Prosecutor’s Advantages ▪ Criminal Law

As criminal defense attorneys, we tell our clients about their many constitutional protections. Some basic constitutional guarantees come to mind such as the right to remain silent and that the accused is innocent until proven guilty beyond a reasonable doubt. However, the reality of what truly happens in a criminal prosecution is that the accused is oftentimes at a significant disadvantage in defending his or her innocence. From the viewpoint of a Charleston criminal lawyer, here are some examples:

1. The prosecution, through law enforcement, is the first on the scene, developing evidence, interviewing witnesses, and even compelling the production of documents from third parties. Afterwards, the accused must rely on the integrity (and the diligence) of the prosecution and law enforcement to allow the defendant to examine all of the evidence for or against the accused.

2. The prosecutor decides who to prosecute, which charges to brings, and (to a large extent) when the case will be tried by the court.

3. In many cases, the prosecution’s resources are unmatched by the defense in that the prosecution has the assistance of law enforcement, forensic scientists and expert witnesses, and greater resources for investigating, preparing, and trying the case.

4. Jurors are often inclined to believe the testimony of uniformed police officers over that of someone accused of a crime. Indeed, some jurors believe that a criminal defendant must have done something wrong to be in the position of facing criminal charges. In other words, in the minds of some jurors, the accused is guilty before the trial even begins not matter what the law says.

5. Defense witnesses’ testimony may be “chilled” by the prospect of any perjury charges. Perjury charges are rarely, if ever, brought by the prosecution against their own witnesses.

6. The prosecution may offer to drop pending criminal charges or reduce a potential sentence or penalty in exchange for a witness’s testimony against the defendant. The defense does not have this tool/power.

Now, defendants in South Carolina face another possible disadvantage in a criminal prosecution. One of the accused’s protections is the right to be tried before a fair and impartial jury. For decades in South Carolina, the accused has been entitled to a greater number of “peremptory challenges” during the jury selection process for certain crimes. A peremptory challenge allows either the accused or the prosecution to reject a potential juror from serving during the trial. As long as the juror is not rejected on the basis of gender, race, age, or religious beliefs, then the juror may be rejected for any reason whatsoever. The long-standing purpose of peremptory challenges is to guarantee the selection of a qualified and unbiased jury by allowing both the defense and the prosecution to exclude those potential jurors who may be partial towards one side or the other. The goal of an impartial jury is hindered by procedures that take away from the use of peremptory challenge.

Recently, one of our state’s representatives filed a bill that, if approved, would equalize the number of peremptory challenges between the prosecution and defense in certain crimes. If passed, this bill would neutralize one of the advantages for the defense, thereby shifting the balance further in favor of the prosecution in a criminal case.

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