What Do Prosecutors Owe Defendants?

It’s always seemed a little funny watching a defendant who broke the law insist on strict compliance with the law by the police and prosecutor.  It’s kind of like someone covered in mud asking you to wash your hands before you touch him. Or watching a naked man insist that you cover up a little bit more because you’re embarrassing him.

A Fair Trial

The guilty defendant knows he broke the law.  The police that apprehended him and the prosecutor who filed a case against him know that the defendant broke the law.  And yet, again and again, I see defendants play this game in court.  It’s a game that’s so basic, so universally, that no one really talks about it.  The defendant will pour over the conduct of the police with a fine-toothed comb, looking for any violation of any law, no matter how tiny or irrelevant.  If he should find one, he will not speak to the officer about it, he will not make a personnel complaint, and he will not bring a civil suit.  Instead, he will insist that this violation should result in the complete dismissal of charges against him.  After all, he will tell you, you must have clean hands if you want to come in to criminal court.

He will never consider, and no one will point out, that the defendant’s hands are not clean.  To the contrary, he is, to use the analogy above, covered in mud.  When the prosecution begins, the defendant becomes a hawk-eyed guardian of the rules.  He insists on his rights, never mind the rights of the victims he trampled on, and the slightest hint of impropriety draws the most hysterical objections.  Many defense attorneys don’t see the irony in this type of behavior and go right along with it.

For an example, I once prosecuted a man, already a state prisoner, who convinced his wife to bring him marijuana during a conjugal visit.  Drugs in prison are a big problem, but this was marijuana after all, and I wanted to settle the case so that I could focus on more important ones.  The defendant was representing himself.  And he was burying me with paper.  He was writing motions claiming violations by everyone within a mile of the case.  Some of his complaints were based on rights that didn’t exist.  Others seemed to be copied from motions he found in the prison law library.  I reluctantly prepared responses to six of his motions, plus a discovery request, and appeared at a hearing.  The defendant served me with 6 more.  Exasperated, I asked to meet him in the interview room.  He told me he wanted a dismissal.  I told him no.  I tried to be as professional as possible.  Finally we got down to brass tacks, and he told me that he made a small mistake and wanted a small punishment.  I agreed, and drastically reduced my offer.  He thought it over, called it fair, and accepted.  Back out in the courtroom, with all him motions in front of me, I couldn’t help but feel like he had been a little hypocritical.

The hypocrite’s crime is that he bears false witness against himself. What makes it so plausible to assume that hypocrisy is the vice of vices is that integrity can indeed exist under the cover of all other vices except this one. Only crime and the criminal, it is true, confront us with the perplexity of radical evil; but only the hypocrite is really rotten to the core.

Hannah Arendt, On Revolution.

Although this behavior is frustrating, prosecutors owe defendants a fair trial.  They owe the community, which includes the defendants, compliance with the law, even when the defendant himself doesn’t have that value.  And not just compliance with the law, compliance with the spirit of the law as well.

A Different Kind of Right to Confrontation

William Hazlitt said, “a hypocrite despises those whom he deceives, but has no respect for himself. He would make a dupe of himself too, if he could.”  Preventing this is the second thing a prosecutor owes a defendant.

We owe the defendants a clear, unavoidable confrontation with the truth.  Everyone knows that the jury has the role of deciding what happened.  In essence, they say, “this is the truth about what happened.”  The idea of the jury as the arbiter of the truth has passed into cliche, as has the idea that the prosecutor’s role is to prove to the jury what truly happened, beyond a reasonable doubt.

But we have a different role as well.

For example, I sometimes listen to wiretaps.  When you listen to a wiretap, the dates of each call are organized in a spreadsheet.  You can listen to the first call after someone is arrested, and the most recent call made this morning, one after another.  I remember listening to a defendant who had assaulted his family with a machete.  In his first call after the incident, he candidly admits that he doesn’t know what happened because he was too drunk to remember.  As I continued listening to the calls the defendant’s attitude changed.  He became convinced that he acted in self-defense.  After about a month, he was adamant that he was attacked first.  After another month, the self-serving embellishments continued.  The lacerations suffered by the victims occurred through their own negligence.  The whole thing was a setup.  By the last call, the defendant had completely convinced himself that he was a martyr and would be acquitted.

This is a very human quality.  A steadfast, irrational belief that you are always right is a perverse form of psychological armor.  No one wants to believe they are a bad person.  Rather than confront hard truths about ourselves, and then make hard changes, we find it easier to deceive and excuse ourselves.

Part of the ritual of trial is, and must be, the destruction of these illusions.  If a defendant, like the one on the wiretap, will not confront their problems on their own, than the prosecutor must confront him.  In public, in front of the community, and with evidence.  In this way, the prosecutor helps to heal the defendant.  He destroys the walls of falsehoods and deception that the defendant uses to protect himself from the truth.  The prosecutor should not only prove the case, but take the defendant’s excuses from him and leave him, at least in his own mind, unable avoid the truth.  Even if the jury does not convict the guilty man, his own conscience may, and in this way some good is salvaged.

All mankind are stretching out their hands to you on every side.  Lives that have been ruined, lives that are on the way to ruin are appealing for some help; it is to you that they look for hope and assistance.  They are begging you to extricate them from this awful vortex, to show them in their doubt and disarray the shining torch of truth.

Seneca, Letters to Lucilius, Letter XLVIIIcZ


An excellent essay on hypocrisy.

A study showing that hypocritical defendants were seen as more blameworthy and punished more severely.

Other less interesting things that prosecutors owe defendants:

  1. All sorts of evidence;
  2. Polite, professional treatment; and
  3. Respect for their constitutional rights.

Some things that prosecutors don’t owe defendants:

  1. The plea offer of their choice;
  2. Filing the least serious charge available;
  3. Investigating the defense case on behalf of the defense; and
  4. Impeachment evidence for defense witnesses.

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