There are many former prosecutors out there doing criminal defense and saying they “know how the system works” and can get better results because they used to prosecute the very people they are now defending. There are some former prosecutors who make excellent defense attorneys and others who don’t. The reason for that may be that being a defense attorney requires different skills and a different orientation than being a prosecutor.
Defense attorney skills involve building a trusting relationship with a client, being a good guide for the client in a confusing system, and strategizing about how to deliver the best possible result for the client in each case. By contrast, prosecutors have spent years without representing individual clients, because their client has been the City, State or United States government. Many, though not all, prosecutors did not have empathy for defendants they were prosecuting, even when there was compelling information about those people’s backgrounds or current situations that should have been considered.
While being a good prosecutor isn’t always about “winning,” this is exactly what it means to be a good defense attorney. A prosecutor must consider whether a case should even be pursued and should not try to win a case that should never have been brought. A good prosecutor has the perspective to recognize when the wrong person has been charged, when allegations have been fabricated or when a case has been overcharged. For a prosecutor, often the most ethical strategy is to dismiss a case or admit there is not sufficient evidence to make the case as it has been charged.
This issue comes into play a lot in domestic violence cases. Many prosecutors stick to their guns in the face of overwhelming evidence that the “victim” is the real perpetrator. Some prosecutors are unable to see when an allegation has been fabricated to assist the “victim” in getting revenge, gaining advantage in a family law case, or for some other reason. Some prosecutors offices pressure the “victim” to participate in a prosecution even when that person does not want to assist and is saying no assault took place.
It is worth thinking about whether this background is good practice for the role of defense attorney. A defense attorney must always go to the mat for their client. The roles of defense attorney and prosecutor are not mirror images of each other and, in this way, being a prosecutor may not be the best practice for being a zealous defense attorney. This said, there are many former prosecutors who are now defense attorneys who have earned my respect. They understand that their job now is to advocate for each client in every case and not judge that person. They treat their clients with respect and not contempt, and forge good client relationships. They have parted ways with their former office on good terms and may benefit now from the relationships they built as prosecutors.
Some questions you may want to ask a former prosecutor who you are considering hiring as your defense counsel:
- Why did you become a prosecutor?
- Why are you now a defense attorney?
- Which role do you feel suits you best and why?
- Were you ever found to have committed misconduct as a prosecutor? Tell me about that.
- How do you feel about representing clients who were the exact people you used to make sure were held accountable and punished?
- Are there any criminal defense clients you will not represent?
- Do you enjoy having individual clients in your current practice? If so, why?
- What advantage will I have in my case by having you represent me?
- What is your relationship with your former office like and do you feel those relationships will have any impact on my case?
DISCLAIMER: This post is intended to share my perspective, insights and some general information on various aspects of Domestic Violence Cases. It is not legal advice and is not intended to substitute for legal advice. You should consult an attorney to obtain legal advice for your individual situation and case.