Prosecution and Defense — Switching Roles

November 23, 2007

For years there has been criticism of the way we pay public defenders.  Everyone knows that public defenders have way too many cases to give enough time to each.  The pay is so bad that the public defenders in New York City recently sued the City of New York, alleging they were paid so little per case that their clients were being denied due process of law. The appellate court agreed they should be paid more, but just a little bit more.   So it remains scandalously low there and many other places.

Now retired U.S. Supreme Court Justice Sandra Day O’Conner has a suggestion.  This month she said if she had a magic wand she would try to make prosecutors and public defenders comparably paid and trained. She said she would like to see states create a staff of public lawyers “who would spend some time on both sides”.  She says we should try the English model.

In England, public prosecutors and public defenders trade positions every few years.  Today’s prosecutor is yesterday’s public defender and vice versa.  This gives the person in each position a deeper understanding of and respect for the other.

My own personal experience confirms this.  During the years I was a Assistant District Attorney and as supervisor of other Assistant District Attorneys, I observed that experienced private defense attorneys could always cross examine witnesses better than prosecutors, including me.  This is because prosecutors just do not get the experience cross examining witnesses that defense attorneys do.  I was a prosecutor for eight years, but I never got a chance to cross examine witnesses on a routine basis, the way defense attorneys do.

Of course, even after practicing as a criminal defense attorney for twenty five years, cross examination continues to be a skill that needs development and sustainment.  Every witness must be prepared for extensively with the understanding that no matter how much preparation and anticipation for a witness, the unexpected will arise.  However, thorough understanding of the facts and law of the case along with an appreciation of the particular witness will empower a defense lawyer to control the unexpected.

Switching roles, as retired Justice O’Conner suggested, would also give defense attorneys an appreciation of the skills and the role of a prosecutor.  That are some things many defense attorneys do not have because they have never served as prosecutors.  It really does make a difference, giving a defense attorney an advantage of insight into the process the prosecutor’s office follows and the strategic view each prosecutor will have.

Justice O’Conner did not have in mind the superior skills a private defense attorney develops from serving as a prosecutor.  She had in mind an improved system of public prosecution and public defense for those who cannot afford to hire their won lawyer, of better understanding and smoother cooperation between the two sides.  But those who are accused of a crime who do hire their own lawyers to defend them should appreciate how the experience of serving as a criminal prosecutor for a number of years prepares a criminal defense attorney in unique ways which enable him to serve his clients.