INTRODUCTION

LAWYER AS A PROSECUTOR

According to the Philippine’s Revised Rules on

Criminal Procedure effective December 1, 2000, the
initial step in any criminal prosecution is the
complaint that a crime has been committed, unless
the arrest is made without a warrant.

The complaint may be made by a private citizen who

is injured by the offense, by some private citizen
who happens to see it committed, by a police officer,
or by some member of the staff of the prosecuting
office. It may be made to the sheriff or his
deputies, to the coroner, to the constable, to the
municipal police authorities, or to the prosecuting
attorney. It may be presented directly to a
magistrate or a justice of the peace by a person
seeking the issuance of a warrant for the arrest of
the offender.

After the complaint has been received by some law

enforcement authority, it becomes necessary to
determine whether or not a crime has actually been
committed and, if so, what is the nature of the
offense and who may be the offender. This stage of
the process may be an inquest by the coroner and his
jury, it may be an extensive criminal investigation
by the police department, the sheriff, or the
prosecutor, or it may be merely a brief questioning
of the complainant by the police or prosecutor. If
it is found that a crime has actually been committed
and the offender is suspected or known, then comes
the next stage of the process Which is the arrest of
the suspect.

These preliminary stages may have been eliminated,

of course, if the arrest has been made at the time
of the offense by a private person, or by a police
officer who was present, if it was made by police
officer who arrived immediately after the offense
and to whom the suspect was pointed out by those who
did see the crime committed, or if the arrest was
made later by a police officer "on suspicion." If
the complaint and investigation have preceded the
arrest, then it is made by a sheriff or other peace
officer armed with a warrant which has been sworn
out by someone who has been injured by or who
witnessed the crime or by the police.

Section 1, Rule 112 of the Revised Rules on Criminal

Procedure provides that preliminary investigation is
an inquiry or proceeding to determine whether there
is sufficient ground to engender a well-founded
belief that a crime has been committed and the
respondent is probably guilty thereof, and should be
held for trial.

Once a preliminary investigation has been completed,

the prosecutor decides whether or not to prosecute.
If the prosecutor believes that an offense has been
committed that comes under the category of general
prosecution, and that there is sufficient evidence
against the suspect, the prosecutor is obliged to
bring a case against the person in question. This is
referred to as the absolute requirement to prosecute.
According to certain regulations, however, the
prosecutor can in exceptional cases decide not to
prosecute, despite the fact that the case can be
proved.

In the event of a crime for which a prison sentence

is not the normal outcome, the prosecutor can serve
a fine or a suspended sentence, referred to as an
order of a summary imposition of a fine. If the
suspect gives his or her approval, the case does not
have to be tried in court – the summary imposition
of a fine is equivalent to a court ruling.
The prosecutor’s role is to independently lead
criminal investigations, make decisions on charges
and take cases to court. The hearing is set by the
prosecutor’s formulation of the charges. (Perklev,
2018)

The scope of the duty of a prosecutor is summarized

by the US Supreme Court in the case of Berger v
United States, where it was observed that:
[The prosecutor] may prosecute with earnestness and
vigor – indeed he should do so. But, while he may
strike hard blows, he is not at liberty to strike
foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to
bring about a just one.

The prosecutor plays a pivotal role in the

administration of criminal justice.

The Attorney-General is constitutionally conferred

the discretion to charge any person for any offence
committed. It has been said that the Prosecution
possess the greatest part of discretionary power in
the judicial system (Chong, 2011). Given that this
discretion is only reviewable on limited grounds,
needless to say, a prosecutor’s decision to charge a
person has great impact on the lives and liberty of
those affected. It may involve imprisoning a
dangerous member of society to prevent him or her
from inflicting further harm on society at large. On
the other hand, it may deprive a family of their sole
breadwinner, putting financial and emotional strain
on the family members. It is therefore trite that
this discretion has to be exercised with extreme care
and after a deliberate and thorough process (Chong,
2011).
The common perception when one thinks of lawyers
involved in litigation is that they can and should
advance their client’s interests before the courts,
at all costs. After all they are duty bound to act
in the best interest of the client; this duty is
however, subject to the overriding duty to the
“interests of justice, public interest and
professional ethics” (PUBLIC SAFETY—MUNICIPAL COURTS
2000).

But who is the client of the Prosecutor in the

administration of criminal justice? The answer to
that question in itself defines the role of the
Prosecutor. It has been said time and again that the
Prosecutor does not act as counsel for any particular
person or party. His client is neither the Attorney-
General nor the Government and as well as his client
is also not the victim. Instead, his client is
society. The accused, the Court and the community
are entitled to expect that in performing his
function in presenting the case against an accused
person, the Prosecutor will act with fairness and
detachment with the sole and unadulterated objective
to establish the whole truth in accordance with the
law.

The role of the Prosecutor therefore is not simply

one of crime control. His role is to seek and achieve
justice, and not merely to convict. The role is to
be discharged with an ingrained sense of dignity and
integrity. That is not to say that the Prosecutor
should not care about the outcome of the case.
Because the decision to charge an accused is taken
seriously after a thorough process, the Prosecutor
would be expected to pursue the case with vigor and
conviction to secure a conviction.

If the outcome goes against the Prosecution, any

self-respecting Prosecutor would feel disappointed
because you take professional pride in your work.
However, professional pride should never come in the
way of the pursuit of the truth because nobody has
the right to sacrifice justice to achieve
professional success. Whenever the eventual decision
is adverse to the Prosecution, one should at least
take some comfort in the fact that the outcome was
derived after strict observance of due process, which
is the cornerstone of our justice system.

Prosecuting attorneys represent local, state or

federal governments in criminal court cases. In
addition to trying cases, they also interview
witnesses or victims, evaluate police reports and
perform legal research to plan the prosecution of
each case (Prosecuting Attorney: Job Description,
Duties and Requirements, 2013).

In the speech of Judge Steven Chong at Singapore in

2011, he said that it is crucial to recognize that
the ethical duty owed by the Prosecution can be
distinguished from that owed by private law
practitioners in at least three material respects:
(a) First, life and liberty are at stake in most
prosecutions. Some sentences are irremediable and
irreversible. The death penalty comes immediately to
mind. Any miscarriage of justice would diminish the
standing of both the Court and the Prosecution in
the eyes of the public. In the words of Yong CJ in
his Keynote Address at the 1998 Subordinate Courts
Work Plan Seminar, “[the] risks of the innocent being
convicted … must be as low as human fallibility
allows”. There is therefore a strong public interest
mandating the strict adherence of the Prosecution’s
ethical duties before the courts. In short, there is
simply no margin for error.

(b) Second, the threshold required to overturn a

conviction on appeal is fairly high. Where
convictions hinge on the trial judge’s assessment of
the demeanor, credibility or veracity of witnesses,
the appellate court will only interfere if the
finding of fact was plainly wrong, unreasonable or
against the weight of evidence. Where sentences are
concerned, the appellate court will be slow to
interfere except where the trial judge had erred
factually or in principle, or where the sentence was
manifestly excessive or manifestly inadequate. While
one may observe that a similar standard applies to
civil trials (insofar as findings of fact are
concerned), the constraints that the appellate court
faces, when coupled with the first point on the
consequences of a wrong finding, makes it an even
more compelling case for this ethical duty to be
strictly adhered to before all courts.
CONCLUSION

To conclude, the prosecutor charges suspects,

continuously researches the case, presents a plea
bargain to a suspect and his attorney, questions
witnesses for the prosecution and cross-examines the
defendant’s witnesses and after conviction of the
criminal. The prosecutor also presents a sentencing
recommendation to the judge. Thus, the Prosecution
has done a very good job in ensuring that we have a
fair and effective criminal justice system.

The prosecutor knows and abides by the ethical rules

regarding conflicts of interest that apply in the
jurisdiction, and is sensitive to facts that may
raise conflict issues. When a conflict requiring
recusal exists and is non-waivable, or informed
consent has not been obtained, the prosecutor recuses
from further participation in the matter. The office
does not go forward until a non-conflicted
prosecutor, or an adequate waiver, is in place.

The prosecutor does not represent a defendant in

criminal proceedings in the prosecutor’s
jurisdiction.

Moreover, the prosecutor is an administrator of

justice, an advocate, and an officer of the court
thus the prosecutor must exercise sound discretion
in the performance of his or her functions.

Furthermore, it is an important function of the

prosecutor to seek to reform and improve the
administration of criminal justice.
REFERENCES:

1. THE REVISED RULES OF CRIMINAL PROCEDURE (As

amended, December 1, 2000) accessed last
November 10, 2018 at
https://www.lawphil.net/courts/rules/rc_110-
127_crim.html

2. PROSECUTOR – A PART OF THE LEGAL SYSTEM Anders

Perklev January 2018

3. Steven Chong Judge Supreme Court 10 November

2011 Talk delivered by Justice Steven Chong to
Legal Service Officers and Assistant Public
Prosecutors
4. PUBLIC SAFETY—MUNICIPAL COURTS, JUDGES AND
PROSECUTORS ADDENDUM, supra note 9, app. fig.3.

5. Journal of Law and Policy accessed last Nov 9,

2018 at
https://openscholarship.wustl.edu/law_journal_l
aw_policy/?utm_source=openscholarship.wustl.edu
%2Flaw_journal_law_policy%2Fvol51%2Fiss1%2F9&ut
m_medium=PDF&utm_campaign=PDFCoverPages

6. United States Supreme Court BERGER v. UNITED

STATES, (1935)No. 544 Argued: Decided: April
15, 1935 accessed last November 9, 2018 at
https://caselaw.findlaw.com/us-supreme-
court/295/78.html

7. Prosecuting Attorney: Job Description, Duties

and Requirements accessed last November 9, 2018
at
https://study.com/articles/Prosecuting_Attorney
_Job_Description_Duties_and_Requirements.html
INTRODUCTION

DEFENSE LAWYER

According to the United Nations, all persons are

entitled to call upon the assistance of a lawyer of
their choice to protect and establish their rights
and to defend them in all stages of criminal
proceedings.

At the same time, the government shall ensure that

efficient procedures and responsive mechanisms for
effective and equal access to lawyers are provided
for all persons within their territory and subject
to their jurisdiction, without distinction of any
kind, such as discrimination based on race, color,
ethnic origin, sex, language, religion, political or
other opinion, national or social origin, property,
birth, economic or other status.

Moreover, the government shall ensure the provision

of sufficient funding and other resources for legal
services to the poor and, as necessary, to other
disadvantaged persons. Professional associations of
lawyers shall cooperate in the organization and
provision of services, facilities and other
resources.

Furthermore, the government and professional

associations of lawyers shall promote programs to
inform the public about their rights and duties under
the law and the important role of lawyers in
protecting their fundamental freedoms. Special
attention should be given to assisting the poor and
other disadvantaged persons so as to enable them to
assert their rights and where necessary call upon
the assistance of lawyers.

Criminal justice system has three main parts

consisting of a judge and/or jury, the prosecutor
and the defense lawyer in which each part has its
roles and corresponding duties. The judge and/or jury
render an impartial decision or verdict to whom the
presiding judge and/or jury also listens to the
arguments and facts provides by both sides: the
prosecutor and the defense (American Bar
Association, 2016).

Usually, the prosecutor represents the office of the

district attorney. This body takes responsibility
for criminal prosecutions which are within their
jurisdiction and competence. The prosecutor presents
a case to convince a judge or jury that the suspect
is guilty. To ground the case, he attempts to gain
evidence against the accused (The Margarian Law Firm,
2017).

On the other hand, the defendant represents the

defense by either hiring a defense attorney or the
court appoints a public defender if the defendant
cannot pay the fees for an attorney in which the
defense attorney should argue the case and prove the
innocence of the suspect, who is his client.

It is important that there should be a defense lawyer

and another prosecutor because both cannot exist as
both to avoid conflict of interest.
Imagine a criminal justice system in which one lawyer
is the prosecutor, and defense attorney?

A single lawyer is not in all two roles in the same

case, but rather holds different roles in different
cases in different municipalities— often at the same
time.

As used in this paper, “defense counsel” means any

attorney – including privately retained, assigned by
the court, acting pro bono or serving indigent
defendants in a legal aid or public defender’s office
– who acts as an attorney on behalf of a client being
investigated or prosecuted for alleged criminal
conduct, or a client seeking legal advice regarding
a potential, ongoing or past criminal matter or
subpoena, including as a witness (Criminal Justice
Standards for the Defense Function, 2016 ).

This term is intended to apply in any context in

which a lawyer would reasonably understand that a
criminal prosecution could result. The Standards
are intended to serve the best interests of clients,
and should not be relied upon to justify any decision
that is counter to the client’s best interests. The
burden to justify any exception should rest with the
lawyer seeking it.

Defense counsel is essential to the administration

of criminal justice. A court properly constituted
to hear a criminal case should be viewed as an entity
consisting of the court including judge, jury, and
other court personnel, counsel for the prosecution,
and counsel for the defense.
The American Bar Association (ABA) says that a
defense counsel has the difficult task of serving
both as officers of the court and as loyal and
zealous advocates for their clients. The primary
duties that defense counsel owe to their clients, to
the administration of justice, and as officers of
the court, are to serve as their clients’ counselor
and advocate with courage and devotion; to ensure
that constitutional and other legal rights of their
clients are protected; and to render effective, high-
quality legal representation with integrity.

Moreover, the defense counsel should know and abide

by the standards of professional conduct as expressed
in applicable law and ethical codes and opinions in
the applicable jurisdiction. Aside from that, the
defense counsel should seek out supervisory advice
when available, and defense counsel organizations as
well as others should provide ethical guidance when
the proper course of conduct seems unclear. Defense
counsel who disagrees with a governing ethical rule
should seek its change if appropriate, and directly
challenge it if necessary, but should comply with it
unless relieved by court order.

ABA further explains that a defense counsel is the

client’s professional representative, not the
clients alter-ego. Defense counsel should act
zealously within the bounds of the law and standards
on behalf of their clients, but have no duty to, and
may not, execute any directive of the client which
violates the law or such standards. In representing
a client, defense counsel may engage in a good faith
challenge to the validity of such laws or standards
if done openly.

In addition, such counsel should seek to reform and

improve the administration of criminal justice. When
inadequacies or injustices in the substantive or
procedural law come to defense counsel’s attention,
counsel should stimulate and support efforts for
remedial action. Defense counsel should provide
services to the community, including involvement in
public service and Bar activities, public education,
community service activities, and Bar leadership
positions. A public defense organization should
support such activities, and the office’s budget
should include funding and paid release time for such
activities.

Furthermore, the defense counsel should be

knowledgeable about, and consider, alternatives to
prosecution or conviction that may be applicable in
individual cases, and communicate them to the client.
He should be available to assist other groups in the
community in addressing problems that lead to, or
result from, criminal activity or perceived flaws in
the criminal justice system.
CONCLUSION

Based on the preceding paragraphs, the criminal

defense lawyer plays a significant role in the
judicial and legal system.

A defense lawyer or counsel does not simply question

witnesses when representing an accused person in
court. The lawyer also makes sure that the client is
afforded all of the protections provided through the
laws and constitutions of federal and state
governments.

The accused directly benefits from a defense counsel

as the accused may hire a criminal defense lawyer to
help with counsel and representation dealing with
police or other investigators, perform his or her
own investigation, and at times present exculpatory
evidence that negates potential charges by the
prosecutor.

Defense counsel is professionally bound to advance

all arguments ethically permitted on behalf of the
accused, to ensure that the accused is convicted only
if the government can properly establish guilt.
REFERENCES:

1. AMERICAN BAR ASSOCIATION: Fourth Edition of the

CRIMINAL JUSTICE STANDARDS for the DEFENSE
FUNCTION published last June 16, 2016.
2. Criminal Justice Standards for the Defense
Function published last June 16, 2016, accessed
last November 9, 2018 at
https://www.americanbar.org/groups/criminal_jus
tice/standards/DefenseFunctionFourthEdition
3. What is the Difference Between Defense Lawyer
and Public Prosecutor? Accessed last November 9,
2018 at https://margarianlaw.com/defense-
lawyer-public-prosecutor/