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A career in criminal law can be very rewarding and a valuable learning experience. The field is attractive to those who have a strong sense of justice and who are interested in public service. Furthermore, it is a good choice for individuals interested in trial work and litigation. Criminal lawyers generally work either as prosecutors or as defense attorneys. Defense attorneys work either for a public defender organization, as solo practitioners, or in a law firm. Prosecutors work for the government either at the local, city, or county prosecutor’s office, the criminal division of the state attorney general’s office, or the U.S. attorney’s office. In both prosecution and defense work, there are opportunities to work with state or federal criminal laws, or to do appellate appeals rather than trial work. Both the local prosecutor’s offices and public defender organizations hire graduates right out of law school, or after a short time in practice.
In the past, most individuals starting out as criminal defense attorneys or prosecutors had minimal background in criminal law. In fact, even today, most law schools only require one basic criminal law class although there are opportunities to take additional courses in advanced criminal law and criminal procedure. However, the contemporary law student’s exposure to the practical side of criminal law has been enhanced by the development of legal clinics and skills courses. The history of legal education presents an interesting pattern from practical training in its inception, to a more doctrinal and analytical approach, and currently back to an emphasis on practical training in conjunction with traditional theoretical methods.
During the colonial era, Americans who wished to become lawyers obtained a legal education at one of the British Inns of Court. However, those who could not afford a trip to England were trained in an apprenticeship system whereby aspiring lawyers worked under the tutelage of a practicing lawyer. During the American Revolution and thereafter, the apprentice system became more widespread. During these apprenticeships, students would learn the practical skills of a lawyer by doing legal work for the mentor who would also advise and suggest readings in substantive law. However, given the differences in various mentors’ styles and skill in teaching as well as the competing demands of the mentor’s practice, satisfaction with the apprentice system dwindled. Proprietary law schools then began to emerge. These were private schools that were headed by some of the more skilled and popular mentors. Instruction was conducted on a group basis and students received formal lectures on the law, thereby systematizing legal education for the first time.
Eventually, university-affiliated law schools began to emerge. Harvard Law School was established in 1817, and in 1870 the school fostered a revolution in legal teaching when Christopher Columbus Langdell became its dean. Langdell developed the case method of legal instruction, which was based on the assumption that law was a science and that the most appropriate way to teach this science was through the study of appellate cases. The method for teaching these cases has been called the ‘‘Socratic Method’’; students were called upon to state the facts of the case, and what the court decided, and to analyze the court’s reasoning and abstract the legal principles. The professor would then test the student’s understanding by posing a series of hypotheticals and asking the student to apply the reasoning of the case to the new fact patterns. While this method remains a popular teaching method in law schools today, it has been criticized for failing to adequately prepare students for the practice of law. It has been further criticized for being unnecessarily confrontational and unsuitable to the increasingly diverse law school population. Many contemporary law professors have modified the Socratic method or used it in conjunction with other teaching methods.
As early as the 1930s, legal realists argued that law should be taught in terms of how it operated in the real world. However, clinical programs did not gain popularity in law schools until the 1960s, when there was increased funding for provision of services to low-income citizens as well as a growing sense that law schools were failing to adequately prepare students for the practice of law. Today, almost every law school in the country has one or more clinical offerings. There are two types of clinics operating in law schools: in-house clinics and externship placement clinics. In-house clinics are generally small legal offices in law schools that represent low-income clients in a variety of cases. Students take on actual cases under the supervision of a faculty member. In externship clinics, students receive course credit for participating in certain lawyering activities away from the law school in a field placement. In those cases, students are supervised and trained by a supervisor who is generally a practicing attorney at the organization in which the student is placed. There are criminal defense clinics and prosecution clinics in both formats. Alongside the development of legal clinics has been an increase in skills-based courses that teach students such things as interviewing, counseling, negotiation, and pretrial and trial practice through simulation, role playing, mock court hearings, and skills exercises. More and more students interested in careers in criminal law take in-house clinics, externships, or skills courses during their three years in law school, and are thus perhaps more prepared for work as criminal lawyers than their predecessors.
The Prosecuting Attorney
Most law graduates interested in prosecution seek work at the state court level in the local prosecutor’s office. Office titles for local prosecutors include city attorney, district attorney, county attorney, prosecuting attorney, commonwealth attorney, and state’s attorney. City attorneys generally prosecute minor criminal violations classified as misdemeanors under local ordinances or state criminal statutes. Prosecutors at the county or multi-county (district) level prosecute felony offenses (and, in some jurisdictions, serious misdemeanors). While some local prosecutors’ offices hire law graduates to work in their appellate divisions, the bulk of law graduates entering the field work as trial-level assistant prosecutors. Larger prosecutors’ offices also have specialized units dealing with particular types of crime such as narcotics, juvenile prosecution, domestic violence, and sex crimes. Most entry-level attorneys do not work in the specialized units but may be promoted there after several years on the job.
In larger jurisdictions, the local prosecutor’s office hires a number of law graduates each year and typically will begin interviewing candidates in the fall of their third year of law school. Candidates are asked to take part in a series of interviews focusing on their knowledge of criminal procedure, their ability to handle complex ethical issues, and their dedication to public service. District attorneys offices generally look for candidates with internship or clinical experience in a district attorney’s office or legal experience in other governmental offices. They also look for students who enjoy public speaking and can think on their feet, wrestle with difficult problems, and make sound decisions. Skills in trial advocacy or moot court experience are also looked upon favorably. Some of the larger prosecutors’ offices provide a week to several weeks of training before sending new assistants to work. However, much of the training in both small and large prosecutors’ offices occurs on the job. For law graduates who want to get a significant amount of early responsibility and substantial trial practice, the prosecutor’s office is a very good place to work.
The salaries for entry-level assistant prosecutors vary widely and depend largely upon the size of the county and office. Salaries in 1998 ranged from a high of $51,000 to as low as $23,000 (National Law Journal, 1 June 1998, p. B13). In larger offices, new assistant prosecutors are required to make a three-year commitment. Since advancement in the prosecutors’ office is limited, many assistant prosecutors move on after three years. Many go on to private practice as criminal defense attorneys, others enter politics or work at a firm in a different practice area.
Some assistant prosecutors work at the state attorney general’s office. In most states, the attorney general has jurisdiction to prosecute violations of state criminal laws, and deals with issues of statewide significance such as organized and white collar crime, drug trafficking, fraud and embezzlement, and criminal enforcement of environmental protection laws. Assistant State’s Attorneys generally appear regularly in state court, but also spend a great deal of time conducting investigations and drafting motion papers.
Prosecutors can also work at the federal level in Washington, D.C., or in the local United States Attorney’s office. United States Attorney’s offices are divisions of the U.S. Department of Justice, and are responsible for the prosecution of most federal crimes. (Some federal prosecutions are handled by Department of Justice attorneys based in Washington.) Crimes that are uniquely federal include evasion of federal income taxes, counterfeiting, and immigration violations; however, many other federal crimes (especially drug offenses) are also violations of state law that could be prosecuted by state authorities. For the most part, Assistant U.S. Attorneys are hired three to six years out of law school.
Prosecutors occupy a unique position in the criminal justice system in that they exercise a considerable amount of discretion. From the initial arrest to the final disposition, prosecutors determine which defendants are prosecuted, the type of plea bargains that are struck, and the severity of sentences imposed. Before a case comes to trial, prosecutors may decide to accept a plea bargain, divert suspects to a social services agency for an alternative to incarceration program, or dismiss the case entirely for lack of evidence. Attorney General and Supreme Court Justice Robert H. Jackson believed that the prosecutor has ‘‘more control over life, liberty and reputation than any other person in America’’ ( Jackson, p. 31). This broad discretion occasionally can lead to abuse, such as when a prosecuting attorney decides not to prosecute a friend or to overzealously prosecute an enemy. But such behavior is not the norm.
The tasks of an assistant prosecutor are varied. They interview victims, witnesses, police officers, and experts, conduct fact investigations, counsel victims, and negotiate pleas. Furthermore, they do such administrative work as issuing subpoenas, monitoring lineups, ordering lab reports, conducting hearings and trials, and drafting motions. Caseloads of large prosecutors’ offices are quite high, and assistant prosecutors must learn to juggle competing demands. Beginning prosecutors will deal with less serious crimes such as trespass, petty theft, and misdemeanor assaults before they advance to burglary, car theft, robbery, rape, and homicide.
Prosecutors are unique not only because of the breadth of their discretion, but also because their client is the state rather than the individual victim. In this role, the prosecutor must act on behalf of the public good. The Model Code of Professional Responsibility states that ‘‘[t]he responsibility of the public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict’’ (Model Code of Professional Responsibility, EC 713). While called upon to act as a zealous advocate, the prosecutor must also ensure that a defendant’s trial is fair and that the proceedings appear fair to the public. This dual role of protecting the process and securing convictions can be difficult, and prosecutors often struggle to determine which role takes priority in a given situation. The stresses of this conflict as well as the enormous caseloads held by many prosecutors leads to significant burnout. However, many prosecutors find great satisfaction in their jobs and see themselves both as crusaders against crime and champions on behalf of crime victims.
Individuals who enter the field of criminal defense have a strong interest in helping people, and believe in safeguarding the Constitution. Such individuals generally have a dedication to serving the underrepresented and to protecting individuals against the power of the state. The majority of criminal defense lawyers work as public defenders, contract attorneys, or assigned counsel, and serve those too poor to retain private counsel. This is primarily because the majority of those accused of crime are poor people. According to a 1997 National Legal Aid and Defender Association report, public defenders and court appointed counsel typically represented over 75 percent of the criminally accused in the United States (Hartmann, p. 2).
While taken for granted today, the right to counsel for indigent defendants is a relatively new concept and arose over a long period of time. The Sixth Amendment of the Bill of Rights of the U.S. Constitution grants any individual accused of a crime the right to effective assistance of counsel. However, for many years this constitutional guarantee applied only to criminal defendants who had the financial resources to hire a private attorney. It was not until 1963, in the case of Gideon v. Wainwright, 372 U.S. 335 (1963), that the right to appointed counsel was extended to all indigent defendants facing a felony in state court, and it was not until 1972 that this right was extended to misdemeanor cases involving a sentence of imprisonment (Argersinger v. Hamlin, 407 U.S. 25, 1972).
In response to these decisions, federal and state governments have devised a variety of means to provide legal services to indigent criminal defendants. There are three basic models for the delivery of legal services to the indigent criminally accused. Public defender programs are public or private nonprofit organizations with a staff of full-time attorneys who provide defense services to indigent defendants. Some of the larger defender organizations have specialized practices in areas such as juvenile defense, capital defense, and appellate work. The second model is the assigned counsel system, in which individual criminal cases are assigned to private attorneys on a systematic or ad hoc basis. In this system, the judge assigns the case either to an attorney in the courtroom, one who is on a special list, or the first attorney who comes to mind. The state or county compensates these attorneys on a case-by-case basis. The third model is that of a contract system in which states contract with an individual attorney, group of attorneys, or some other entity to provide representation in a certain number of cases or all cases within a jurisdiction. Many states use a combination of these models.
Representation on the federal level is similar to that on the state level. There are assigned counsel, contract attorneys, and federal public defender organizations. Attorneys hired to work as federal defenders are experienced criminal or trial attorneys from state or local public defender organizations or large private firms. This is because federal criminal cases tend to be complex, requiring more sophisticated trial skills. Federal defenders work on issues involving organized crime, large-scale drug cases, white-collar crime, or fraud cases.
Attorneys in all three types of defender systems have suffered the consequences of underfunding by both state and federal governments. A 1992 report revealed that the defense function received less than one-third of the federal, state, and local funds expended by the prosecution (Bureau of Justice Statistics, p. 2). A 1997 report by the National Legal Aid and Defender Association concluded that ‘‘[t]here is a crisis in defender services. Historically underfunded, the strain on the indigent defense component of the criminal justice system has been exacerbated by the federal government’s declared ‘war on drugs’ fought with a zero tolerance policy that promotes the criminalization of more behavior and Draconian penalties (such as ‘three strikes’ and mandatory sentencing laws) . . . . This failure to fairly fund the indigent defense component of the criminal justice ‘eco-system’ has resulted in ‘overburdened public defenders, the incarceration of the innocent, court docket delays, prison overcrowding, and the release of violent offenders into the community’ ’’ (Hartman, p. 1).
Despite the financial concerns of public defender organizations, they have long been recognized as a training ground for criminal defense attorneys. Many of the larger offices provide excellent training programs and ongoing supervision. Moreover, because most courts require contract or assigned attorneys to have some experience, most defense attorneys begin their careers at public defender offices. Public defender organizations hire graduates out of law school and seek those who have had internships in similar organizations, trial skills, and a demonstrated commitment to public interest law. Salaries for entry-level public defenders range from $29,000 to $44,000 (National Law Journal, 1 June 1998, p. B14). New public defenders have a great deal of early responsibility, and handle their own cases from the beginning. Typically, new public defenders handle misdemeanors for several years and then advance to felonies.
Defense attorneys spend most of their day in court. They represent their clients at arraignment, bail hearings, pretrial motions, plea bargaining, trials, and sentencing hearings. Defense attorneys also evaluate the strengths and weaknesses of the prosecutor’s case and advise their clients about the legal consequences of certain actions. They are called upon to listen closely to the client and explain the law and the development of the case and strategies in terms the client can understand. Defense attorneys also engage in plea bargaining and can negotiate for probation, a drug treatment program, or other alternatives to incarceration. Trial work is also an important part of the defender’s job, and they use crossexamination and other techniques to reveal weaknesses in the state’s case. Criminal defense attorneys also conduct investigations of crime scenes, interview witnesses, and perform legal research. They draft motions to suppress evidence or confessions, and conduct suppression hearings.
In United States v. Wade, 388 U.S. 218, 256 (1967), Supreme Court Justice White, comparing defense attorneys with prosecutors, stated that ‘‘defense counsel has no comparable obligation to ascertain or present the truth. Our system assigned him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty.’’ This duty to prevent conviction and fight against violations of the defendants’ rights must not, however, exceed the attorney’s ethical obligation. Defense attorneys cannot mislead the court by providing false information, nor can they knowingly allow the use of false testimony. This weighty responsibility is clearly stressful and, combined with heavy caseloads and limited resources and the knowledge that the client’s freedom is at stake, leads to tremendous burnout in the field. A 1978 study of criminal defense attorneys found that those who enjoyed their role of defender in criminal cases stayed with the public defender’s office because of the financial security. Those who left did so after two to three years, and far more went to the prosecutor’s office than to private practice in the criminal field (Wice, p. 85). Some public defenders, however, move on to the appellate or federal level. Many of those who stay on as public defenders at the trial level are sustained by the fact that they are playing an essential role in the adversarial system of this country and, in so doing, are protecting the rights of all citizens.
- Bureau of Justice Statistics. Justice Expenditure and Employment, 1990. Washington, D.C.: U.S. Department of Justice, 1992.
- COLTON, AMY ‘‘Note: Eyes to the Future, Yet Remembering the Past: Reconciling Tradition with the Future of Legal Education.’’ University of Michigan Journal of Law Reform 27 (1994): 963.
- DEFRANCES, CAROL, and STEADMAN, GREG W. ‘‘Prosecutors in State Courts, 1996.’’ Bureau of Justice Statistics Bulletin. Washington, D.C.: Bureau of Justice Statistics, National Institute of Justice, 1998.
- ENGLISH, MICHAEL ‘‘Note: A Prosecutor’s Use of Inconsistent Factual Theories of a Crime in Successive Trials: Zealous Advocacy or a Due Process Violation.’’ Fordham Law Review 68 (1999): 525.
- HARTMAN, MARSHALL Blue Ribbon Committee on Indigent Defense Services. Washington, D.C.: National Legal Aid and Defender Association, 1997.
- JACKSON, ROBERT ‘‘The Federal Prosecutor.’’ Address delivered at the Second Annual Conference of United States Attorneys, 1 April 1940. Repr. in Journal of the American Institute of Law & Criminology 31 (1940): 3.
- MOUNTS, SUZANNE. ‘‘Public Defender Programs, Professional Responsibility, and Competent Representation.’’ Wisconsin Law Review (1982): 473.
- NEUBAUER, DAVID America’s Courts and the Criminal Justice System. Belmont, Calif.: Wadsworth, 1996.
- WICE, PAUL Criminal Lawyers: An Endangered Species. Beverly Hills, Calif.: Sage, 1978.