They tend to trust one side more than the other in criminal trials, so the prosecutor has more influence. That brings with it responsibility and sometimes, unfair advantage. The rules thus limit the arguments to the evidence, the sufficiency of facts, which are what convictions should be based upon anyway.

It's true that higher prosecutorial responsibilities can make it harder to convict and sometimes the guilty evade punishment. Consider the exoneration by DNA (or other evidence) of hundreds of jailed innocents released only after losing decades of their lives in prison and the price of these constitutional safeguards is justified.

"It is more important that innocence be protected than it is that guilt be punished." - John Adams

Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. E-mail sholehjo@hotmail.com

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