I know I am veering off track from my promised series of posts on the presumption of innocence, but Will's comment in the prior thread reminded me that I have been meaning to write about who has the easier job -- prosecutors or defense attorneys. Of course, prosecutors always think they have the harder job and defense attorneys always think they have the harder job.
Almost all of my experience (five years of practice) has been on the prosecution side. I did, however, represent eight clients in a criminal defense clinical program during law school and, more recently, I won an acquittal for a client charged with misdemeanor telephone harassment. It seems to me, based on this experience, that comparing the stresses and difficulties of prosecution versus criminal defense is like comparing apples and oranges. Both jobs have very different but very real stresses and frustrations.
Prosecuting criminal cases is hard and stressful for a variety of reasons, including the following:
LOGISTICS AND COVERING ALL THE BASES: The burden of proof is on the prosecution. Therefore the prosecutor must be prepared to present evidence on every element of the offense. The prosecutor must have witnesses available and ready to testify. It can be a logistical nightmare getting all the witnesses under subpoena and ready and willing to testify. The prosecutor has to be ready to cover all the bases and foresee what issues may crop up that will require witness testimony. For example, I once had a defense attorney bring up the fact during trial that the police had failed to dust for fingerprints from a particular surface. I hadn't thought about that, so I had to hustle to get my fingerprint expert (who fortunately was on my witness list) in to court at the last minute to explain that there would be no readable prints from that particular surface and therefore no reason to dust for prints from that surface.
Defense attorneys sometimes present witnesses but, more often than not, the defense attorneys do not have witnesses, or the witnesses are friends and family of the defendant and are thus quite willing to come in. The prosecutor usually has more witnesses and usually has to deal more with members of the public who really don't want to be involved. And the cops never want to come in because they're always busy with the D.A.R.E. program. I hate the *#$(*)! D.A.R.E. program for that reason alone. Hearing "But I have D.A.R.E. that day" is like nails on a chalkboard to me.
MORE HARD WORK PREPARING WITNESSES: Since the prosecutor usually presents more witnesses, the prosecutors has to be more prepared further in advance. I usually liked to meet with each of my witnesses at least twice before trial-- once to make sure I understood what that witness was going to say, and once to review the questions I was going to ask on direct examination so that the presentation would go smoothly and so that I would not be taken by surprise by any facts that I might have missed or misunderstood. Cross-examination of the other side's witnesses, however, requires much less preparation with the witness. You might try to interview the other side's witness but mainly you prep for cross-examination on your own at your own leisure, rather than around the schedule of the actual witness.
DIRECT EXAMINATION SUCKS: Again, this stress relates to the fact that the prosecutor usually presents more witnesses than the defense. When you present your witnesses, you conduct what's called "direct examination." Direct examination consists of open-ended questions rather than questions that suggest the correct answer. So on direct examination I would say, "What happened next?" as opposed to "Next you punched him in the stomach, isn't that right?" So when you are conducting a direct examination, you are exercising much less control over the witness because it is up to the witness to select which facts are relevant to what happened next, as opposed to merely answering yes or no. Some witnesses are just awful and are likely to say all sorts of stupid things that make your case seem worse than it is. When I was starting out I used to hold my breath every time my witnesses answered a question because I just hated ceding control over the courtroom presentation to the witness.
Defense attorneys get to do a lot more cross-examination. Sure they are often cross-examining people who are hostile to their case, but they get to control the witness more by asking more pointed questions like, "Didn't you tell the police that he didn't seem threatening to you at all?" Plus, cross is more fun for the attorney because it is more of a performance by the attorney.
THE PROSECUTOR BEARS MUCH MORE PERSONAL RESPONSIBILITY: As the prosecutor, I am not supposed to just try to win at all costs or get the toughest sentence I can. The prosecutor has a personal responsibility to seek justice and only to prosecute when appropriate. And those decisions about what constitutes a just result is based on the personal judgment of the prosecutor or the supervising District Attorney within the bounds of ethics and the law. I don't have a client telling me what to do. My client is the State but it is up to me to figure out what is best for the State. A lot of prosecutors try to slough off responsibility by simply saying "It's up to the jury" or "I am just doing what the victim wants me to do," but I think that's b.s. I think that the prosecutor has a responsibility, really quite an awesome responsibility, to decide whether it is appropriate to pursue a particular prosecution, what charges should be brought, and what sentence to recommend. This is hard and stressful-- or at least it should be if the prosecutor is doing her job. Often was the time when I wished my only real responsibility was to zealously defend my client and abide my client's wishes.
This responsibility to put one's personal judgment on the line also made criticism seem much more personal and harder to take. If people thought that a prosecution or sentencing recommendation were inappropriate, they were essentially saying that my personal judgment was wrong or unfair or misguided. In contrast, if people criticize defense tactics, well, hey, the defense attorney's job is geared almost entirely (within the bounds of ethics) towards helping his client as opposed to achieving justice. (Obviously, having a representative for the accused is meant to be part of the process of achieving justice, but my point is that the defense attorney only has to worry about that one piece of it, whereas the prosecutor is suppoed to have more responsibility for the big picture.)
THE PROSECUTOR IS UNDER A LOT OF PRESSURE TO PLEASE A LOT OF DIFFERENT FACTIONS: As a prosecutor when I negotiate a plea bargain, the buck ultimately stops with me. Yet I am also required to try to get a lot of other people on board with the plea bargain. I am required by law to consult with the victim. In addition, most judges in my jurisdiction want to hear that the investigating police department is satisfied with the plea agreement. The judge also receives an independent recommendation from the probation department as to the appropriate sentence. It can be tough to get a judge to accept a plea bargain if the victim or the police department or the probation department disagrees with it. You have to be able to explain to the judge why you are deviating from the victim's or the police officer's or probation department's wishes. In my first job, no one ever agreed on anything because there was so much politicking going on. It made life very stressful because the prosecutor is the one charged with coming up with a result that is both fair and with which all the key players are satisfied.
And if the judge hates the plea bargain, guess who he's going to blame? Not the defense attorney who is just doing the best he can for his client but the prosecutor who is supposed to be seeking justice. I had one particular judge who would always thunder, "The prosecutor has agreed to a very reasonable plea bargain. Perhaps TOO reasonable!" And then he would go on to say to the defendant, "You're awfully lucky to have such able defense counsel." So then my victims or the cops and whoever is in the courtroom are left with the impression that defense counsel somehow put something over on me.
THE STEREOTYPE OF THE OVERZEALOUS PROSECUTOR: I know defense attorneys like to whinge that jurors and members of the public don't really understand proof beyond a reasonable doubt, but one cultural script that I think is very prevalent is the stereotype of the overzealous prosecutor. If I had a dime for everytime I have been called "overzealous" or just looking "for another notch on my belt," well . . .