Criminal Defense Lawyers

Dealing with Aggressive Prosecutors: A Guide for Defense Attorneys

When you’re a defense attorney, one of the toughest things you can face is an overzealous or downright aggressive prosecutor. I feel for anyone who has to deal with that – it can’t be easy. But there are some things you can do to protect your client’s rights and get the best possible outcome.
First off, don’t take it personally. I know, easier said than done. But these prosecutors aren’t necessarily out to get you specifically – they just have a very black-and-white, punishment-driven view of justice. Keeping a level head is key.
Second, know your client’s rights inside out. Be ready to firmly but politely intervene if the prosecutor tries to violate due process, ignore privilege, or engage in misconduct. Refer them to the relevant caselaw and ethical guidelines like Model Rules of Professional Conduct if needed.
For example, if they fail to share exculpatory evidence, cite Brady v. Maryland and request a good faith disclosure of all potentially favorable materials . If they misrepresent facts, question the ethics of that approach by referring to ethics opinions on candor towards the tribunal .
Third, thoroughly investigate the case yourself. Don’t just rely on what the prosecution hands over – dig deeper. File lots of motions testing the evidence, interview all witnesses, hire experts to review materials and challenge overstated forensics or police testimony. This can uncover holes or question marks you can use to raise reasonable doubt.
Fourth, consider using affirmative defenses if the facts allow it. For example, in assault cases, look into provocation or self-defense arguments. For drug cases, research medical necessity defenses. Get creative – force the prosecution to prove otherwise, which isn’t always easy.
Fifth, don’t be afraid to take it to trial. Lots of aggressive prosecutors stack charges or overcharge to intimidate defendants into pleading out. But their scorched earth tactics can sometimes backfire with juries. So gauge the sentiments in your venue and see if a trial is viable to call their bluff.
Ultimately, the best defense against an aggressive prosecutor is being uber-prepared, sticking to high ethics, and not stooping to their level. Kill them with kindness and objectivity – that can fluster anyone who’s being overly emotional or playing dirty. It’s not fun dealing with these types, but staying resolute and rising above is key to surviving the ordeal while protecting your clients rights. You’ve got this!

Common Aggressive Tactics and How to Respond

Aggressive prosecutors have a whole playbook of underhanded tactics they use to try gaining an advantage. Here’s some common ones and tips on responding:
Withholding exculpatory evidence
This illegal tactic happens more often than people realize. If you suspect they aren’t sharing materials that could help your case, file a formal request citing Brady v. Maryland and ask the judge to demand disclosure or review their files.
Misstating facts or evidence
If they misrepresent a key detail to make things seem worse, object immediately and ask them to correct the record. Refer to ethics Rule 3.3 on candor if needed to shame them.
Piling-on excessive charges
File motions to dismiss redundant charges and consolidate others. Point out vindictiveness if charges get boosted after you refuse a plea deal. Remind them justice should be the goal – not piling-on charges.
Intimidating witnesses
If they bully witnesses who won’t change their testimony, seek protective orders against retaliation. Refer them to ethics rules on witness coercion and file complaints if needed.
Withholding plea deal details
Don’t let them obscure the details of plea offers. Create written draft agreements for transparency and accountability. If beneficial terms suddenly disappear, object to vindictiveness.
Threatening the maximum
Brush off threats of “we’ll ask for the maximum if this goes trial!” Point out sentencing guidelines don’t support such a request and the defense will highlight prosecutorial overreach.
The key is calling them out respectfully but firmly, and not stooping to their level. Take the high road and let their own misconduct or overzealousness undermine their credibility. The truth usually prevails when you stick to ethics and the facts.

When to File Complaints Against an Aggressive Prosecutor

Most concerning prosecutorial behavior violates ethics rules like the Model Rules of Professional Conduct. If an aggressive prosecutor crosses serious lines, filing ethics complaints can be appropriate to protect your client’s rights and seek accountability.
For example, failing to disclose significant exculpatory evidence likely violates Rule 3.8 on special responsibilities of prosecutors . Deliberately misstating facts or evidence likely violates Rule 3.3 on candor towards the tribunal .
If you have clear proof of such violations, filing a complaint with the head prosecutor or state bar can be appropriate. First speak to the prosecutor privately to give them a chance to correct their behavior. If they refuse, detail the incidents and ethics breaches in a formal complaint seeking sanctions or removal from the case.
Stick to the facts and use an objective tone focused on ethics and due process. Avoid accusations or subjective critiques that could undermine your position. The goal should be protecting your client’s rights and the integrity of the system – not attacking the prosecutor. Still, don’t hesitate to take action in egregious cases where misconduct threatens justice and fairness.

Using Caselaw to Rein in Aggressive Prosecutors

When prosecutors disregard ethics and push the envelope too far, there’s often relevant caselaw you can cite to rein them in. Understanding these precedents is key to keeping aggressors in check.
For example, if they fail to disclose helpful evidence, Brady v. Maryland imposes obligations to share exculpatory materials with the defense . If they bully witnesses, Webb v. Texas prohibits threatening witnesses to keep them from testifying .
Other notable decisions include:

• Rochin v. California – barred evidence obtained through misconduct
• Berger v. United States – prosecutors must refrain from improper methods calculated to produce a wrongful conviction
• Kyles v. Whitley – expands requirements for evidence disclosure

Mastering caselaw gives you specific precedents to cite when aggressive behavior crosses the line. Most prosecutors will back down and correct course once key decisions are referenced. So read up on key cases and don’t hesitate to use them to defend your client’s rights.

When to Seek Removal of Prosecutor from a Case

In extreme cases of misconduct, seeking the complete removal of a prosecutor from a case may become necessary. But it’s an uphill battle that risks making them dig in their heels more. So this serious step requires clear proof of:

• Repeated ethics violations
• Flagrant disregard of court orders or warnings
• Deliberate, malicious harm to the defendant’s rights
• Inability to approach the case impartially

If you reach this stage, file a formal motion seeking recusal and provide documentation backing up each infraction. Stick to facts and ethics, avoiding ad hominem attacks. Have affidavit support from witnesses if possible.
Be prepared for them to battle hard against removal. So only seek this route after other efforts fail and ongoing misconduct makes a fair trial impossible. The judge may be reluctant too, so have ironclad justification ready.
And highlight that removing one prosecutor doesn’t get the defendant “off the hook” – it just brings in an impartial lawyer who won’t undermine justice through win-at-all-costs tactics. Removing a corrupted prosecutor can restore integrity that benefits all parties, including the public.

Alternatives to Filing Complaints

Before filing ethics complaints or seeking sanctions, more moderate options can be effective for addressing prosecutor aggression:
Off-the-record feedback: Have a respected senior attorney speak to the prosecutor privately to advise dialling things back. This avoids formal blowback while offering helpful guidance.
Seeking mentoring: The prosecutor’s supervisor could assign a seasoned mentor to advise them on proper litigation practices if aggression seems rooted in inexperience, not malice.
Reminding them of justice standards: At times simply highlighting that prosecutors have special obligations to justice under Rule 3.8 is enough to make an aggressive lawyer reflect and self-correct.
So exhaust reasonable alternatives before going nuclear with complaints and motions for recusal or sanctions. Those aggressive steps can work but also cause the prosecutor to retaliate or stonewall. Informal routes may prove better at curbing excessive zeal if misconduct stems from overeagerness, not ill intentions.

What Not to Do Against Aggressive Prosecutors

It’s vital to handle aggressive prosecutors carefully to avoid undermining your position or client’s interests. Here are some things you should NOT do:

• Lose your cool or become aggressive yourself – always take the high road!
• Make threats about complaints or appeals – just take necessary actions calmly
• Insult them personally or professionally
• Whine excessively to the judge – stick to facts and ethics
• Suppress evidence yourself as retaliation – never sink to their level

Getting punitive or emotional can damage your credibility, divert focus from the issues, and give the advantage back to an aggressive prosecutor. Simply cite the facts and caselaw calmly, seek appropriate remedies, and let their own misconduct speak for itself. The truth becomes obvious if you don’t obscure it with theatrics.
So breathe, stay composed, and remain resolute if you end up against a relentless prosecutor. With ethics, honesty and patience on your side, their aggression will likely be their own undoing in time. You got this!