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Is it harder to defend or prosecute?

NeverTrump

NeverTrump

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I've been watching a lot of law and order and true crime shows recently and along with the supposed rigged system cases we have seen in previous shootings or whathave you, it has come to my attention that the defense has the harder case. They have to give people reasonable doubt that their client didn't do it! While some may say that this is easy, it's only easy if you don't have a heart, and don't care about the damage you do to the supposed rigged system. This even means creating conspiracy theories out of thin-air and using unrelated facts that have nothing to do with the case to back it up.

So that's just my observation, do you think differently?
 
ModerateGOP said:
I've been watching a lot of law and order and true crime shows recently and along with the supposed rigged system cases we have seen in previous shootings or whathave you, it has come to my attention that the defense has the harder case. They have to give people reasonable doubt that their client didn't do it! While some may say that this is easy, it's only easy if you don't have a heart, and don't care about the damage you do to the supposed rigged system. This even means creating conspiracy theories out of thin-air and using unrelated facts that have nothing to do with the case to back it up.

So that's just my observation, do you think differently?
Click to expand...

Obviously it depends on the case and the reliability of the evidence the prosecutor has. I have seen instances in court rooms where it seems the prosecutor has had a very hard time because the defense has been good at casting a doubt to the charges and I have seen where the defense was struggling big time and the only question was really how much time is the defendant going to serve. I would say the prosecutor overall has the tougher job when the evidence is subjective.

Fictional T.V. court shows are mostly sensationalism and is rarely depicting real life. In most cases the court room is rather a boring place.
 
ModerateGOP said:
I've been watching a lot of law and order and true crime shows recently and along with the supposed rigged system cases we have seen in previous shootings or whathave you, it has come to my attention that the defense has the harder case. They have to give people reasonable doubt that their client didn't do it! While some may say that this is easy, it's only easy if you don't have a heart, and don't care about the damage you do to the supposed rigged system. This even means creating conspiracy theories out of thin-air and using unrelated facts that have nothing to do with the case to back it up.

So that's just my observation, do you think differently?
Click to expand...

It is easier to prosecute thanks to the power to plea bargain and, if a rare case actually gets to trial, the instruction of the jury (or power of the judge) to allow consideration of lesser included offenses.

Consider a simple speeding charge of 59 mph in a 35 mph zone (for 3 points and $300 fine with a possible addition of $100 in court costs) - is it easier for the defendant to assert (prove) that they were going 35 mph (or less), for the prosecution to offer a reduced charge/sentence 40 mph in a 35 mph zone (for 1 point and a $100 fine with no court costs) or to assert that a paid state "expert" with calibrated radar assistance "witnessed" the defendant exceeding the posted speed limit?
 
ModerateGOP said:
I've been watching a lot of law and order and true crime shows recently and along with the supposed rigged system cases we have seen in previous shootings or whathave you, it has come to my attention that the defense has the harder case. They have to give people reasonable doubt that their client didn't do it! While some may say that this is easy, it's only easy if you don't have a heart, and don't care about the damage you do to the supposed rigged system. This even means creating conspiracy theories out of thin-air and using unrelated facts that have nothing to do with the case to back it up.

So that's just my observation, do you think differently?
Click to expand...

Yeah, I think the complete opposite. The prosecution has the harder case. The defense is able to see the State's entire case well before trial. Not true for th defense. There are no Perry Mason moments in the courtroom. Either there never were, or they have become a thing of the past.

It's the defense's job to put on a vigorous defense. Our system doesn't really work without that. I picture defense attorneys telling their clients, "I don't want to know if you did it. I want to know who might have done it besides you...what might you have been doing there..." Conjecture and assumption is part of the defense attorney's playbook. Not so the prosecution.

The defense's job almost HAS to be easier. When the State throws it's full weight behind a prosecution, including an almost limitless budget, the defense MUST have an advantage or it would always lose.
 
ModerateGOP said:
I've been watching a lot of law and order and true crime shows recently and along with the supposed rigged system cases we have seen in previous shootings or whathave you, it has come to my attention that the defense has the harder case. They have to give people reasonable doubt that their client didn't do it! While some may say that this is easy, it's only easy if you don't have a heart, and don't care about the damage you do to the supposed rigged system. This even means creating conspiracy theories out of thin-air and using unrelated facts that have nothing to do with the case to back it up.

So that's just my observation, do you think differently?
Click to expand...

Defense is nearly always harder, imo.
Juries come predisposed thinking that the accused is guilty.

The defense has to overcome that.
 
Harry Guerrilla said:
Defense is nearly always harder, imo.
Juries come predisposed thinking that the accused is guilty.

The defense has to overcome that.
Click to expand...

I agree completely. In the 110 years since the Sparf decision, US juries have become just rubber stamps for government prosecutions. Yes, there are a few notable exceptions, but for the most part US juries vote guilty.
 
What horse****. A lot of conspiracy nuts and liberal twits have opinions but they don't make sense.

The prosecution needs to prove guilt beyong a reasonable doubt. The defense needs to prove nothing. Does the name O.J. Simpson ring a bell. "If the glove doesn't fit, you must acquit." That's called evidence. If my life depends on it, I couldn't get a grocery sack over my head.

Plea bargaining should be outlawed because it benefits the attorneys and the guilty people and no one else. It penalizes innocent people and the victims of crimes.

The prosecution must prove a specific case. The Defense has to prove nothing but can constantly throw out, "Isn't it possible...." They sometimes get in trouble by making "isn't it possible" stories that are so ludicrous the jury just rolls their eyes.

The system isn't a system. It is, in my experience, totally corrupt. But, to say the defense has a harder job than the prosecution is foolish.

Years ago I was called to testify on a case where an innocent man was on trial. I had occasion to ask the defense attorney how many innocent people he'd represented. "Do you mean....?" "No, I don't mean any of the legal nonsense. I mean, didn't do it, wasn't there, wrong guy, big mistake." The lawyer paused and said, "In fourteen years this is my fourth." Most of his clients had been convicted because they were guilty. A lot of clients who were guilty got off.
 
MaggieD said:
Yeah, I think the complete opposite. The prosecution has the harder case. The defense is able to see the State's entire case well before trial. Not true for th defense. There are no Perry Mason moments in the courtroom. Either there never were, or they have become a thing of the past.

It's the defense's job to put on a vigorous defense. Our system doesn't really work without that. I picture defense attorneys telling their clients, "I don't want to know if you did it. I want to know who might have done it besides you...what might you have been doing there..." Conjecture and assumption is part of the defense attorney's playbook. Not so the prosecution.

The defense's job almost HAS to be easier. When the State throws it's full weight behind a prosecution, including an almost limitless budget, the defense MUST have an advantage or it would always lose.
Click to expand...

I think the prosecution via the state has an easier job. Between FBI forensics who tamper with evidence, dishonest "experts", and lying police: all at government expense. Meanwhile if the defense has a public defender then forget about the case getting the time it needs. You might as well allow the defendent a computer and access to google to defend themselves.
 
Patrickt said:
1. The prosecution needs to prove guilt beyong a reasonable doubt. The defense needs to prove nothing. Does the name O.J. Simpson ring a bell. "If the glove doesn't fit, you must acquit." That's called evidence. If my life depends on it, I couldn't get a grocery sack over my head.

2. Plea bargaining should be outlawed because it benefits the attorneys and the guilty people and no one else. It penalizes innocent people and the victims of crimes.

3. The prosecution must prove a specific case. The Defense has to prove nothing but can constantly throw out, "Isn't it possible...." They sometimes get in trouble by making "isn't it possible" stories that are so ludicrous the jury just rolls their eyes.

4. to say the defense has a harder job than the prosecution is foolish.

5. Years ago I was called to testify on a case where an innocent man was on trial. I had occasion to ask the defense attorney how many innocent people he'd represented. "Do you mean....?" "No, I don't mean any of the legal nonsense. I mean, didn't do it, wasn't there, wrong guy, big mistake." The lawyer paused and said, "In fourteen years this is my fourth." Most of his clients had been convicted because they were guilty. A lot of clients who were guilty got off.
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1. OJ proves my point though. I think the prosecution had the easier case before OJ got his expensive lawyers to think up the conspiracy theory for people to believe. Sure, they got enough of the jury's minds changed and both sides rigged it into swiss cheese, but the facts were always on the prosecution side. The lawyers on the defense and there were many, had a harder time coming up with The Narrative!

2. Uh plea bargaining saves the taxpayer and the people a lot of time and headaches.

3. But as you say, plea bargaining should be made illegal, it's easier for the state to say, you were speeding than it is for you to say you weren't. How many people in jails say that it wasn't them who did it? How many people are actually innocent?

4. IMHO you haven't said anything that leads me to believe the defense job is easy. You just say it is, and we are supposed to take your word for it? I guess it's easy if you like to make up stories, but a good person isn't usually very good at doing that.

5. OK but that proves my point as well. The prosecution has the easier case. The Defense often knows their client did it and will usually try to make a plea deal. Especially if they are a lowly state appointed defense lawyer.
 
MaggieD said:
The defense's job almost HAS to be easier. When the State throws it's full weight behind a prosecution, including an almost limitless budget, the defense MUST have an advantage or it would always lose.
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I guess I am not one for making up conspiracy theories, because otherwise I do not see what advantage the defense has that you say. Unless if you can make the case for other circumstances that might affect the case you are talking about, I think proving that someone didn't do the crime, unless the prosecution royally screwed up is really hard.
 
ModerateGOP said:
I guess I am not one for making up conspiracy theories, because otherwise I do not see what advantage the defense has that you say. Unless if you can make the case for other circumstances that might affect the case you are talking about, I think proving that someone didn't do the crime, unless the prosecution royally screwed up is really hard.
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That's why the defense doesnt HAVE to prove their client didn't do it.
 
MaggieD said:
That's why the defense doesnt HAVE to prove their client didn't do it.
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I still don't see how that is easier. You are still making up stories you know to have nothing to do with the case at hand or something else along those lines in order to try to change people's minds. Then there is also jury selection that is hard for the defense to try to get enough minds they think can be swayed in their favor.
 
ModerateGOP said:
I still don't see how that is easier. You are still making up stories you know to have nothing to do with the case at hand or something else along those lines in order to try to change people's minds. Then there is also jury selection that is hard for the defense to try to get enough minds they think can be swayed in their favor.
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Well, you may be right. Just seems to me when one side can use lies and obfuscation and the other can't, the liar has a distinct advantage.
 
The view is skewed, because so much happens outside the courtroom.

In many areas, the court system is completely overloaded, and the prosecutors have to prioritize which cases need to be prosecuted fully. Plea deals allow them to save resources for (subjectively) more important cases. This is the stage that likely breeds the most corruption.

Additionally, most people accused of crimes are guilty to some extent. People don't generally call the police for no reason, and police don't generally arrest people for no reason. By the time it reaches court, it has cleared several hurdles intended to to weed out weak cases, unlawful arrests, or crimes that are not a priority to enforcement. What remains are the strongest cases for prosecution.

So we have a conviction rate of 75-85%, but that's not necessarily because it's biased towards guilt, but because the cases are repeatedly distilled before that point.
 
MaggieD said:
Yeah, I think the complete opposite. The prosecution has the harder case. The defense is able to see the State's entire case well before trial. Not true for th defense.
Click to expand...
\

That is more myth than reality, at least in my state. It mostly depends on the policy of the prosecutors' office as the court rules on discovery are narrow and inexact. As for the original question, I imagine it depends on whether or not there is video/DNA, and how high stakes the case is.
 
ModerateGOP said:
I've been watching a lot of law and order and true crime shows recently and along with the supposed rigged system cases we have seen in previous shootings or whathave you, it has come to my attention that the defense has the harder case. They have to give people reasonable doubt that their client didn't do it! While some may say that this is easy, it's only easy if you don't have a heart, and don't care about the damage you do to the supposed rigged system. This even means creating conspiracy theories out of thin-air and using unrelated facts that have nothing to do with the case to back it up.

So that's just my observation, do you think differently?
Click to expand...
I'm going to take the question only for cases that make it to court, and ignore plea bargains, which are another topic by itself, IMO.

I watch a lot of these shows, too, in addition to reading a lot on the subject, and I agree... prosecuting is easier. Far easier. And there's one primary reason for this, and it is bigger than most people realize: As a general rule, judges and juries are pre-biased in favor of the police and the justice system. Certain high-profile media events notwithstanding, the vast majority of people, the type that would make it onto a jury especially, believe the police are vigilant and honest and trustworthy. They believe the police would be unlikely to make a mistake and they believe the police certainly would never lie.

Add in much larger budgets via taxes for experts, and so on, and the deck gets stacked even higher.

The bar is set high for prosecution... on paper. In reality, the bar is lower than it is supposed to be, to the point that the defense doesn't just need to cast doubt, but needs to virtually prove not only innocence, but sometimes also who IS guilty.
 
ModerateGOP said:
I've been watching a lot of law and order and true crime shows recently and along with the supposed rigged system cases we have seen in previous shootings or whathave you, it has come to my attention that the defense has the harder case. They have to give people reasonable doubt that their client didn't do it! While some may say that this is easy, it's only easy if you don't have a heart, and don't care about the damage you do to the supposed rigged system. This even means creating conspiracy theories out of thin-air and using unrelated facts that have nothing to do with the case to back it up.

So that's just my observation, do you think differently?
Click to expand...

I know a lawyer and it's definitely defense
 
MaggieD said:
Well, you may be right. Just seems to me when one side can use lies and obfuscation and the other can't, the liar has a distinct advantage.
Click to expand...

Only amongst the gullible does the liar have the advantage.
 
Thoreau72 said:
Only amongst the gullible does the liar have the advantage.
Click to expand...

Exactly. The prosecution has the advantage. Witholding exculpatory evidence to police who flat out lie to experts who make misleading statements. The ball is always in the Prosecution's court because they have a virtually unlimited amount of resources.
 
ModerateGOP said:
I've been watching a lot of law and order and true crime shows recently and along with the supposed rigged system cases we have seen in previous shootings or whathave you, it has come to my attention that the defense has the harder case. They have to give people reasonable doubt that their client didn't do it! While some may say that this is easy, it's only easy if you don't have a heart, and don't care about the damage you do to the supposed rigged system. This even means creating conspiracy theories out of thin-air and using unrelated facts that have nothing to do with the case to back it up.

So that's just my observation, do you think differently?
Click to expand...

In my professional experience, the defense always has the harder case. It becomes far harder on appeal and the higher one tries to go.

The legal rules are all slanted heavily in the prosecution's favor, especially on appeal. Take one example: if you move to suppress evidence, you are likely to get a suppression hearing. The only people who testify will almost always be police officers. Their testimony will be accepted unless it is directly contradicted by physical evidence, like a video tape. The defendant has a supposed right to testify, but they don't for one very simple reason: the prosecutor is allowed to then act like it's trial and ask about anything. That testimony can then be offered directly into the record at trial. So,

1. This means that in order to offer your own evidence at the suppression hearing, you have to decide before trial, before you even know the prosecution's full case, whether or not to provide testimony that will be used at trial;

2. You set yourself up to be tripped up by the prosecutor's questions and damn yourself at the eventual trial (it's actually really easy for an innocent person, nervous about facing jail, to trip up - talk about high pressure);

3. The defense does NOT get to question a bunch of prosecution witnesses it expects to see at trial about trial issues.

So the judge hears only one side of the story, and it's a side they almost always accept. Again, unless the police catch themselves in lies. Or, occasionally, testify truthfully about what they did and then it turns out that that simply wasn't constitutional.


Further, just about everyone is biased against the defendant; there's an inherent assumption that he wouldn't be facing trial if he didn't do something. Quite a lot of people are also biased against the defense attorney, because they figure you just have to be a slimeball if you represent an accused slimeball (this does include some judges). It's already a national passtime to bash lawyers anyway.....




Also: nothing you see on TV is ANYTHING like an actual courtroom proceeding.
 
Yeah, and to correct some nonsense in earlier posts:

No, the defense is not allowed to lie" The defense is not allowed to make things up. The type of scummy defense attorney typically appearing in TV fiction would likely get disbarred within a week.



The defense can certainly present its own evidence, but otherwise its main angle is showing that the prosecution's evidence just isn't as strong as it sounded in the opening statement.

Lie to the court, get tossed in jail for contempt and get your law license suspended/yanked.

Suborn perjury, and now you've got a serious criminal charge on you as well.

(I submit the notion that defense attorneys have to lie to win cases is part of the anti-defense bias I mentioned, a bias which contributes to the list of difficulties faced by the defense).




MaggieD said:
The defense's job almost HAS to be easier. When the State throws it's full weight behind a prosecution, including an almost limitless budget, the defense MUST have an advantage or it would always lose.
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What?

The defense does almost always lose.

But really, you cannot logically draw any inference from the rate of success or failure alone. If the government routinely brought garbage cases just to give it an old college try, they'd lose a lot. That wouldn't mean that the defense had an easier job in some structural sense, it would just mean that the DA"s office is making poor charging decisions. So success rate could just as easily reflect the strength of cases the prosecutor chooses to bring. Or it could reflect any other number of things.

In reality, the cases where guilt is most obvious get plead out. (A ton get plead out since a poor person will be stuck in jail awaiting trial for longer than the sentence they face if they plead, so they plead just to get out earlier). The cases that are closer to the line are tried because neither side wants to plead. The prosecutor wants the biggest conviction they can get on their record and the defendant wants to try for acquittal. And in that context, again, the defense almost always loses.




The only situation I'm aware of that is different appears to be OUI cases in MA. For some reason, defendants appear to have great success rates there. Maybe it is in part because, as someone pointed out, quite a lot more people than are willing to admit it have driven drunk and feel for the defendant.
 
Mr Person said:
In reality, the cases where guilt is most obvious get plead out. (A ton get plead out since a poor person will be stuck in jail awaiting trial for longer than the sentence they face if they plead, so they plead just to get out earlier). The cases that are closer to the line are tried because neither side wants to plead. The prosecutor wants the biggest conviction they can get on their record and the defendant wants to try for acquittal. And in that context, again, the defense almost always loses.
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What about the defendant's right to a speedy trial?

Many years ago I heard someone say that a defendant *can* (depending on the case) put to prosecution at a disadvantage if they demand a speedy trial, as the prosecution loses proper time to put together a better case.

And that does have some logic to it, but the flip side would be that it would put the defense at the same disadvantage.

What are your thoughts on this?
 
radcen said:
What about the defendant's right to a speedy trial?

Many years ago I heard someone say that a defendant *can* (depending on the case) put to prosecution at a disadvantage if they demand a speedy trial, as the prosecution loses proper time to put together a better case.

And that does have some logic to it, but the flip side would be that it would put the defense at the same disadvantage.

What are your thoughts on this?
Click to expand...


Well, it's been a while since I touched a speedy trial issue.

As to the specific instances of plea bargaining I mentioned, it's generally poor defendants facing low-grade charges. Say, someone facing an A&B charge for a fight that didn't really leave anyone seriously hurt. Maybe they'd get a few months if any time after trial, but they'd probably have to wait as long for trial (or more, depending). If they stay in jail, they lose their job and housing if they hadn't already, which makes an eventual acquittal an generally empty victory. So they plead.

In general, it's usually in everyone's interest to get to trial quickly. Witnesses' memories will become less clear, which doesn't necessarily help the defense, meanwhile certain sorts of memories such as a witness having ID'd the defendant as the bad guy actually get more ingrained. Defense witnesses may become unavailable, whether they moved away or for some other reason. Basically, you just want enough time to fully master the case, settle on the theory of defense, and make sure all the necessaries are resolve before trial, like motions to suppress. Then, if the Commonwealth drags and drags without reason, you make noises. Usually that isn't a problem.

Actually, the main issue that comes up around scheduling for cases that actually do get to trial is not speedy trial problems. It's that the prosecution dumps a load of evidence on the defense a couple weeks before trial and then says "ok, now we're ready." Then the defense is stuck begging the court to give them more time to review it all while struggling to do so in case they don't get the time. (I recall one case where they dumped two bankers boxes of printed out cell tower locations for multiple cell phones over a good deal of time. The defense had to learn about how cellphones and cell tower worked, learn how to interpret the printouts, and then try to relate that to what it knew of the government's case......in the two weeks they had left. The judge refused to give them more time to process this stuff).



The rules on the time limits vary. There's the federal constitutional right, a federal speedy trial act, and various states have their own rules.
 
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