Whose side is the prosecutor on?

An attorney's duty is to represent her client's interests. For a criminal defense attorney, this may not be easy but it is simple. The client is the defendant. With rare exceptions, the defendant wants to get off.

The prosecutor represents the government - of the people, by the people and for the people. This includes the victim, police, the judge, jurors, witnesses, the defendant, co-defendants - everybody. This makes for a complicated client with conflicting interests. Recognizing this, the Supreme Court in Berger v. U.S., 295 U.S.78, 88 (1935) said,

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such he is in a peculiar sense the servant of the law [.]

The prosecutor is not on the side of the police - or the victims, or any other particular persons. The prosecutor's job is to serve the law.

"Objection, Your Honor!"

When an attorney objects, she must give a legal ground. When officers in courtroom testimony training suggest that the prosecutor should object to a cross examination I am subjecting one of their own to, I ask them, "On what grounds?"

"Relevance!" "Asked and answered!" "Badgering the witness!"

There are two reasons these objections are seldom effective. One is legal. The other is tactical.

As a legal matter, most judges allow wide latitude on cross examination. They tend to allow even wider latitude when defense attorneys are cross examining officers, crime lab personnel, or other professionals who regularly testify for the prosecution. Judges figure testifying comes with the job for these witnesses. They are more experienced and prepared to be cross examined vigorously than lay witnesses.

Relevance. Just about anything an officer thought, felt, saw or heard during the investigation is arguably relevant for initial questioning because it might:

• Have influenced her investigation - what she did or didn't do, or
• Go to the issue of whether she was or is biased.

Asked and answered may work, but only if the officer hasn't changed any part of his answer or added any additional information. If he has, the defense attorney may continue to question the officer about the change or the added information.