Slipping Away from Justice: the Effect of Attorney Skill on Trial Outcomes
Shinall, Jennifer B.
Shinall, Jennifer Hope Bennett
Just how important is a good attorney? Can a skillful attorney actually change the verdict? More importantly, in criminal trials, can a good defense attorney let guilty people go free, or can a good prosecutor send innocent people to jail? Every day, as more highprofile defendants find themselves in court, the anecdotal evidence of this attorney skill effect continues to mount. Yet no one has decisively answered these questions-not only for high-profile defendants, but for the everyday defendant as well. This Note will argue that a skillful defense attorney is not as powerful as popular opinion would lead us to believe. Here, I define skill as the qualities that an attorney brings to the courtroom independent of his case's strength, such as rhetorical abilities, tactical strategies, and knowledge of the law. Regardless of their skill, criminal defense attorneys do not have a statistically significant effect on the verdict or sentencing outcomes. Prosecuting attorneys, on the other hand, can influence trial outcomes. A jury is more likely to convict a defendant when the prosecutor has a high level of skill. Although important for many reasons, Prosecutorial skill is particularly critical since the prosecution has the burden of proof in a criminal trial. This outcome that emphasizes the impact of prosecutorial skill-running so contrary to our everyday beliefssuggests that we have been focusing on the wrong side. Just like Fred Goldman, we are quick to blame the defense attorneys when we think a high-profile defendant has slipped away from justice. For more lowprofile defendants, we are overly preoccupied with the adequacy of, and the disparities in, defense attorneys. Yet we should really be concerned about the disparities in prosecutors. To demonstrate the importance of prosecuting attorney skill, Part II of this Note first considers previous literature from law and other disciplines on the impact of attorney skill. Part III discusses the data set used to conduct this study, and Part IV outlines the model of the attorney skill effect. Part V gives the results of the data analysis and demonstrates the effect of prosecuting attorney skill on trial outcomes-and the lack of effect of defense attorney skill on trial outcomes. Part VI argues that public attention should shift away from defense attorneys and onto prosecutors. If we expect defendants to receive a fair trial, we need to devote more resources to ensuring that prosecutors are well qualified and adequately trained to eliminate the disparities between them. Part VII concludes by relating these results to the attorney skill effect so often discussed in the popular press.