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Comment by rntz | Hacker News Reader

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?

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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

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).

A robust adversarial system can be good. What most folks experience in the US isn't a robust system that is anywhere near fair to both sides.

Many defense lawyers are paid for by the state. Not all, but most. But they aren't really paid equally in most cases: Defense lawyers provided by the state tend to be overworked and not have enough time to adequately help folks. I'm not sure anywhere has laws that mean they get as much money and time as the prosecution has to put towards a case. They aren't paid on par with private defense lawyers either, unfortunately.

An adversarial system is only good if both parties have similar support. When one side is obviously disadvantaged when the defendant is too poor to hire a lawyer outright, the benefits of the adversarial system are fewer.

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

It's funny that this suggestion seems so radical considering that a somewhat related discipline, debate, requires participants to argue both pro and con throughout the course of a competition. I remember realizing that by arguing both sides of an argument, it was forcing me to concentrate on the mechanics of argument rather than the actual topic. It didn't matter which side of the argument was better, only which side was argued better.

Similarly, I'd expect lawyers who were forced to alternate between prosecuting and defending to concentrate more on the mechanics of the process and less on the result.

Competitive debate is a performance for a self-selected audience. Voters and especially defendants are more interested in the results than the mechanics.

Basically make the state hire lawyers and mandate any lawyer can't work one side or the other more than 2/3 of the time per year (or some such)

Do you really want your criminal defense to be handled by someone for whom up to 2/3 of their job may require close cooperation and good working relationships with the police?

Yes. Former prosecutors make good defense lawyers because they more-intimately know how the other side thinks.

There is a difference between former prosecutors (who have knowledge of a prosecutor but not the political and institutional incentives of a prosecutor) and someone who much of their current workload is as a public prosecutor.

Yes, a former prosecutor is a great person to get as a defense attorney. That's not the question I asked.

You asked a question about a hypothetical, but I don't know why a relationship with police should necessarily inhibit good representation.

That said, it's not like the defense/prosecutor caseload would be the only thing to change if this hypo came to be. It wouldn't happen in a vacuum, no "suppose everything was the same tomorrow except everybody's calendar got mixed up!"

Well, sure, if we enter a world where criminal convictions aren't politically useful stepping stones in the way successful criminal defenses aren't, the plan is great.

To me, it's kind of like, "know thy enemy." If you've worked with them, you know their dirty tricks. If they know they're going to be up against you, they may be less inclined to use them because they know that you know what they're up to.

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

> It has some practical issues (defense lawyers are not paid by the state, prosecutors are).

Many defense lawyers are paid by the state: they're called public defenders.

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.

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.

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.

> 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.

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.

> 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.

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.

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.

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.)

I didn't say defense lawyers are "appointed from a government-funded pool." I said many are "appointed," which is the term used in Gideon v. Wainright and Miranda. "Appointed" covers public defenders and assigned counsel. Both are (under)paid from government funds, but their attorney-client obligations run to the accused, not the government.

As for the the rest, "the Defense bar"[0] and "Plaintiff's lawyers"[1] are pretty common terms. Sorry if your speciality is left out. The point is that a lawyer's responsibilities to clients will get hairy if they try to play both sides of common divides like prosecution/(criminal)defense and plaintiff/(corporate) defense.

[0] https://www.dri.org/ [1] https://www.google.com/search?q=plaintiff%27s+lawyer+site%3A...

I'm a lawyer...I've practice both as a public defender and in civil litigation. You're technically correct about everything you've cited but still completely wrong about your conclusion.

Lawyers are professionals, and while you will get a few bad apples who play politics, the overwhelming majority of them will have no problem representing both sides--as long as it's in different cases. (Professional has a specific legal meaning in the US, meaning at a very high level that lawyers have ethical obligations to their clients.)

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).

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.

   "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.

I don't know if anybody ever said that. And if somebody ever did, the person apparently haven't travelled much.

Which countries have superior judicial systems and why?

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.

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.

https://richardlangworth.com/worst-form-of-government

That's my point, since it's not the original quote and "Democracy" is not a country.

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