Criminal Justice | Section 5.2: The Prosecution and Defense

Criminal Justice: An Overview of the System by Adam J. McKee

Section 5.2: The Prosecution and Defense

Recall that the United States has an adversarial legal system. This means that all criminal matters decided by the courts are a contest between a lawyer for the state and (in most cases) a lawyer for the defense. These “adversaries” are ethically required to do their utmost to prevail in court.


Prosecutors at the federal level prosecute different types of crimes than their state court counterparts. Regardless of the level of government, it is the prosecutor’s job to present the government’s case against criminal defendants. The purpose of this is to demonstrate guilt to the finder of fact. This often involves working with law enforcement personnel to ensure that evidence is in order prior to launching criminal proceedings. It is also among the duties of the prosecutor to see that justice is done; this can mean sharing evidence that tends to prove the defendant’s guilt.

U.S. Attorneys

In federal courts, prosecutors are known as United States Attorneys. All 94 federal court districts in the United States have a U.S. Attorney. They are appointed by the President, and function mainly as administrators. Assistant U.S. Attorneys usually conduct actual prosecutions. The Attorney General of the United States, who also heads up the United States Department of Justice, supervises U.S. Attorneys. The almost 2,000 assistant federal prosecutors investigate violations of federal laws, focusing on matters beyond the scope of local law enforcement operations, such as public corruption, large-scale drug trafficking, and white-collar crime.

District Attorneys

At the state and local level of government, prosecutors are usually called District Attorneys (D.A.). Some jurisdictions, such as Illinois, call these government lawyers State’s Attorneys. District Attorneys have a large amount of discretion. Official action for prosecutorial misconduct is rare, and different jurisdictions deal with it in different ways.

City Attorneys

Some jurisdictions allow for the prosecution of violations and some misdemeanors at the local level. These City Attorneys prosecute minor offenses that often only result in fines such as traffic offenses, nuisance offenses, and violations involving alcohol. Some jurisdictions allow these attorneys to prosecute misdemeanor cases that can result in jail time.

Independent Counsels

Independent counsels are lawyers that serve as prosecutors in cases where high-level government officials are charged with misconduct. The reason they exist is to prevent the abuse of government power. The U.S. attorney general has the power to appoint an independent counsel when he or she determines that there is sufficient evidence to warrant the investigation of high-ranking government officials, including members of the United States Congress. These independent counsels are not accountable to any government office. This is to prevent undue influence over the investigation. Independent counsels serve in this capacity for as long as is necessary to complete the investigation.

 Prosecutorial Discretion

Prosecutors arguably have the most discretion of any actor in the criminal justice system. They make decisions as to who to charge, what to charge them with, when charges should be dropped, and whether or not to plea bargain. Because of this charging power in death penalty states, some prosecutors literally hold the power of life and death. While the discretion of prosecutors is nearly unfettered, it is most commonly used in three main areas: the discretionary decisions to file charges, dismiss charges, and offer plea bargains.


While police initially inform criminal defendants of the charges against them, it is up to the prosecutor to decide what the exact formal charges will be. First, however, the prosecutor must make the decision to prosecute persons accused by the police or to not prosecute them. The decision to prosecute is linked to several factors. Perhaps the most important factor is the strength of the evidence against the accused. Obviously, prosecutors do not like to move forward with cases they cannot win. The seriousness of the offense is another important factor. Offenses that are more serious are more likely to be prosecuted. Other factors are resource-based. The prosecutor must consider both prosecutorial resources and the size of the court’s docket. Community resources are also important. Prosecutors can only seek alternatives to prosecution and prison when those resources are available. The characteristics of the defendant are important as well. The defendant’s degree of culpability and criminal history factor into the equation, influencing the prosecutor to prosecute more aggressively and to seek harsher punishments. Cooperation with the police and a willingness to help prosecute others influence the prosecutor to seek lighter sentences.

Dropping Charges

Once charges are filed by a prosecutor, there is still wide discretion as to how to move the case forward. The prosecutor can decide to go forward to trial with the case. An alternative is to make a plea bargain where the defendant is offered a lighter sentence for a guilty plea. The prosecutor can also enter a nolle prosequi. A nolle prosequi is a formal statement by a prosecutor stating that a case will be dropped. Prosecutors can enter a nolle prosequi (often abbreviated as nol. pros.) when the case is deemed trivial, the evidence is determined by the court to be inadmissible, there is insufficient evidence, and when it is discovered that false accusations were made.

Plea Bargaining

Prosecutors have a great deal of discretion when negotiating plea bargains with the defense. A plea bargain is an agreement in which the prosecutor permits the defendant to plead guilty in exchange for concessions such as reduced charges or lenient sentence recommendations. Both the prosecution and the defense can benefit from plea bargains. For the defense, the obvious benefit is a reduced sentence. For the prosecution, plea bargaining is a matter of conserving resources, both the prosecutor’s resources and the courts. If plea bargaining did not occur, the work of the courts would slowly stop.

The Defense

The role of the defense attorney is to champion the defense at every stage adversarial legal process. This role is critical to maintaining fairness in the criminal justice system. Many different tasks are the responsibility of the defense attorney. Defense attorneys protect the rights of the accused in pretrial processes such as police interrogations and lineups. Defense attorneys must work with prosecutors and determine the strength of the cases against their clients. They must represent their clients at bail hearings, suppression hearings, and other pretrial matters. Defense attorneys must devise a defense strategy that can include plea bargaining or going on to trial. When cases do go on to trial, defense attorneys represent their clients in court. When clients are found guilty, defense attorneys represent their clients at sentencing hearings, arguing against the measures proposed by the prosecution. Defense attorneys also represent their clients in appeals when the results of a trial are unfavorable.

Types of Defense

While there are a staggering number of variations when specific details are examined, there are three basic ways that criminal defendants can defend themselves in court: Defendants can hire their own private attorney, they can utilize legal services provided by the government for the poor, or they can represent themselves. Because self-representation is a notoriously bad idea, most criminal defendants choose one of the first two options.

Legal Services for the Indigent

In the criminal justice system, most criminal defendants cannot afford to hire a private lawyer to represent them. Historically, this meant that only the wealthy could have lawyers to represent them in many state courts. In 1963, this situation changed. It was in this year that the Supreme Court handed down the famous Gideon v. Wainwright decision. In this case, the court held that an indigent defendant charged in state courts with a felony offense had a due process right to be represented by counsel. Later, in a 1972 case styled Argersinger v. Hamlin, the court refined this rule by extending the right to court-appointed counsel whenever there was a danger of the defendant being sentenced to prison. This remains the standard today. Those accused of minor offenses that result only in a fine, such as traffic violations, are not entitled to state-funded attorneys.

The term indigent can be misleading. The term poor usually defines it, but most states do not require that a defendant be without any means at all to qualify for appointed counsel. It is hard to be specific about these requirements because every state makes its own rules. The qualifications are sufficiently broad in scope that more than 80% of criminal defendants accused of a felony use appointed counsel for their defense.

Many advocates believe that free legal defense services are underfunded in the United States because the concept of providing tax-funded legal services to “criminals” is politically unpopular. Many believe that this state of affairs causes unacceptably high caseloads, which forces attorneys to recommend actions that are not in the best interest of the client, such as accepting plea bargains.

Retained Counsel

The typical private defense attorney has several years’ experience working with criminal cases as a government employee, such as with a prosecutor’s office or a public defender’s office. Veteran criminal defense attorneys can set very high fees. The amount of fees charged is also related to the complexity of the case and whether the attorney has to appear at trial.


There is an old adage in the legal community that “a lawyer that represents himself in court has a fool for a client.” The very nature of our adversarial system makes it very difficult to mount an effective legal defense for one’s self. It is nearly impossible, for example, to cross-examine yourself without looking foolish. If this is true for legal professionals, then it is even more so for non-lawyers.

Despite the lack of efficacy, the Supreme Court determined in Faretta v. California (1975) that the people have a right to self-representation in criminal cases. There are a few restrictions placed on these individuals. The key legal requirement is that the defendants knowingly and voluntarily waive the right to counsel.

Defendant’s Rights

Woven into the very fabric of our legal system is the idea that the process should be fair to everyone. Fairness often means that the legal system has to treat every individual the same way, regardless of race, creed, religion, sex, and so forth. This idea that everybody has to be treated by the government in the same, fair way is summed up in the term procedural due process. This idea is enshrined in the Bill of Rights and can be found in both the Fifth and the Fourteenth Amendments.

Some critics argue that these measures serve to protect criminals and should accordingly be done away with. This is not a very carefully considered position. Under our legal system, those accused of crimes are assumed innocent until proven guilty in a court of law. If these rights were not protected for all people, then every citizen, regardless of any wrongdoing, would be subject to searches of their persons, vehicles, and houses. They would be subject to arrest, confinement, and questioning under duress or even torture. Most American’s are not willing to accept such blatant abuses of human rights, and so our constitution protects us from them by design. There is just no way to protect the rights of everyday citizens without protecting the rights of criminals along with them until the criminals can be convicted in a court of law.

The Philosophy of the Juvenile System

A central theme of the juvenile justice system is that juveniles should be treated differently than adults. It is assumed that delinquent children, due to a lack of maturity, are less culpable than their adult counterparts are. A critical difference between the juvenile justice system and the adult criminal justice system is that the juvenile justice system is not adversarial in nature, at least philosophically.

Parens Patriae

Early reformers insisted that court proceedings against juveniles were not adversarial, but that the state was proceeding as parens patriae. The Supreme Court has been critical of this idea: “The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme, but its meaning is murky and its historic credentials are of dubious relevance.”

The phrase was taken from chancery practice, where, however, it was used to describe the power of the state to act in loco parentis for the purpose of protecting the property interests and the person of the child. But there is no trace of the doctrine in the history of criminal jurisprudence. At common law, children under seven were considered incapable of possessing criminal intent. Beyond that age, they were subjected to arrest, trial, and in theory to punishment like adult offenders. Prior to the splitting of the criminal justice system into an adult court system and a juvenile court system, the state was not considered to have authority to accord children fewer procedural rights than adults.

The right of the state, as parens patriae, to deny to the child procedural rights available to adults was justified by the assertion that a child, unlike an adult, has a right “not to liberty but to custody.” According to this philosophy, if a child’s parents fail in effectively performing their custodial functions-that is, if the child is “delinquent”-the state may intervene. In doing so, the court does not deprive the child of any rights, because, under the parens patriae philosophy, children have no rights. The court merely provides the “custody” to which the child is entitled. On this basis, proceedings involving juveniles were described as “civil”, not “criminal” and therefore not subject to the requirements that restrict the state when it seeks to deprive a person of his liberty. While popular for an extended period, this logic did not sit well with the civil rights minded Warren Court.

A Constitutional Shift

Most people agree that the establishment of the juvenile justice system without constitutional safeguards in place was motivated by high ideas and a desire to help children. When put into practice, however, the results were not always satisfactory. The Justices of the Warren Court were critical of the unbridled discretion that juvenile judges had in dealing with children’s lives. The intent of the juvenile system was that children would receive careful, compassionate, individualized treatment. At times, the Court argued, these intentions did not translate into fair, efficient, and effective procedures. A review of juvenile court procedures led the Warren Court to conclude that a departure from well-established standards of due process resulted in the arbitrary and capricious treatment of juveniles.

It was for these and other reasons that the Supreme Court became very critical of the philosophy not working in practice: “It is claimed that juveniles obtain benefits from the special procedures applicable to them which more than offset the disadvantages of denial of the substance of normal due process. …the observance of due process standards, intelligently and not ruthlessly administered, will not compel the States to abandon or displace any of the substantive benefits of the juvenile process. But it is important, we think, that the claimed benefits of the juvenile process should be candidly appraised.” The result of that appraisal was a shift toward constitutional safeguards in juvenile courts.

Key Terms

Argersinger v. Hamlin (1972), Assistant U.S. Attorney, City Attorney, District Attorney (D.A.), DocketFaretta v. California (1975), Independent Counsel, Indigent DefendantNolle Prosequi, State’s Attorney, United States Attorney

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Last Updated:  06/04/2021
APA Citation

McKee, A. J.  (2015).  Criminal Justice: An Overview of the System.  Booklocker.

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