Difference Between Defense & Prosecutor

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One of the foundations of criminal law is the manner in which the argument of cases are presented. Whether a jury is present or not, one thing is always the same. There is a prosecution and a defense. The prosecutor presents her case on behalf of the people or the state and attempts to gain a conviction, while the defense represents the accused. Both parties make opening statements, call witnesses, make objections, cross-examine and present closing statements. The differences between the defense and prosecution are crucial and form part of the basis for criminal proceedings within the legal system.

TL;DR (Too Long; Didn't Read)

A prosecutor may appear on behalf of city, county, state or federal government. Although they may present different names, their role, of representing the people, remains the same.

Roles

The prosecutor in most criminal cases represents the district attorney’s office. The district attorney is responsible for all criminal prosecutions within his jurisdiction. The prosecutor attempts to gain a conviction against the accused, also known as the defendant, by presenting a case that will convince a judge or jury of the defendant’s guilt. If there is a victim in the case, as in a murder trial, the prosecutor essentially acts on the victim's behalf. Since a defendant is innocent until proven guilty, the burden of proof lies with the prosecutor. The defense represents the defendant. The defendant retains a defense lawyer or the court appoints a public defender if the defendant cannot afford an attorney. The objective of the defense is to argue in opposition to the prosecutor, highlighting reasonable doubt and making the case for the defendant’s innocence.

Double Jeopardy and Appeals

The prosecutor has only one shot at a conviction, while the defense conceivably has more than one shot at a verdict of not guilty. If the defense gets an acquittal in a criminal case, the prosecutor cannot seek another criminal trial due to the laws prohibiting double jeopardy. If the trial ends in a guilty verdict, there are means by which the defense can appeal the conviction. The system of appeals can involve a number of appellate courts, and the process is difficult, but the defense can hypothetically attain a retrial.

Employment

The prosecutor usually works for the district attorney. Thus, the prosecutor is an employee of the state. A defense attorney operates privately. A defense attorney might operate independently having opened up her own office, or be employed by a large legal firm. Such firms employ many criminal attorneys, with each individual having some area of expertise or talent. An attorney employed by such a firm may eventually become a partner. Public defenders get appointed to cases by the state, but for the most part operate independently.

Initial Power

At the outset of a criminal case, the prosecutor holds a bit more power than the defense. The prosecutor is able to offer the defense a plea deal or plea bargain. This allows the accused to plead guilty to the charge or a lesser charge. By doing this, the defendant can avoid a trial and receive a more lenient sentence. The prosecutor is able to instill a bit of fear in the defense at this early juncture by implying that their case is so strong, a trial might inevitably end in a guilty verdict.

References

About the Author

A novelist and essayist, Daniel Fox has been writing since 1996. His work has appeared in various international periodicals. He holds a Bachelor of Arts in English from the University of California, Los Angeles.