During the Cold War, the United States and Soviet Union did not trust each other, but instead negotiated with each other because each had enough nuclear weapon firepower practically or actually to decimate humanity.

Similarly, criminal defense lawyers and their clients must beware trusting prosecutors, just as civil lawyers need to bewared trusting their opposing lawyers. Prosecutors and lawyers are beholden to their clients and employers, not to their opposing lawyers. Do not expect that opposing lawyers will always play fair, nor live by the golden rule. The litigation fight can get dirty.

That is not to say to be paranoid about all opposing lawyers, nor to avoid all handshake agreements. It does mean that by proceeding with caution about relying on a prosecutor’s words, motivations, and winks, the defense loses nothing.

Here are some of my experiences that inform the foregoing approach:

– I worked out a great negotiation for my misdemeanor client to have his case dismissed on the next court date upon proof of completing an agreed number of hours of community service. It is a good thing that I got this agreement memorialized at the outset, because a different prosecutor was present on the next court date, acted irritated about the deal I had made with his colleague on the previous court date, and said that if I wanted the dismissal I needed to find the original prosecutor, which I did and got the case dismissed.

A deal is a deal, and prosecutors must honor the deals of their colleagues. This was a low point for this prosecutor who declined to effectuate his colleague’s deal with me, and I will always particularly watch my back with this prosecutor. On the other hand, his colleague who had reached the deal with me is always above-board with me, which makes it easier for me to deal with him, whereas if his recalcitrant colleague told me the sky is blue, I would almost be inclined to go outside and check for myself.

– A prosecutor once talked at length about my seemingly good chances of obtaining a felony sentence favorable to my requested sentence, even though he was going to seek a higher sentence. Then, at the sentencing hearing, the prosecutor proceeded into a harangue about why my client needed to receive a substantial sentence. I received close to the sentence that I had requested, and did not let the prosecutor’s pre-hearing banter diminish nor water down my presentation for sentencing to the judge. If some prosecutors think they can talk their opponents into not fully preparing for court and not sufficiently presenting their cases, any such opponent who takes that bait is a fool.

– A civil litigation colleague of mine once seemed to justify telling certain untruths or exaggerations in negotiating with the opponent, by calling such exaggerations “puffing“. A critical part of succeeding in negotiations and in life is being meticulous — and being known for being meticulous — with telling the truth. That does not mean the criminal defense lawyer should not present his or her case in the most positive light in negotiations, but does mean that honesty is essential at every step. For instance, if I have located a witness who has refused to come to court, I best not tell the prosecutor during negotiations or for any other purpose that the witness is coming to court to say X, Y or Z. Similarly, if I know my witness is going to say A at trial, I best not tell the prosecutor that my witness instead is going to say B.

All of this might sound like common sense, but I have had prosecutors tell me that a witness is in court or coming to court — but is not or may not be coming — merely because the prosecutor assumes the police officer is coming because s/he is scheduled for court that day (what if the officer calls in sick?) or because the prosecutor assumes the witness has been subpoenaed by the police, when that may not be the case.

A non-lawyer might be stunned to learn about the prosecutors who act in such an underhanded or fast-and-loose manner as those described above. However, that is reality, and no complaints about such misdeeds serves as a sufficient replacement for being fully prepared for such misdeeds when they happen in the first place.

None of this is to say that a criminal defense lawyer should minimize communications with prosecutors. Even when a prosecutor is haranguing against a lawyer’s client as “slime”, valuable intelligence might be gleaned from the dung spewing out of that prosecutor’s mouth. Of course, some prosecutors are underhanded or unaware enough to begin that harangue within earshot of the defendant, which generally is not permitted without the criminal defense lawyer’s okay, when the matter is not before the judge. When a prosecutor tries discussing my client’s case within my client’s earshot, I stop that from happening by telling the prosecutor to stop, by walking away, or by signaling for my client to walk away.

Some of the most disappointing interactions with prosecutors can be when the more fair and human prosecutors become the opposite, whether or not doing so within the bounds of the attorneys’ rules of professional conduct. When criminal defense lawyers remember that prosecutors’ loyalties are not to the defense, and that there are prosecutors who simply cannot be trusted, then the defense lawyer will not be debilitated when a prosecutor crosses the defense lawyer’s path, but will proceed with the same strength and determination as one would in fighting a non-human animal. We expect nothing from non-human animals (except for expecting love from our pets), and when we expect nothing from our opponents, none of their misdeeds phase nor weaken us.