This is Dennis Boren, criminal defense attorney, and former felony prosecutor. This post is adapted from a conversation between myself and the man who trained me, Mr. James Farren. After working with me James Farren went on to serve as a Randall County criminal district attorney for 24 years.


The Relationship between the Defense Attorney and the Criminal Prosecutor

It is an adversarial relationship only in the professional sense of the word. The defense attorney’s role in a very summary sort of explanation is to provide the very best defense he or she can for their client within the limits of the law.

The prosecutor’s role is to, first of all, seek justice, not just convictions. In fact, it is in the oath that prosecutors take when they are sworn in. Prosecutors are the only attorneys in the criminal justice system, or elsewhere for that matter, that take an oath to seek justice.


Seeking Justice

Just because defence attorneys don’t take an oath doesn’t mean that they are not also seeking justice.

What is sometimes confusing to the layman is that justice and truth are not always the same thing. In the criminal justice system, justice primarily concerns the person accused. Did they receive all of the protections of the law that our system provides? Was due process provided? Was there a fair trial? Did they have an opportunity to consult with their attorney and present evidence and enjoy discovery? “Justice” pertains to items of that nature.

Justice is giving the accused person a fair process. Justice doesn’t depend on the result.  The accused must have a fair opportunity to challenge the accusations made by the state against them

The layman would think of justice as a perfect match between convictions and crimes. In a perfect world, that would be true, but the criminal justice system is limited because it’s a human-created system.


The Rights of the Accused

The first concern of the justice system is to protect the rights of the accused. We, as humans, are often morally concerned about the rights of the victim, and the system provides for that as well. But the first goal is to make sure that when all the power of the state is brought against one individual, the state plays fair.

One of the mechanisms that ensures the accused is given a fair trial is the discovery and turning over exculpatory evidence, or evidence that would assist in proving the innocence of the defendant.

If the defense has information in their possession that would be helpful in seeking a conviction, they have no legal obligation to provide that information to the prosecution. Prosecutors have extremely limited access to what’s in the defences file and what information they have. On the other side of the aisle, the defense has a tremendous ability to see the file of the prosecutor and to learn everything that’s in that file. And in Texas, after the Michael Morton act, that’s even more true.


The Rules of Brady and the Michael Morton Act 

Almost every state has to abide by the Rules of Brady. If the prosecution is aware of exculpatory evidence, evidence that might help the defendant either show that he or she didn’t commit the act or that the punishment should be lessened, then under the Brady Ruling, the prosecution has an obligation to share that evidence with the defense.

But Texas goes beyond that. Texas has the Michael Morton Act, which essentially provides that the prosecution must share their entire file with the defense. The prosecution must ensure that the defense has all of the information in the prosecutions file. And if new information comes to light, then the prosecution has an obligation to provide that to the defense, even though it may hurt the chances of conviction.

The court has to be satisfied that the prosecution has complied with the requirements of the Michael Morton Act before the trial begins. If the court is not convinced of that, under law, the court cannot allow the trial to proceed. The judge must be satisfied that the Brady Requirements of providing information have been completed, or else they will not allow the matter to proceed, whether it is a plea bargain or a full-blown trial.


In Conclusion

I always recommend that if you have any interaction with a police officer, get a record of it.  Just turn on your video, or at least your audio app on your phone, and document it. It will save you a lot of grief. I hope this was helpful. We’ll have more from James Farren in the future.



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